Citation Nr: 21066796 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 10-43 233 DATE: November 2, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to March 3, 2017 and a rating in excess of 30 percent thereafter for chronic maxillary sinusitis to include nosebleeds is denied. FINDINGS OF FACT 1. For the period prior to March 3, 2017 the Veteran's maxillary sinusitis to include nosebleeds was manifested by no more than three to six non incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. 2. For the period beginning March 3, 2017 the Veteran's maxillary sinusitis to include nosebleeds was manifested by more than six non incapacitating episodes per year of sinusitis characterized by headaches and pain with no evidence of repeated surgeries. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for sinusitis prior to March 3, 2017 have not been met. 38 U.S.C.§ 1155, 5102, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.97, Diagnostic Code 6513. 2. The criteria for a disability evaluation in excess of 30 percent for sinusitis with headaches from March 3,2017 have not been met. 38 U.S.C.§ 1155, 5102, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to December 1987 and from January1991 to May1991. This matter comes before the Board of Veterans' Appeals (Board) following a July 2019 Memorandum Decision from the Court of Appeals for Veterans Claims (the CAVC). The Veteran testified at a hearing before a Decision Review Officer in November 2010. A copy of the hearing transcript is included in the record. The Board remanded this claim in February 2021 for further development. Upon review, all remand directives have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles- Maxillary Sinusitis The Veteran currently has a rating of 10 percent prior to March 3, 2017 and a rating of 30 percent from March 3, 2017 for maxillary sinusitis under diagnostic code 6513. Maxillary sinusitis is rated under the general rating formula for sinusitis. Under the General Rating Formula for Sinusitis, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The maximum evaluation allowable under the general rating formula is 50 percent. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6513. Analysis The Veteran filed an initial claim for service connection for nose bleeds to include maxillary sinusitis in August 2005. A September 2006 rating decision granted a noncompensable rating, effective August 15, 2005. The Veteran filed a claim for an increased rating in February 2009. An August 2009 rating decision denied a rating increase. Following his September 2009 notice of disagreement and October 2009 Form 9, a November 2010 rating decision increased the Veteran's rating to 10 percent effective February 12, 2009. Subsequently, a May 2017 rating decision granted an increased rating to 30 percent disabling, effective March 3, 2017. Entitlement to a rating in excess of 10 percent prior to March 3, 2017. The Veteran is seeking a rating in excess of 10 percent prior to March 3, 2017. A review of the evidence of record shows that for the period prior to March 3, 2017, the Veteran's sinusitis was accompanied with nosebleeds, nasal congestion, sneezing, runny nose, and postnasal drip. The Veteran was afforded a VA examination in June 2009 for his sinusitis. The examiner noted that the Veteran reported chronic nose bleeds of two to three times per month. The Veteran also reported discomfort and headaches associated with non-incapacitating episodes of sinus/nosebleed problems. X-rays showed increased opacity of the bilateral maxillary sinuses, greater on the right, with impression of bilateral maxillary sinusitis. During a hearing before a Decision Review Officer (DRO) in November 2010, the Veteran and his mother testified that the Veteran experienced chronic nosebleeds of two to three times per month and discomfort and headaches associated with non-incapacitating episodes of sinus/nosebleed problems. In a November 2011 general VA examination, the examiner notes that the Veteran has not had episodes of sinusitis during the past 12-month period. The Veteran's sinus examination was normal. The Veteran was afforded another VA examination for sinusitis in October 2014. The Veteran reported having increased nasal congestion especially at night and the beginning of winter. He also reported occasional nosebleeds. The examiner found that the Veteran had headaches, pain and tenderness of the affected sinus, no incapacitating episodes within the prior 12 month period, no obstruction of the nasal passage on both sides greater than 50 percent due to rhinitis, no complete obstruction on the left side due to rhinitis, no complete obstruction on the right side due to rhinitis, no permanent hypertrophy of the nasal turbinates, no nasal polyps, and no granulomatous conditions. Ultimately, based upon the evidence of record, entitlement to an evaluation in excess of 10 percent is not warranted for sinusitis prior to March 3, 2017. As noted above, for a 30 percent rating under Diagnostic Code 6513 the evidence must show three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Such has not been shown in this case. The Veteran reported chronic nose bleeds of two to three times per month in November 2010. The Veteran also reported that he had discomfort and headaches associated with the non-incapacitating episodes of sinus/nosebleed problems in November 2010. However, the VA examinations indicate was no evidence or reports of three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Therefore, the Board finds that the criteria for the next higher 30 percent rating prior to March 3, 2017, have not been met. Similarly, a rating of 50 percent is not warranted. While the Veteran has demonstrated headaches and pain there is no evidence that for the period prior to March 3, 2017 that the Veteran had near constant sinusitis or that he had repeated surgeries for his sinusitis as required for a rating of 50 percent under diagnostic code 6513. In rendering a decision, the Board has considered the lay statements of record and affords them probative weight. However, even considering these lay statements the preponderance of the evidence does not show that the Veteran experiences incapacitating episodes or more than six incapacitating episodes per year as required for a rating of 30 percent. Similarly, the Veteran has not asserted that he has undergone multiple surgeries for his sinusitis. Thus, even considering the Veteran's statements, the evidence shows that the Veteran's symptoms more nearly approximate a rating of 10 percent but no higher. As the preponderance of the evidence is against any higher or separate rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Entitlement to a rating in excess of 10 percent prior to March 3, 2017 is denied. Entitlement to a rating in excess of 30 percent beginning March 3, 2017 and thereafter for maxillary sinusitis. The Veteran is seeking a rating in excess of 30 percent after March 7, 2017. A review of the evidence of record shows that the Veteran's sinusitis was accompanied with nosebleeds, nasal congestion, sneezing, runny nose, and postnasal drip. The Veteran was afforded a VA examination in March 2017. The examiner noted symptoms of headaches, nosebleeds, difficulty sleeping due to problems breathing, coughing, dizziness, and fatigue due to his sinusitis. The examiner also noted that the Veteran had seven or more non-incapacitating episodes within the prior 12-month period. The examiner also found that the Veteran had no incapacitating episodes, no obstruction of the nasal passage on both sides greater than 50 percent due to rhinitis, no complete obstruction on the left side due to rhinitis, no complete obstruction on the right side due to rhinitis, no permanent hypertrophy of the nasal turbinates, no nasal polyps, and no granulomatous conditions. The examiner noted that the Veteran did have nasal surgery to open nasal passages; however, it was not radical surgery. The Veteran underwent another VA examination in March 2020. The examiner continued to note seven or more incapacitating episodes of sinusitis in the past 12 months as well as episodes of headache, pain, and tenderness. There was no evidence of purulent discharge or crusting and no evidence of incapacitating episodes requiring prolonged antibiotic treatment. The examiner noted that the Veteran has not had sinus surgery. The Veteran was afforded another VA examination for sinusitis in May 2021. The Veteran was noted to have headaches, pain, tenderness, nosebleeds two to four times a month and difficulty breathing from the right nostril. The Veteran continued to have seven or more non-incapacitating episodes of sinusitis. No incapacitating episodes of sinusitis were noted. Notably, the examiner explained that the Veteran's August 2016 surgery was for his nose, rather than his sinuses. Notably, while the examiner asserts that the Veteran had surgery for his nose rather than his sinuses, the Board has still considered the Veteran's nose surgery. Nonetheless, the record contains no evidence of any subsequent surgeries and no evidence of radical surgeries. Based upon the evidence of record entitlement to an evaluation in excess of 30 percent is not warranted for sinusitis after March 7, 2017. For a 50 percent rating under Diagnostic Code 6513, the evidence must show radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Such has not been shown in this case. VA examinations demonstrate that the Veteran has seven or more non-incapacitating episodes within a 12-month period. However, there have been no incapacitating episodes requiring prolonged antibiotics treatment. Additionally, the examination showed that the Veteran did have nasal surgery to open nasal passages; however, it was not radical surgery. Further, while the record shows symptoms of headaches, tenderness and pain, there is no evidence that the Veteran required multiple surgeries for his sinusitis and no evidence of purulent discharge or crusting. Therefore, the Board finds that the criteria for the next higher 50 percent rating have not been met. The Board has also considered whether a higher rating is available other diagnostic criteria. Although treatment records reflect diagnoses of a partially deviated septum and allergic rhinitis, his service-connected disability is only sinusitis. As the Veteran's actual symptoms are specifically contemplated by Diagnostic Code 6513, the Board concludes that a rating under other diagnostic codes in38 C.F.R. § 4.97(2017) is not warranted. The Veteran's representative has argued that the Veteran's disability may warrant extraschedular consideration. Upon review of the evidence, The Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. Extraschedular consideration is not warranted in this case. Entitlement to a rating in excess of 30 percent beginning March 3, 2017 and thereafter for chronic maxillary sinusitis, to include nosebleeds is not warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.