Citation Nr: 21076417 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-42 315 DATE: December 23, 2021 ORDER Entitlement to a rating in excess of 10 percent for sinusitis, postoperative, is denied. FINDING OF FACT The Veteran's sinusitis has not been manifested by three incapacitating episodes per year, or more than six non-incapacitating episodes per year characterized by headaches, pain and purulent discharge, or crusting. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for sinusitis have not 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 from May 1988 to November 1993. In his July 2017 VA Form 9, the Veteran requested a Board hearing. The requested hearing was scheduled for August 17, 2021. However, due to COVID, the hearing was rescheduled for October 19, 2021. The Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran was a "No Show" for his hearing. Also, he has not requested that his hearing be rescheduled. Under these circumstances, the Board has determined that the Veteran's request for a Board hearing has been withdrawn. 38 C.F.R. § 20.704(e). Entitlement to a rating in excess of 10 percent for sinusitis, postoperative 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations 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. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of an initial disability rating, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). The Veteran sinusitis is rated under DC 6512 for chronic frontal sinusitis. All forms of sinusitis are evaluated under the General Formula for Sinusitis (DC's 6510 through 6514). Under the General Formula, a 30 percent evaluation is assigned for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by 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 for sinusitis following radical surgery with chronic osteomyelitis, or manifested by 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. An incapacitating episode of sinusitis is one requiring bed rest and treatment by a physician. Id. Analysis The Veteran contends that his disability is more severe than the rating depicts. From 2014, the Veteran's VA treatment records document complaints and treatment, to include surgeries, for sinusitis. In June 2014, the Veteran submitted statements from his B.D. and S.V. B.D. stated that the Veteran complained of headaches, pressure in the area of his sinus cavity, severe pain, and lack of sleep. At times, the Veteran reported that he could not take the prescribed medication as he felt it impaired his ability to work, drive, and concentrate. The Veteran underwent surgery; however, the surgery was not successful, and he continued to experience pain. S.V. noted that the Veteran experienced facial swelling, so he went to the ER. A CT scan was administered, and it was determined that the Veteran needed sinus surgery. At his two weeks post-surgery follow up, the doctor stated that the Veteran was not healing correctly. He was given more antibiotics and instructed to return two weeks later. However, because the pain was getting worse within that week, he returned within the week. It was determined that the sinus surgery caused nerve damage, and he was diagnosed with Trigeminal neuralgia. In November 2016, the Veteran was afforded a VA examination to determine the severity of his sinusitis. The examiner noted that the Veteran has had multiple sinus surgeries which resulted in damage to the 5th cranial nerve. The examiner stated that at the time of the exam, the Veteran had been treated by a myriad of specialists. The examiner confirmed the Veteran's chronic sinusitis and trigeminal nerve damage after surgery diagnoses. The examiner noted that the Veteran had a nose, throat, larynx, or pharynx condition, to include sinusitis and rhinitis. The Veteran's type of sinusitis did not include maxillary, frontal, ethmoid, pansinusitis, or sphenoid sinusitis. The examiner noted that the Veteran had findings, signs, or symptoms attributed to his chronic sinusitis, to include headaches, pain of affected sinus, tenderness of the affected sinus, and crusting. He had three non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the 12 months prior to the exam. The Veteran had two incapacitating episodes requiring prolonged (4 to 6 weeks) of antibiotics in the 12 months leading up to the exam. The Veteran's disability impacted his ability to work. He reported losing zero to one week of work in the 12 months prior to the exam. He had multiple surgeries, to include endoscopic sinus surgery, which left him symptomatic. One surgery damaged the trigeminal nerve and left him with multiple symptoms. In March 2019, the Veteran was afforded another VA examination to determine the severity of his sinusitis. The Veteran stated that in 1990, he developed persistent nasal congestion. He was evaluated and initially treated with meds. In 1991, he underwent his first sinus surgery with bone grafting to his frontal sinus. At the time of the VA exam, he experienced daily congestion, rhinorrhea, and post-nasal drip. He had residual right trigeminal neuralgia s/p the2014 surgery. The examiner diagnosed the Veteran with sinusitis, postoperative. The examiner noted additional diagnoses that pertained to the sinuses, to include allergic rhinitis and nasal polyps, postoperative. The examiner noted that the Veteran had nose, throat, larynx, or pharynx conditions to include sinusitis; rhinitis; and other pertinent physical findings or scars due to his nose, throat, larynx or pharynx conditions. The types of sinusitis that affected the Veteran included maxillary and ethmoid sinusitis. He had chronic sinusitis detected only by imaging studies, episodes of sinusitis, and tenderness of affected sinus that were attributable to his chronic sinusitis. His sinus tenderness occurred every three to four months and required antibiotics. He had had four non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the 12 months prior to the exam. The Veteran had no incapacitating episodes. In 1991, 1994, 1995, 1996, and 2014, he had endoscopic and radical sinus surgeries. The sinuses operating on included ESS, maxillary antrostomies, and turbinectomies. There were no other pertinent physical findings, complications, conditions, signs, or symptoms associated with the Veteran's condition. The Veteran had a scar related to his condition. The scar was painful or unstable, had a total area equal to or greater than 39 square cm (6 square inches); or located on the head, face, or neck. However, he did not have loss of part of his nose or other scars of the nose exposing both nasal passages, loss of part of the nose or other scar of the nose causing loss of part of one ala, or loss of part of the nose or other scar of the nose causing any other disfigurement. The Veteran's disability did not have an impact on his ability to work. Computer tomography revealed extensive nasal and sinus surgery with residual mild polypoidal mucosal thickening in the paranasal (maxillary, ethmoid, sphenoid and frontal) sinuses. Based on review of the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's sinusitis is not warranted. Under DC 6510 through 6514, a 30 percent evaluation is assigned for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. In this case, at worst, the Veteran had four non-incapacitating and two incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the 12 months prior to the exam. As the Veteran's disability has not manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, a rating in excess of 10 percent is not warranted. The Board has considered whether separate and/or higher disability ratings are warranted under any other potentially applicable DCs pertaining to diseases of the ear, nose, and throat. The record does not reflect, and the Veteran has not asserted that he had at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation or complete obstruction on one side due to traumatic septal deviation related to his condition. Also, he did not have loss of part of his nose. Therefore, a separate or higher rating is not warranted under DCs 6502 or 6504. Additionally, the Veteran did not have vocal cord paralysis or any other pharyngeal or laryngeal conditions, and he did not have granulomatous rhinitis or rhinoscleroma. Therefore, a higher and/or separate rating is not warranted under DCs 6515-6521 or 6523-6524. The Board notes that service connection has been separately established for allergic rhinitis under DC 6522, scars under DC 7800, and trigeminal neuralgia under DC 8205. The Board has considered the Veteran and his representative's statements regarding the severity of the Veteran's sinusitis. However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiners' opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiners' findings and other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For the foregoing reasons, the preponderance of the evidence is against a rating in excess of 10 percent for chronic sinusitis. Therefore, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 55. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.