Citation Nr: 21069674 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-61 178 DATE: November 19, 2021 ORDER Entitlement to a 10 percent rating but no more, for sinusitis for the period prior to November 18, 2020, is granted. A rating in excess of 10 percent for sinusitis for the period since November 18, 2020, is denied. FINDING OF FACT For the entire period on appeal, the Veteran's sinusitis manifested as no more than one or two incapacitating episodes per year requiring prolonged antibiotic treatment; and one non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no more, for sinusitis prior to November 18, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6512. 2. The criteria for entitlement to a rating in excess of 10 percent for sinusitis from November 18, 2020 and thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6512. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the Army from October 1989 to October 1992. This case is before the Board of Veterans' Appeals(Board) on appeal from November 2016 and December 2020 Regional Office(RO) rating decisions. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a compensable rating for sinusitis prior to November 18, 2020 and in excess of 10 percent from November 18, 2020 and thereafter The Veteran is seeking a compensable rating for his service-connected sinusitis. Specifically, he asserts that the currently assigned rating does not reflect the severity of his disability. In November 2016, VA granted entitlement to service connection for sinusitis and assigned a noncompensable rating effective July 20, 2015. His rating was increased to 10 percent, effective November 18, 2020. The Veteran's sinusitis is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code (DC) 6512, for chronic frontal sinusitis. All of the DCs for sinusitis (DCs 6510-6514) are rated pursuant to the same criteria. Under the General Rating Formula for sinusitis, a 0 percent rating is warranted when it 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 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. A 50 percent rating is warranted 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. As an initial matter, the Board determines that a 10 percent rating is warranted for the entire period on appeal. Specifically, the 10 percent rating was assigned based on a VA examination that was conducted on November 18, 2020. However, the Veteran's symptoms did not worsen on that date. Rather, he has mentioned these symptoms prior to that, and the Board finds that such symptoms were consistent with what was later observed by the VA examiner. As such, a 10 percent rating is warranted for the entire period on appeal. However, a rating in excess of 10 percent is not warranted for any period on appeal. Specifically, at a November 2015 VA examination, the Veteran stated that he has near constant nasal congestion with allergic symptoms accompanied by pain and pressure between the eyes and cheeks and forehead. He did not report the use of chronic medication, but indicated that he tried holistic medications, saltwater sinus rinses and OTC allergy medication without success. On examination, the examiner noted one non-incapacitating episode in the past 12 months. However, no prolonged episodes or prolonged antibiotic therapy was noted. Similarly, the Veteran's VA treatment records do not indicate that a higher rating is warranted based upon antibiotic therapy and/or incapacitating/non-incapacitating episodes of sinusitis. Next, During a VA examination in November 2020, the Veteran reported problems with different seasons and stated that his symptoms have progressed/worsened. He reported his current symptoms as runny nose, hard time breathing, scabs inside of his nostrils, itchiness, mucus production, sinus pressure, and loss of sense of taste and smell. He further reported treating with nasal spray, nasal wash, and saline. The examiner noted one incapacitating episode that required prolonged (four to six weeks) of antibiotics treatment in the past 12 months and one episode of non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. Throughout the appeal period, the Veteran has not been shown to have three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, nor has he been shown to have more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that his sinusitis is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's sinusitis have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report) directly address the criteria under which these disabilities are evaluated. As such, a 10 percent rating is warranted for the entire period on appeal. However, a rating in excess of 10 percent is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica