Citation Nr: 21068038 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-50 091A DATE: November 8, 2021 ORDER Entitlement to a rating in excess of 30 percent, from December 9, 2014 through April 14, 2015, and a rating in excess of 10 percent, from April 15, 2015, for chronic maxillary sinusitis, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from August 8, 2016 through September 30, 2017, is dismissed. Entitlement to a TDIU, from October 1, 2017, but no earlier, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. From December 9, 2014 through April 14, 2015, the Veteran did not undergo any surgery due to his chronic maxillary sinusitis. 2. Since April 15, 2015, the Veteran's chronic maxillary sinusitis has been manifested by at most 5 non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting during a 12- month period; he has not experienced any incapacitating episodes requiring prolonged (4 to 6 weeks) of antibiotics treatment during any 12-month period and has not undergone any surgical procedures for sinusitis. 3. As a 100 percent rating and special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) have been awarded for the entire period from August 8, 2016 through September 30, 2017, the issue of entitlement to a TDIU during this period is rendered moot. 4. Since December 9, 2014, the Veteran has been service-connected for the following disabilities: obstructive sleep apnea, rated 50 percent disabling; right knee injury with arthritis, postoperative, rated 30 percent disabling through August 7, 2016; total right knee replacement with laxity, rated 100 percent disabling, from August 8, 2016 through September 30, 2017, and 30 percent disabling, from October 1, 2017; hypertension, rated 10 percent disabling; right knee injury with arthritis, painful motion, rated 10 percent disabling through August 7, 2016; tinnitus, rated 10 percent disabling; chronic maxillary sinusitis, rated 30 percent disabling, prior to April 15, 2015, and 10 percent disabling, since that date; allergic rhinitis, rated noncompensable, prior to May 12, 2016, and 10 percent disabling, since that date; injury, left middle finger with tuft fracture of distal phalanx, rated noncompensable; tinea pedis and cruris, rated noncompensable; right knee, left middle finger, and right thumb scars, rated noncompensable; erectile dysfunction, rated noncompensable; bilateral hearing loss, rated noncompensable; left middle finger scar, rated noncompensable, from March 2, 2018; right thumb scar, rated noncompensable, from March 2, 2018; right knee scars, rated noncompensable, from March 2, 2018; papilla, both upper eyelids, rated noncompensable; and right thumb instability, ulnar collateral ligament due to injury, postoperative, with degenerative joint disease, rated 10 percent disabling, prior to April 16, 2018, and noncompensable, since that date; his combined disability rating is 80 percent from December 9, 2014 through August 7, 2016, 100 percent from August 8, 2016 through September 30, 2017, and 80 percent from October 1, 2017. 5. Since October 1, 2017, the Veteran's service-connected disabilities have precluded all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent, from December 9, 2014 through April 14, 2015, and a rating in excess of 10 percent, from April 15, 2015, for chronic maxillary sinusitis, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.97, Diagnostic Code (DC) 6513. 2. The question of whether the Veteran is entitled to a TDIU, during the period from August 8, 2016 through September 30, 2017, is rendered moot by his receipt of a 100 percent rating and SMC pursuant to 38 U.S.C. § 1114 (s) during this entire period, leaving no question of law or fact to decide regarding the TDIU issue during this period. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16. 3. The criteria for a TDIU due to service-connected disabilities, from October 1, 2017, but no earlier, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to November 1986. These matters initially came before the Board of Veterans' Appeals (Board) from a June 2015 rating decision. In May 2019, the Board expanded the appeal to include the issue of entitlement to a TDIU as part and parcel of the claim for an increased rating for chronic maxillary sinusitis. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the matter of entitlement to an increased rating for chronic maxillary sinusitis, for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to obtain all outstanding private and VA treatment records and to afford the Veteran a VA examination to assess the severity of his service-connected sinusitis. Pursuant to the Board's remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of an October 2019 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Moreover, all outstanding relevant VA and private treatment records were obtained and associated with the claims file and the Veteran was afforded an examination to assess the severity of his service-connected sinusitis in January 2020. Therefore, the AOJ substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). I. Increased Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 30 percent, from December 9, 2014 through April 14, 2015, and a rating in excess of 10 percent, from April 15, 2015, for chronic maxillary sinusitis The Veteran's chronic maxillary sinusitis is rated under 38 C.F.R. § 4.97, DC 6513. Sinusitis is rated according to the General Rating Formula for Sinusitis (General Rating Formula). Under the General Rating Formula, the following ratings apply: 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 rating is warranted for 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; and a 50 percent rating is warranted for chronic sinusitis following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, DC 6513. A note accompanying DC 6513 states that an incapacitating episode is defined as one requiring bed rest and treatment by a physician. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that a rating in excess of 30 percent, from December 9, 2014 through April 14, 2015, and a rating in excess of 10 percent, from April 15, 2015, for chronic maxillary sinusitis, are not warranted. The Veteran's claim for an increased rating for chronic maxillary sinusitis was received on December 9, 2014. Medical records dated from December 2013 to January 2015 and the report of a VA sinusitis examination dated on April 15, 2015 indicate that the Veteran required continuous medical management of his sinusitis and that his disability was worse during particular allergy seasons each year. He experienced episodes of sinusitis with cough and congestion, and continuous medical treatment (i.e., ipratropium, chlorpheniramine, and cetirizine) was required for control of his symptoms. He had experienced 3 non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting during the previous 12 months, but had not experienced any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment during the previous 12 months and had not undergone any sinus surgery. Examinations revealed inflammation and moderate edema of the turbinates of the nasal mucosa and tender maxillary sinuses bilaterally. He did not have any chronic laryngitis, laryngectomy, laryngeal stenosis, pharyngeal injury, any other pharyngeal condition, deviated nasal septum due to trauma, or any benign or malignant neoplasm or metastases related to his sinus disability. There were no scars related to the Veteran's disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having chronic sinusitis and allergic rhinitis. These disabilities did not impact his ability to work. VA treatment records dated from December 2015 to May 2017 and a July 2017 VA sinusitis examination report indicates that the Veteran experienced episodes of sinusitis with headaches, pain and tenderness of the affected sinus, and purulent discharge. He had experienced 5 non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting during the previous 12 months. He was prescribed antibiotics in May 2017 for a two week history of a sinus infection, but the July 2017 examination report specifies that he had not experienced any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment during the previous 12 months. He had not undergone any sinus surgery. Examinations revealed red and swollen bilateral nasal turbinates and tender frontal and maxillary sinuses. There were no scars related to the Veteran's disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. A diagnosis of chronic maxillary sinusitis was provided. This disability did not impact the Veteran's ability to work. Medical records dated in February 2019 and January 2020 and the report of a January 2020 VA sinusitis examination reveal that the Veteran experienced allergies and episodes of sinusitis with daily nasal congestion/rhinitis, sinus pain and pressure, tenderness of the affected sinus, morning headaches, and sinus drainage. He used antibiotics and other medications (i.e., cetirizine and flonase). He had not experienced any non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting or any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment during the previous 12 months. He had not undergone any sinus surgery. There were no scars related to the Veteran's disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having chronic maxillary sinusitis. This disability impacted his ability to work in that he experienced difficulty working in outside environments with allergens. The above evidence reflects that during the claim period from December 9, 2014 through April 15, 2015, the Veteran had not undergone any surgical procedures for his sinusitis. Therefore, a rating in excess of 30 percent for his chronic maxillary sinusitis is not warranted at any time during this period. With respect to the claim period since April 15, 2015, the above evidence reflects that the Veteran has experienced at most 5 non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting during any 12- month period. He has not experienced any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment during any 12-month period and has not undergone any surgical procedures for sinusitis. In light of this evidence, the Board finds that the symptoms of the Veteran's service-connected sinusitis have most closely approximated the criteria for a 10 percent rating under the General Rating Formula during the entire claim period since April 15, 2015. In sum, a rating in excess of 30 percent, from December 9, 2014 through April 14, 2015, and a rating in excess of 10 percent, from April 15, 2015, for chronic maxillary sinusitis, is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.97, DC 6513. As a final matter, the Board finds that, in conjunction with the claim for an increased rating for chronic maxillary sinusitis, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. TDIU VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31. Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. 1. Entitlement to a TDIU due to service-connected disabilities, from August 8, 2016 through September 30, 2017 The Veteran is in receipt of a 100 percent rating during the entire claim period from August 8, 2016 through September 30, 2017. Hence, there remains no time during this period where the schedular rating is "less than total," as required for a TDIU. See 38 C.F.R. § 4.16 (a). The Board is cognizant of the fact that the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating based on a single service-connected disability may still form the basis for assignment of SMC pursuant to 38 U.S.C. § 1114 (s). See Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran has already been awarded SMC pursuant to 38 U.S.C. § 1114 (s) during the period from August 8, 2016 through September 30, 2017. Therefore, the issue of entitlement to a TDIU, from August 8, 2016 through September 30, 2017, must be dismissed as moot. 2. Entitlement to a TDIU due to service-connected disabilities, from December 9, 2014 through August 7, 2016 and from October 1, 2017 Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran's service-connected disabilities have precluded all substantially gainful employment for which his education and occupational experience would otherwise qualify him during the claim period from October 1, 2017, but no earlier pertinent period. As explained above, the Veteran's TDIU claim is on appeal as part and parcel of his claim for an increased rating for chronic maxillary sinusitis. Therefore, the claim period for the TDIU matter dates back to the December 9, 2014 date of receipt of his increased rating claim. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). Since December 9, 2014, the Veteran has been service-connected for the following disabilities: obstructive sleep apnea, rated 50 percent disabling; right knee injury with arthritis, postoperative, rated 30 percent disabling through August 7, 2016; total right knee replacement with laxity, rated 100 percent disabling, from August 8, 2016 through September 30, 2017, and 30 percent disabling, from October 1, 2017; hypertension, rated 10 percent disabling; right knee injury with arthritis, painful motion, rated 10 percent disabling through August 7, 2016; tinnitus, rated 10 percent disabling; chronic maxillary sinusitis, rated 30 percent disabling, prior to April 15, 2015, and 10 percent disabling, since that date; allergic rhinitis, rated noncompensable, prior to May 12, 2016, and 10 percent disabling, since that date; injury, left middle finger with tuft fracture of distal phalanx, rated noncompensable; tinea pedis and cruris, rated noncompensable; right knee, left middle finger, and right thumb scars, rated noncompensable; erectile dysfunction, rated noncompensable; bilateral hearing loss, rated noncompensable; left middle finger scar, rated noncompensable, from March 2, 2018; right thumb scar, rated noncompensable, from March 2, 2018; right knee scars, rated noncompensable, from March 2, 2018; papilla, both upper eyelids, rated noncompensable; and right thumb instability, ulnar collateral ligament due to injury, postoperative, with degenerative joint disease, rated 10 percent disabling, prior to April 16, 2018, and noncompensable, since that date. His combined disability rating is 80 percent from December 9, 2014 through August 7, 2016, 100 percent from August 8, 2016 through September 30, 2017, and 80 percent from October 1, 2017. The remaining question is whether his service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him at any pertinent point from December 9, 2014 through August 7, 2016 or since October 1, 2017. In addition to the evidence set forth above, the reports of VA examinations dated in June 1989 and April 1990, an August 1990 United States Civil Service Commission Certificate of Medical Examination, VA treatment records dated in January 1994 and December 1996, a February 2001 VA mental health initial assessment note, an April 2004 VA orthopedics consultation note, a July 2005 VA treatment record, a May 2010 VA orthopedic surgery note, a July 2010 VA examination report, the reports of VA audiological and knee examinations dated in April 2015, a November 2015 VA audiological examination report, the report of a December 2015 VA knee examination, the reports of VA hand and audiological examinations dated in June 2016, an October 2016 VA knee examination report, a November 2016 Knee and Lower Leg Conditions Disability Benefits Questionnaire (VA Form 21-0960M-9), the reports of VA sleep apnea and knee examinations dated in September 2017, an October 2017 "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940), the reports of VA sleep apnea and knee examinations dated in January 2018, the reports of VA audiological and hand examinations dated in April 2018, and the reports of VA knee and sleep apnea examinations dated in August 2018 indicate that the Veteran has a high school education and that following service he worked in security and as a mechanic's helper, a mechanic, a warehouse worker, a mobile equipment worker, and a forklift operator. He stopped working as a mechanic's helper on December 30, 2016 and has not been gainfully employed since that time. As for the pertinent symptoms of the Veteran's service-connected disabilities other than sinusitis, he experienced hearing loss; tinnitus; right knee pain, tenderness, swelling, stiffness, popping, locking, instability, heat, weakness, and limited motion; left middle finger and right thumb pain, tenderness, and swelling; impaired sleep; and daytime fatigue. He regularly used a brace, cane, or crutch due to his knee disability. The Veteran's hearing loss, tinnitus, right knee disability, bilateral hand disability, and sleep apnea impacted his ability to work in that he was unable to hear conversations, asked people to repeat themselves, and experienced frustration and impaired concentration due to his hearing loss and tinnitus. As a result of his right knee disability, he was unable to stand and walk for prolonged periods (limited to between 5 and 30 minutes at a time before having to rest) and experienced difficulty using stairs (limited to 1 to 2 flights occasionally), sitting (limited to 10 minutes at a time), walking inclines, bending, and lifting/carrying (limited to no more than 20 pounds). He was unable to perform any activities that required kneeling or squatting and was only able to perform light and mostly non-physical activities. Due to his sleep apnea, he was tired during the day, frequently fell asleep during the day, and had to avoid operating heavy equipment or driving long distances when drowsy. The above evidence reflects that the Veteran has a high school education and that his employment experience consisted almost entirely of physical employment in security and as a mechanic's helper, a mechanic, a warehouse worker, a mobile equipment worker, and a forklift operator. He stopped working as a mechanic's helper on December 30, 2016 and has not been gainfully employed since that time. Overall, he experiences symptoms associated with his service-connected disabilities that result in functional impairments that would significantly interfere with his ability to secure and follow any substantially gainful employment consistent with his education and occupational experience. For instance, his medical records and lay statements reflect symptoms and impairments associated with his service-connected sleep apnea, right knee disability, and bilateral hand disability (including, but not limited to, significant daytime fatigue, left middle finger and right thumb pain, right knee pain and limited motion, and a limited ability to stand, sit, walk, bend, lift, and carry) that would prevent him from performing any type of substantially gainful employment (physical or non-physical) consistent with his education and occupational experience. While there is a medical opinion of record that the Veteran is not totally unemployable due to his service-connected disabilities, medical examiners are only responsible for providing a full description of the effects of disability upon a veteran's ordinary activity. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In sum, the Board finds that the above discussion of the severity of the symptoms of the Veteran's service-connected disabilities and his educational and occupational experience, reflects that he is unable to secure and follow substantially gainful employment due solely to his service-connected disabilities. He has reported that he was gainfully employed until December 30, 2016. Also, as explained above, the issue of entitlement to a TDIU is moot during the period from August 8, 2016 through September 30, 2017. Therefore, the earliest date that it is factually ascertainable that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities (other than during the period from August 8, 2016 through September 30, 2017) is October 1, 2017. Accordingly, entitlement to a TDIU, from October 1, 2017, but no earlier, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.