Citation Nr: A21020307 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200511-86904 DATE: December 21, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for sinusitis is denied. Entitlement to an effective date prior to May 18, 2018 for the grant of service connection for sinusitis is denied. FINDINGS OF FACT 1. The Veteran has not undergone radical surgery followed by chronic osteomyelitis or repeated surgeries followed by near constant sinusitis. 2. The Veteran filed an intent to file a claim which was received by the Agency of Original Jurisdiction (AOJ) on May 18, 2018. 3. The Veteran filed her claim for entitlement to service connection for sinusitis which was received within one year from her May 2018 intent to file a claim. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for sinusitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6512. 2. The criteria for an effective date prior to May 18, 2018, for the grant of service connection for sinusitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran selected the Hearing lane with a Board hearing when she opted into the AMA review system by submitting a VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)) in March 2020. Accordingly, the Board will consider the evidence of record within 90 days after her Board hearing on July 2, 2021. In July 2021, the Veteran presented testimony at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Within 90 days of her July 2021 Board hearing, the Veteran submitted a letter from a private physician who wrote that the Veteran's chronic sinusitis has become more severe "since her last rating." However, under the AMA, remands are limited and do not include those based on worsening of the disability after the rating decision on appeal. 38 C.F.R. § 20.802(a). Rather, the Veteran may file a supplemental claim as explained in the instructions following this decision. 1. Entitlement to an initial rating in excess of 30 percent for sinusitis. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's sinusitis has been evaluated under the provisions of 38 C.F.R.§4.97, Diagnostic Code 6512. Under the General Rating Formula for Sinusitis, a 10 percent rating is warranted for one or two incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating sinusitis episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted when there are three or more incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating sinusitis 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. The maximum evaluation allowable under the general rating formula is 50 percent. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6512. Turning to the evidence, the Board notes that the Veteran was afforded a VA examination in December 2019. The examiner noted a diagnosis of chronic sinusitis. The Veteran reported symptoms including constant sneezing, coughing, laryngitis, nose running, and headaches. The Veteran used Excedrin for headaches and Cetirizine as needed; she was also prescribed antibiotics for sinus infections. The examiner listed the following symptoms attributable to chronic sinusitis: episodes of sinusitis, headaches, tenderness of affected sinus, and brown mucus. It was noted per the Veteran, symptoms occurred six to seven days a week. The Veteran noted seven or more non-incapacitating episodes over the past 12 months and no incapacitating episodes of sinusitis requiring prolonged antibiotics treatment in the past 12 months. Additionally, the Veteran noted she has not had sinus surgery. During her July 2021 Board hearing, the Veteran testified that she experienced symptoms of near-constant runny nose, which was often bloody; headaches; sneezing; and loss of voice. In a July 2021 letter, her private physician noted the Veteran's symptoms of constant runny nose, bloody nose, purulent discharge, and that she was being suggested to undergo a systematic allergy testing before more radical treatment. VA treatment records do not deviate from the above reporting to any significant degree. Collectively, the evidence of record documents a history of chronic sinusitis accompanied by near-constant nasal discharge, sneezing, coughing, headaches, and loss of voice, but no radical or repeated surgeries therefor. After a review of the record, the Board determines that an initial rating in excess of 30 percent is not warranted. To warrant a 50 percent rating, there must be either 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. Here, during the December 2019 VA examination, the Veteran reported that she has not had any sinus surgery, and there is no additional evidence of record which contradicts this finding. Importantly, no other surgeries are noted in the record. Further, the Board acknowledges that the Veteran's report of seven or more non-incapacitating episodes in the prior 12 months with symptoms including headaches, pain of affected sinus, and purulent discharge may constitute 'near constant' sinusitis. Compellingly, however, the Veteran has not undergone any radical sinus surgeries followed by chronic osteomyelitis or shown any repeated surgeries. As such, the Veteran's symptoms approximate the disability picture contemplated at the 30 percent rating. The Board notes the Veteran's representative requested the VA examiner's qualifications following the rating decision on appeal in a May 2021 correspondence. The Board acknowledges under Francway the Veteran has the right to receive the examiner's qualifications. See Francway v. Wilkie, 940 F.3d 1304, 1308 (2019). This objection/request, however, was not raised prior to the AOJ rating decision on appeal. As such, there can be no pre-decisional duty to assist error and it would be improper under the AMA for the Board to remand the matter for the VA to fulfill any such request at this time. If the Veteran wishes to file a supplemental claim at a later date raising such objections, the AOJ at that time will be obligated to provide information regarding the examiner's qualifications. With respect to this appeal, however, the Board finds the RO had no reason to question the competency of the examiner. While the Veteran's representative has contended that this objection should result in assigning more probative value to the July 2021 private physician's opinion, the Board finds the July 2021 private physician's opinion does not sufficiently describe the Veteran's sinusitis symptoms required for assigning a disability rating higher than 30 percent. Rather, the July 2021 private physician merely opined the Veteran should be assigned an increased rating of 40 percent in view of her worsening symptoms. Thus, the July 2021 private physician's opinion is not corroborated by the medical evidence of record to the extent that the physician states that the Veteran's disability rating should be increased ot 40 percent. Additionally, the Board assigns significant probative value to the contemporaneous December 2019 VA examination. The VA examiner thoroughly reviewed the Veteran's claims file, accounted for her lay statements, and provided a medical opinion based on medical principles. The Board finds the Veteran's statements regarding her sinusitis symptoms to be competent and credible. Thus, the Board finds that the 30 percent rating is the most appropriate rating, and the appeal is denied to this extent. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an effective date prior to May 18, 2018 for the grant of service connection for sinusitis. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38C.F.R. §3.400. To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations apply to claims filed on or after March 24, 2015, so including these claims at issue, and do not allow for compensation claims to be based on hospital treatment records but require the actual filing of the correct form designated by the Secretary of VA. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for an effective date earlier than May 18, 2018, for the award of service connection for sinusitis. The Veteran was discharged from military service in June 1992. No communications were received from her within the year following her discharge from service related to sinus condition meaning by June 1993, which, in turn, would now allow assigning an effective date back to the day following her discharge from service for the eventual grant of service connection for this consequent disability. The earliest effective date that could be assigned in this circumstance is when the Veteran eventually filed a claim for service connection for this disability. Here, correspondence reflects that, on May 18, 2018, VA received the Veteran's intent to file a claim for compensation. In August 2018, within one year from the date the intent to file was received, VA received her official claim form, VA 21-526 EZ (Application for Disability Compensation and Related Compensation Benefits), on which she affirmed that she was requesting service connection for sinusitis. In an October 2018 rating decision, the RO initially considered and denied the claim for service connection for sinusitis as this condition neither occurred in nor was caused by service. The Veteran was notified of this decision by a letter dated October 2018 and filed a timely notice of disagreement (NOD) in January 2019. The Veteran was provided a VA examination in December 2019. Following a review of the Veteran's claims file and clinical examination of the Veteran, the examiner provided an opinion that the Veteran's chronic sinusitis was at least as likely as not incurred in or caused by the sinus condition, congestion and rhinorrhea during service. In a February 2020 rating decision, service connection was granted for sinusitis. The RO assigned an effective date of May 18, 2018 for the grant of service connection for sinusitis, coinciding with the date of receipt of her intent to file a claim for this disability. As there was no communication or submission of evidence from the Veteran evincing an intent to apply for benefits or identifying the benefits sought before the May 18, 2018 intent to file, an earlier effective date is not warranted. Although there is evidence in the record indicating the Veteran's disability arose prior to filing her May 18, 2018 claim, this does not provide grounds for assigning any earlier effective date. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support the claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). The effective date for an award of service connection is not based on the earliest medical evidence demonstrating diagnosis and/or a causal connection to service, but instead on the date of receipt of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999); McGrath, 14 Vet. App. at 35 (2000). Medical evidence reflecting treatment for and diagnosis of a condition does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155(a) "because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek" service connection for that condition. See MacPhee, 459 F.3d at 1326. All that said, the Board is certainly grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.