Citation Nr: 21075505 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-26 352 DATE: December 20, 2021 ORDER Entitlement to an initial rating in excess of zero percent from April 1, 2013, and 30 percent from April 12, 2021, for sinusitis is denied. Entitlement to an initial rating of 10 percent from April 1, 2013 until April 12, 2021 for hypertension is granted. Entitlement to a rating in excess of 10 percent from April 12, 2021 for hypertension is denied. FINDINGS OF FACT 1. From April 1, 2013, the evidence does not show at least 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. 2. From April 12, 2021, the evidence does not show that the Veteran 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. 3. Throughout the appeal period, the Veteran's hypertension has required continuous medication for control, but his diastolic pressure is not predominantly 110 or more, nor is his systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of zero percent from April 1, 2013, and 30 percent from April 12, 2021, for sinusitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6513. 2. The criteria for an initial rating of 10 percent from April 1, 2013 until April 12, 2021 for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101. 3. The criteria for a rating in excess of 10 percent from April 12, 2021 for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1993 to March 2013 with service in Southwest Asia. This matter comes before the Board of Veterans' Appeals on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appealed issue was previously before the Board in October 2018 when it was determined that a remand was necessary to determine the severity of the Veteran's service-connected sinusitis and hypertension. The claim has now been returned to the Board for further appellate consideration. As an initial matter, the Board notes that, while pending on appeal, the Veteran was assigned a 30 percent rating from April 12, 2021, for sinusitis and a 10 percent rating from April 12, 2021, for hypertension. The claims remain in controversy because the highest ratings available were not awarded. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded). Furthermore, the Board acknowledges the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when raised by the Veteran or the record. In this case, while the Veteran's combined disability rating is 80 percent effective April 2013 and 90 percent from April 2021, the record does not reflect that the Veteran is unemployable due to service connected fibromyalgia, posttraumatic stress disorder, sinusitis, degenerative arthritis of the cervical spine, lumbosacral strain, left knee strain, right knee strain, tinnitus, gastroesophageal reflux disease, hypertension, bilateral hearing loss, inguinal hernia, erectile dysfunction. In fact, the Veteran has not been noted as unemployed or unemployable due to his service-connected disabilities since separating from service nor has the Veteran asserted such unemployability. Accordingly, a TDIU claim has not been raised, and no action under Rice is necessary. Increased Rating The Veteran is seeking an increased rating for sinusitis, that he contends has worsened since his initial rating. Specifically, the Veteran contends that he has had three to four sinusitis episodes per year, headache pain, and discharge. See February 2014 VA Form 21-526EZ Fully Developed Claim; August 2015 Notice of Disagreement; June 2016 VA Form 9. Sinusitis Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2020); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Diagnostic Code 6513 is rated under the General Rating Formula for Sinusitis. Under the General Rating Formula, a 10 percent evaluation is assigned 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 assigned 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 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. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514. An incapacitating episode of sinusitis means one that required bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514, Note. Relevant Factual Background In April 2015, the Veteran presented to a VA Gulf War Medical examination, where he was diagnosed with chronic sinusitis. See April 2015 VA Gulf War Examination. The examiner noted the Veteran's symptoms as episodic consisting of headaches, pain of sinus, and tenderness of sinus. The examiner further noted the Veteran has not had incapacitating episodes of sinusitis nor has the Veteran had sinus surgery. Id. In April 2021, the Veteran presented to a VA sinusitis/rhinitis examination, where he was diagnosed with chronic rhinosinusitis. See April 2021 VA Sinusitis/Rhinitis Examination. The examiner noted the Veteran's chronic symptoms as headaches, pain of affected sinus, tenderness of sinus, and crusting. Id. The examiner further noted the Veteran experienced more than seven non-incapacitating episodes of sinus headaches in the preceding 12 months. Lastly, the examiner noted the Veteran has not undergone any surgery for his sinus condition. Id. Analysis By way of history the Veteran's sinusitis has been evaluated as zero percent disabling prior to April 12, 2021, and as 30 percent disabling as of April 12, 2021, under Diagnostic Code 6513 for chronic pansinusitis. Sinusitis prior to April 12, 2021. Prior to April 2021, the Veteran's service connected sinusitis was rated at zero percent pursuant to diagnostic code 6513. Under that code, a 10 percent evaluation is assigned 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. The medical record does not contain evidence that would show at a minimum the Veteran's symptoms were productive of a 10 percent rating prior to April 2021. Specifically, the April 2015 VA examiner noted the Veteran's symptoms as episodic consisting of headaches, pain of sinus, and tenderness of sinus. The examiner further noted the Veteran has not had incapacitating episodes of sinusitis, nor has the Veteran had sinus surgery. See April 2015 VA Gulf War Examination. As such the Board finds a rating in excess of zero percent is not warranted. Sinusitis from April 12, 2021. From April 2021, the Veteran's service-connected sinusitis was rated at 30 percent pursuant to diagnostic code 6513. Under that code a 30 percent evaluation is assigned 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. The competent medical evidence of record supports a finding that the Veteran's symptoms are productive of a 30 percent rating. Specifically, the April 2021 VA examiner noted the Veteran's chronic symptoms as headaches, pain of affected sinus, tenderness of sinus, and crusting. Id. The examiner further noted the Veteran experienced more than seven non-incapacitating episodes of sinus headaches in the preceding 12 months. See April 2021 VA Sinusitis/Rhinitis Examination. As such the Board finds the Veteran's symptoms from April 2021 are more closely productive of a 30 percent rating. In fact, at no time during the appeal period did the Veteran's service-connected sinusitis symptoms more approximate a rating of 50 percent. 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. Specifically, both the April 2015 and April 2021 VA examiners noted that the Veteran had not undergone any surgery for his sinus condition. See April 2021 VA Sinusitis/Rhinitis Examination; April 2021 VA Sinusitis/Rhinitis Examination. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his sinusitis disability. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., experiencing chronic pain in his sinuses. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.") As a preponderance of the evidence is against the award of an increased rating for both stages of the appeal, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Hypertension The Veteran is seeking an increased rating for hypertension that he contends has worsened since his initial rating. Specifically, the Veteran contends that he was diagnosed with hypertension in service and requires daily medication to control his blood pressure. See February 2014 VA Form 21-526EZ Fully Developed Claim; August 2015 Notice of Disagreement; June 2016 VA Form 9. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2020); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pursuant to Diagnostic Code 7101, a 10 percent rating is assigned for hypertensive vascular disease (hypertension and isolated systolic hypertension) when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more; or, as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure that is predominantly 110 or more, or; systolic pressure that is predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure that is predominantly 120 or more. A 60 percent rating is assigned where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. There are three notes to 38 C.F.R. § 4.104, Diagnostic Code 7101. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Note (2) requires the evaluation of hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note (3) states that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. The Board emphasizes that more than one blood pressure reading is not required for evaluation purposes for rating hypertension under VA regulations. See Gill v. Shinseki, 26 Vet. App. 386, 391 (2013) (holding that the need for a specific number of blood pressure readings over multiple days is not required for determining disability evaluation, as the need for multiple blood pressure readings pertains only to the confirmation of the existence of hypertension). The Board acknowledges the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, the Court subsequently determined that for hypertension, the plain language of Diagnostic Code 7101 contemplates the effects of medication and, thus, the Jones case is not applicable to cases involving hypertension. McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). That is, the rating criteria for hypertension already takes into account the ameliorative effects of medication. Id. Relevant Factual Background In October 2014, the Veteran presented to a VA hypertension examination where he was diagnosed with hypertension. See October 2014 VA Hypertension Examination. The examiner noted that the Veteran's hypertension required the use of continuous medication. He was noted to have been taking antihypertensive medication for the past three years. The examiner further noted the Veteran did not have a history of a diastolic blood pressure predominantly elevated to 100 or more. The examiner took the Veteran's blood pressure three times during the examination noting 132/90, 142/85, and 118/78 respectively. Id. In April 2021, the Veteran attended a VA hypertension examination where he was diagnosed with hypertension. See April 2021 VA Hypertension Examination. The examiner noted the Veteran's hypertension required the use of continuous medication. The examiner further noted the Veteran did not have a history of a diastolic blood pressure predominantly elevated to 100 or more. The examiner took the Veteran's blood pressure three times during the examination noting 162/92, 160/90, and 160/96 respectively. Id. Analysis By way of history the Veteran's hypertension has been evaluated as zero percent disabling prior to April 12, 2021, and as 10 percent disabling as of April 12, 2021, under Diagnostic Code 7101 for chronic pansinusitis. Hypertension prior to April 12, 2021. Prior to April 2021, the Veteran's service-connected hypertension was rated at zero percent pursuant to Diagnostic Code 7101. Under that code a 10 percent evaluation is assigned when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more; or, as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Significantly, the October 2014 VA examiner noted that the Veteran's hypertension required the use of continuous medication. The examiner further noted that the Veteran did not have a history of a diastolic blood pressure predominantly elevated to 100 or more. The examiner took the Veteran's blood pressure three times during the examination noting 132/90, 142/85, and 118/78 respectively. See October 2014 VA Hypertension Examination. That said, the fact that the Veteran had taken medication for hypertension for three years calls into question whether diastolic blood pressure predominantly elevated to 100 or more would have been present during that extended time period, had more frequent blood pressure monitoring been conducted than has been shown in this case. It would be speculation for the Board to reach a conclusion on this question, given the Veteran's lengthy history of this disability and given that, even with medication, he still presented with multiple diastolic readings of 90 or higher during the appeal period. As such the Board will resolve all doubt in favor of the Veteran and assign a 10 percent evaluation, but not higher in view of the blood pressure readings shown, for the entire period from April 1, 2013 until April 12, 2021. To this extent only, the appeal is granted. Hypertension from April 12, 2021. From April 2021, the Veteran's service-connected hypertension has been rated at 10 percent pursuant to Diagnostic Code 7101. Under that code, a 10 percent evaluation is assigned when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more; or, as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The competent medical evidence of record supports a finding that the Veteran's symptoms are productive of a 10 percent rating from April 2021. Specifically, the April 2021 VA examiner noted the Veteran's hypertension required the use of continuous medication. The examiner further noted the Veteran did not have a history of a diastolic blood pressure predominantly elevated to 100 or more. The examiner took the Veteran's blood pressure three times during the examination noting 162/92, 160/90, and 160/96 respectively. See April 2021 VA Hypertension Examination. As such the Board finds the Veteran's symptoms from April 2021 are more closely productive of a 10 percent rating. In fact, at no time during the appeal period did the Veteran's service-connected hypertension symptoms more approximate a rating of 20 percent. A 20 percent rating is assigned for diastolic pressure that is predominantly 110 or more, or; systolic pressure that is predominantly 200 or more. Specifically, both the October 2014 and April 2021 VA examiners noted the Veteran's blood pressure as 132/90, 142/85, 118/78 and 162/92, 160/90, 160/96 respectively. See October 2014 VA Hypertension Examination; April 2021 VA Hypertension Examination. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his hypertension disability. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., experiencing chest pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). As a preponderance of the evidence is against the award of an increased rating for this latter stage of this appeal, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.