Citation Nr: 21076365 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-30 037 DATE: December 23, 2021 ORDER Entitlement to an increased initial rating of 30 percent, but not higher, for service-connected chronic sinusitis is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, throughout the appeal periods, the Veteran's chronic sinusitis symptoms more closely approximate that of more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. He has not had 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. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 30 percent, but no higher, for chronic sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from June 1990 to June 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the Veteran's claim for additional development. In October 2020, the Board issued a decision granting the Veteran's claim for a compensable rating prior to July 31, 2015 and denying a rating in excess of 10 percent for the entire period on appeal. The Veteran appealed the Board's denial of an increased evaluation throughout the entire period on appeal to the United States Court of Appeals for Veterans Claims (CAVC), resulting in the June 2021 Joint Motion for Partial Remand (JMPR). In an August 2021 Order, CAVC granted the JMPR, thereby partially vacating the October 2020 Board decision, and remanding the issues for readjudication consistent with the JMPR. The Board notes that CAVC bifurcated the Veteran's claims into two issues, to include an increased rating in excess of 10 percent prior to July 31, 2015 and the period thereafter. However, as these issues encompass the entire period on appeal, the Board has combined these issues, and recharacterized the claim as entitlement to an increased rating in excess of 10 percent for service-connected chronic sinusitis. Increased Rating Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Increased Rating for Chronic Sinusitis. The Veteran contends that his chronic sinusitis warrants an increased evaluation in excess of 10 percent, as his symptoms reflect worsening. The Veteran's chronic sinusitis is currently evaluated as 10 percent throughout the entire period on appeal under the appropriate DC 6512, which evaluates frontal chronic sinusitis. Under DC 6512, a 10 percent rating 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 rating 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 rating 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. A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. Medical treatment records throughout the appeal period reflect complaints of sinus congestion and postnasal drip once a month with continual migraine headaches, and the Veteran taking medication/antibiotics for treatment. See VA and private treatment records. Lay statements submitted by the Veteran note that he experiences chronic sinusitis, as described as episodes that lasts 5 to 6 months at a time where he cannot breath through his nose at least once per month with associated pain, headaches that lasts 2 to 3 hours, runny nose with crusting, postnasal drip, loss of sense of smell, constant sniffling/sneezing, watery/itchy eyes, tenderness around nose, mucus discharge, and difficulty sleeping. He treats these symptoms with over-the-counter medications and/or antibiotics monthly due to frequency and severity, with him asserting that it is rare in the last 6 years that his symptoms have not occurred monthly or near monthly. See NOD, March 2013; see also Form 9, April 2013; see also, Correspondences, August 2015 and November 2021. In a July 2015 private sinusitis examination, the examiner noted the Veteran had frontal and maxillary sinuses, with symptoms of 3 documented episodes of sinusitis, migraine headaches, pain and tenderness of affected sinus, and purulent discharge or crusting, with intermittent episodes of sinus infections. The Veteran had 7 or more non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months, however, only 3 were documented at a hospital. There were no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment noted, nor any reported sinus surgery (radical sinus surgery or chronic osteomyelitis) for the Veteran. See Private exam, July 2015. In a November 2019 VA sinusitis examination, the examiner noted the Veteran had frontal and maxillary sinuses, with symptoms of episodes of sinusitis, pain and tenderness of affected sinus, and purulent discharge. The Veteran had 5 non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. There were no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment noted, nor any reported sinus surgery (radical sinus surgery or chronic osteomyelitis) for the Veteran. See C&P Exam, November 2019. In a December 2019 VA sinusitis examination, the examiner noted the Veteran's reports of having at least monthly sinus infections requiring antibiotic medication, with current symptoms of near-daily runny, stuffy, and itchy nose with sneezing and watery and itchy eyes, as well as, monthly sinus pressure with headaches. Upon examination, the examiner noted the Veteran had frontal, maxillary, ethmoid, and sphenoid sinuses, with symptoms of monthly episodes of sinusitis, headaches, pain and tenderness of affected sinus, and purulent discharge. There were no non-incapacitating or incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months noted, nor any reported sinus surgery (radical sinus surgery or chronic osteomyelitis) for the Veteran. See C&P Exam, November 2019. Based on the above, the Board finds that an increased rating of 30 percent, but not higher, is warranted for the Veteran's chronic sinusitis during the entire period on appeal. Affording the Veteran the benefit of the doubt, there is sufficient medical evidence to indicate that he has met the criteria for the higher 30 percent initial rating, as the severity of the chronic sinusitis symptoms as likely as not have approximated that of more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, DC 6512. The Board notes that the relevant medical evidence of record, to include the private examination, VA examinations, and treatment records, reflect that the Veteran's chronic sinusitis as likely as not had manifested more closely with symptoms of such a severity, frequency, or duration as to warrant a higher 30 percent rating. The private medical examination and medical treatment records reflects the Veteran experiences monthly non-incapacitating episodes per year of sinusitis with symptoms of headaches, pain, and purulent discharge or crusting. While the Board acknowledges the VA examinations of record indicated the Veteran's chronic sinusitis did not result in more than 6 non-incapacitating episodes per year, the December 2019 VA examiner did notate the Veteran's reports of experiencing monthly episodes of sinusitis, and the Veteran has competent and credible lay statements that he had monthly episodes that last for a prolonged period with symptoms of headaches, pain, and purulent discharge. The Board finds that the evidence is essentially in favor of the higher 30 percent rating, or at the very least, in relative equipoise, and thus, resolving all reasonable doubt in favor of the Veteran, the assignment of a 30 percent rating in this case is warranted; and to this extent, the claim is granted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). However, a rating in excess of 30 percent is not warranted, as the evidence of record does not reflect, nor otherwise suggest, that the Veteran's chronic sinusitis resulted in radical surgery with chronic osteomyelitis, nor had a near-constant frequency after repeated surgeries, which is required for the maximum 50 percent rating. The Veteran has not asserted that he has had radical surgery on his sinuses, nor is there any indication in any of the records that he has. Therefore, the Board finds that the preponderance of the evidence does not support the assignment of ratings higher than a 30 percent rating in this case. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that a higher rating than 30 percent for her tension headaches is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher ratings. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.