Citation Nr: 21075891 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-54 734 DATE: December 21, 2021 ORDER Beginning April 17, 2015, entitlement to a disability evaluation of 30 percent, but no higher, for sinusitis is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's sinusitis has been manifested by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSION OF LAW Beginning April 17, 2015, the criteria for entitlement to a disability evaluation of 30 percent, but no higher, for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1969 to October 1974 and in the United States Army from July 1997 to October 1997, March 2003 to July 2003, and January 2004 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In August 2021, the Veteran testified before the undersigned at a hearing. A transcript of his testimony has been associated with the claims file. Increased Rating The Veteran asserts that he is entitled to a compensable disability rating for his service-connected sinusitis. More specifically, he argues that for the past few years he has frequently suffered from non-incapacitating episodes of sinusitis with symptoms such as congestion, sinus pain, sore throats, headaches, post-nasal drip, and crusting. Disability ratings 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to service connection 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's sinusitis is currently evaluated at 0 percent disabling under diagnostic code 6512, for chronic frontal sinusitis. Disabilities that correspond to diagnostic codes 6510 through 6514 are rated under the General Rating Formula for Sinusitis. Pursuant to this formula, a noncompensable rating is warranted for sinusitis that is detected by x-ray only. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514. A 10 percent rating is available 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. Id. A 30 percent rating is warranted for three or more incapacitating episodes per year 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 of crusting. Id. Last, a 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, with purulent discharge or crusting after repeated surgeries. Id. A note accompanying the General Rating Formula for Sinusitis clarifies that an incapacitating episode of sinusitis is one that requires bed rest and treatment by a physician. Here, the record indicates the Veteran notified VA of his Intent to File a claim for an increased rating in a document received on April 17, 2015. As such, the Board will focus on the evidence of record from up to one year prior to the receipt of his Intent to File. This evidence includes hearing testimony, private treatment records, VA treatment records, VA examination reports and medical opinions, and correspondence from the Veteran documenting the frequency and severity of his flare-ups of sinusitis. In the correspondence from the Veteran, for instance, the Veteran explained that he had several flare-ups of symptoms associated with sinusitis each year, which typically began as a feeling of discomfort between his eyes before becoming a headache with nasal congestion and nasal discharge. He also stated that he sometimes develops a sore throat and a cough, and that his symptoms often last for a few days or, occasionally, for several weeks. The Board will set forth the most relevant evidence below. Medical records March 2014, one month prior to the beginning of the period on appeal (i.e., April 2014), indicate that the Veteran was diagnosed with a sinus infection, which was a flare-up of his chronic sinusitis. He had been experiencing symptoms such as sinus pain and congestion for approximately three weeks and was prescribed antibiotics for 5 days. Subsequently, he was diagnosed with another sinus infection in October 2014 and placed on antibiotics for two weeks. At that time, he reported persistent sinus symptoms for approximately two months, which had worsened over the past few weeks. In the correspondence documenting the frequency of his episodes of sinusitis, the Veteran reported that he experienced a four-day episode of sinusitis starting on April 8, 2015, with symptoms including a headache and congestion. On April 14, 2015, he reported he experienced another episode involving a sore throat, cough, congestion, and sinus drainage that lasted for approximately 30 days. Private medical treatment records from April 26, 2015, confirm that he was diagnosed with a sinus infection following symptoms such as throat irritation, coughing, and mucus production for approximately two weeks. He was prescribed five days of antibiotics. The Veteran then reportedly experienced several short, frequent flare-ups of his sinusitis symptoms. He reported another episode of symptoms, such as a sinus headache, congestion, and a sore throat, that lasted approximately 5 days in June 2015. Additionally, he reported a five-day episode involving a headache and congestion in early July 2015 and a seven-day episode involving a headache and congestion in late July 2015. Correspondence reflects that he experienced a four-day episode of sinus headaches and congestion in mid-August 2015 and a seven-day episode of headaches and congestion at the end of that month. In mid-September 2015, he reportedly experienced a three-day episode of headaches and congestion. One week later, he had a four-day episode of sinus headaches, congestion, and coughing. In early October 2015, he reported a four-day episode of sinus headaches and congestion. At the end of October 2015, he reported a longer episode of sinus headaches, congestion, a cough, and a sore throat. Although his symptoms appeared to clear up in early November, he reported another long episode of sinusitis symptoms began on November 4, 2015. He stated that this episode lasted for approximately 22 days. He reported symptoms including a sore throat, cough, headaches, difficulty thinking, discharge from his sinuses, and congestion. In an October 2015 private medical record, he was diagnosed with acute maxillary sinusitis and prescribed antibiotics for five days based on a sore throat, sinus pressure, a runny nose, thicker mucus, and fatigue. The Veteran reported that he had a six-day flare-up of sinusitis in December 2015 and experienced symptoms including a sore throat, headache, and congestion. He also reported having a 15-day flare-up of sinusitis in January 2016. A January 2016 private medical record reflects that he complained of chronic sinusitis. His doctor noted that he might have significant polyps and might require surgical intervention. The doctor also noted that he complained of approximately seven or eight flare-ups of symptoms per year. He also reported a flare-up that lasted nearly weeks beginning in March 2016, with symptoms such as pain, congested breathing, coughing with mucous, a headache, and a sore throat. He also reported a flare-up in April 2016, which lasted for approximately 11 days, resulting in symptoms of sinus pain, congested breathing, and fatigue. This flare-up coincided with an April 2016 VA examination on the severity of his sinusitis. At that examination, he reported that he frequently experienced flare-ups of his sinusitis associated with changes in the weather. He described feelings such as pressure and pain around his eyes, fatigue, difficulty breathing through the nose, nasal congestion, post-nasal drip, and mucus. He treated these symptoms mostly through nasal steroids, daily saline rinses, and over-the-counter medication, although he had been prescribed antibiotics in the past. The examiner noted that he reported having a sinus infection on the day of the examination and that he complained of sinus pain, pressure behind the eyes, post-nasal drip, and nasal discharge. The examination report indicates that he had headaches, pain in the ethmoid sinus, purulent discharge, crusting, and a headache. Confusingly, however, the April 2016 VA examiner stated that he had neither incapacitating nor non-incapacitating episodes of chronic sinusitis within the past 12 months. At the end of April 2016, he reportedly experienced another flare-up of sinusitis that lasted for approximately two weeks, with symptoms such as congested breathing, a headache, a cough, and a sore throat. VA treatment records from May 2016 reflect a diagnosis of chronic sinusitis and recommend various medicines for treatment, such as Zyrtec and naproxen. His VA treatment provider also advised him that he should approach his sinusitis as a chronic condition that he would not be able to "cure," especially because of his job. The Board notes that the Veteran worked as a helicopter pilot during wildfire season. To that end, the VA treatment provider noted that flying in helicopters involved rapid changes in atmospheric pressure with large amounts of particulate matter in the air, which could aggravate his sinusitis. The Veteran reported that another flare-up of his sinusitis began in July 2016 and continued for over 30 days, with symptoms such as congestion, pain, coughing, mucus production, and a headache. He reported a shorter four-day flare-up in August 2016, which involved symptoms of a headache and congestion. In May 2016, VA asked the April 2016 VA examiner to clarify their findings on the April 2016 examination report. More specifically, the RO noted that the Veteran's claims file suggested that he experienced non-incapacitating episodes of sinusitis, but that the VA examiner stated that he did not suffer from any episodes of sinusitis in the examination report. The VA examiner responded to this clarification request with an August 2016 opinion, which stated that the Veteran's symptoms that were listed in his log of symptoms represented subjective self-reports of sinusitis symptoms with no objective clinical evidence that the symptomatology was solely due to, caused by, clinically linked to, or medically diagnosed as an incapacitating or non-incapacitating episode of sinusitis. Instead, the VA examiner opined, his symptomatology was most likely related to his current occupational exposures while working as a helicopter pilot engaged in wildland fire management, which was known to cause symptoms like sinusitis and was a health risk for people without sinusitis as well. The Veteran reported another flare-up of sinusitis with headaches and congestion began in September 2016 and lasted for four days. He also reported two brief flare-ups in October 2016, which caused pain, congestion, problems breathing, and mucus production, among other symptoms. In November 2016, he reportedly had another brief three-day flare-up with sinus pain, congestion, and trouble breathing. Last, he reported that he had a flare-up of sinusitis that began in early December and lasted for over 25 days, with symptoms of sinus pain, congestion, trouble breathing, a cough, a runny nose, mucus, and a sore throat. A January 2017 private medical record confirmed that he had chronic sinusitis and was using Flonase and a saline rinse every day. February 2017 private treatment records reflect complaints of sinus head pain with a long history of chronic sinusitis and severe infections requiring antibiotic therapy. Although he had never had sinus surgery, he was currently experiencing a flare-up with sinus pressure, headaches, and drainage. His doctor prescribed antibiotics for two weeks. In a March 2017 private treatment record, he reported that he had developed frequent nosebleeds due to using Flonase once daily and that he stopped using it as a result. His doctor noted that his sinus disease was "quite significant" and recommended that he restart using Flonase every other day. In response to the August 2016 opinion from the VA examiner, the Veteran submitted a letter to VA in October 2017. In that letter, he stated that he had submitted a log of his helicopter flights during wildfire season. When he compared the dates that he flew a helicopter during wildfire season with the dates he had complained of flare-ups of sinusitis in his log of sinusitis symptoms in 2015 and 2016, the flare-ups only overlapped with a flight one time in August 2015 and once in September 2016. The subtext of the letter is that his reported sinus symptoms are largely unrelated to his occupational exposures to atmospheric changes, wildfires, or particulates in the air. He also clarified that he did not fly "in" smoke because it would be impossible to see where to drop water from above if he did that, and that he did not fly at high altitudes that would result in significant changes in atmospheric pressure. The Veteran is competent to offer these statements as a seasoned helicopter pilot, and the Board has no reason to doubt their credibility. In a February 2018 private medical record, his doctor diagnosed a possible sinus infection based on 10 days of pressure behind his eyes, congestion, and headaches, without improvement in facial pain, pressure, post-nasal drip, or fatigue. He was put on antibiotics for two weeks. In December 2018, the Veteran was diagnosed with another sinus infection after reporting three weeks of sore throats, facial pressure, drainage, and a mild cough. He was prescribed antibiotics for 10 days. In May 2020 private treatment records, he complained of pain behind his eyes, throat problems, and drainage for the past five weeks. He was diagnosed with sinusitis and prescribed antibiotics for five weeks. Last, the Veteran testified at his August 2021 hearing that he experienced five or six non-incapacitating episodes of sinusitis, which he called "flare-ups," per year, and that some flare-ups required prescription antibiotics. He reiterated that during flare-ups of sinusitis he first experienced congestion and difficulty breathing, quickly followed by sinus headaches, as well as mucus discharge and occasional sore throats and coughing. Here, the Board finds that the most competent, credible in the record indicates that the Veteran's symptoms of chronic sinusitis cause more than six non-incapacitating episodes per year of sinusitis that is characterized by headaches, pain, and purulent discharge of crusting throughout the entire period on appeal. To that end, competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis or reporting on symptoms that are within the realm of personal experience. See 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Here, the Veteran is competent to describe his sinusitis symptoms, such as a headache, sinus pain, and purulent discharge or crusting, and the Board finds his testimony and written correspondence describing the frequency of his symptoms to be highly probative in this regard. Indeed, these symptoms are supported by other evidence in the record, such as private treatment and VA treatment records documenting treatment for sinusitis. The Board acknowledges that the April 2016 VA examiner did not find that the Veteran experienced either incapacitating or non-incapacitating episodes of sinusitis. As justification, the VA examiner explained in her August 2016 addendum that his reports of symptoms were purely subjective and not supported by objective medical evidence, and that his symptoms were more likely caused by occupational exposures rather than sinusitis. The Board ascribes little, if any, probative weight to this addendum. First, the VA examiner assumed that the Veteran's subjective reports of sinusitis were not credible without explaining why. Second, the VA examiner did not address contemporaneous private medical records or VA treatment records that were consistent with his reported symptoms. Third, the VA examiner assumed, without providing an adequate rationale, that his symptoms were caused by wildfires and atmospheric changes and failed to consider whether wildfires and atmospheric changes had merely aggravated his existing sinusitis symptoms. An opinion that is conclusory or that does not provide a sufficiently detailed rationale is inadequate. Stefl v. Nicholson, 23 Vet. App. 320 (2007). Moreover, although the VA examiner noted that symptoms caused by wildfires closely resembled symptoms caused by sinusitis, she did not explain whether it was possible to distinguish the symptoms from one another or how. Where it is not possible to distinguish between the effects of a non-service-connected condition and a service-connected disability, the benefit of the doubt goes to the veteran so that all symptoms from each condition are considered with respect to disability evaluations. Mittleider v. West, 11 Vet. App. 181 (1998). The Board will thus afford the Veteran the benefit of the doubt and assume that his symptoms are due to his chronic, service-connected sinusitis. Ultimately, the VA examiner's opinion is not probative with respect to the nature or frequency of the Veteran's symptomatology. Instead, the Veteran's own testimony and lay statements regarding their frequency, as well as his contemporaneous VA treatment records and private medical records, are the more probative evidence of record. This evidence indicates that he has more than six non-incapacitating episodes of sinusitis per year that are characterized by symptoms such as headaches, pain, and purulent discharge, consistent with a 30 percent rating throughout the period on appeal. The Board has also considered whether a 50 percent rating for chronic sinusitis symptoms is warranted. Indeed, the Board acknowledges the near-constant nature of his chronic sinusitis symptoms. Additionally, the record suggests that he might eventually need surgery to treat his sinusitis. However, the record does not indicate, and the Veteran does not contend, that he has had repeated surgeries or radical surgery on his sinuses. As such, a 50 percent rating under the General Rating Formula is not for application. A 30 percent rating, but no higher, is hereby granted from April 17, 2015. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.