Citation Nr: 21005453 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-15 305 DATE: February 1, 2021 ORDER Entitlement to an initial rating of 50 percent for chronic sinusitis (ethmoid, maxillary) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s chronic sinusitis has been manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus. 2. The Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent for chronic sinusitis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6511. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to January 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in July 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In February 2019, the Veteran testified at a Travel Board hearing before a judge who recently retired. A transcript of the hearing is associated with the claims file. More recently in December 2020 the Veteran testified before the undersigned Veterans Law Judge. In a November 2019 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s chronic sinusitis (ethmoid, maxillary) to 30 percent, effective September 24, 2019. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). As to the Veteran’s claim for entitlement to a TDIU, the July 2019 Board remand directed the RO to provide the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. In November 2019, the RO sent the Veteran a letter explaining that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. The letter included a VA Form 21-8940. The Veteran did not respond to the RO and has not submitted the VA Form 21-8940. Although VA has a duty to assist the Veteran in substantiating the claim, that duty is not a one-way street, and the Veteran must cooperate in VA’s efforts to assist him. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000); 38 C.F.R. § 3.159 (c). VA satisfied its duty to assist in this case by providing the Veteran an opportunity to complete a VA Form 21-8940. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (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 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; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Entitlement to a higher initial rating for chronic sinusitis The Veteran seeks a higher initial rating for his service-connected chronic sinusitis (ethmoid, maxillary). The Veteran’s service-connected sinusitis is rated as 10 percent disabling prior to September 24, 2019 and 30 percent disabling from September 24, 2019 under 38 C.F.R. § 4.97, Diagnostic Code 6511, effective from February 1, 2006, the day following his separation from active service. The applicable rating period is from February 1, 2006, the effective date for the award of service connection for sinusitis through the present. See 38 C.F.R. § 3.400. Under Diagnostic Code 6511, a 10 percent rating on evidence of 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 on evidence of 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; and, a maximum rating of 50 percent is warranted following radical surgery with chronic osteomyelitis, or when there is 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 Code 6511. An October 2005 VA examination reflects that the Veteran has been diagnosed with chronic sinusitis and that he has had several surgeries for this condition. At the February 2019 Board hearing, the Veteran testified that he gets headaches, pain under his eyes and cheeks, and discharge. The Veteran further testified that due to his headaches related to his chronic sinusitis he sometimes needs to stay home and rest in bed. In a September 2019 letter, the Veteran’s private physician reflects that the Veteran complained of five to six sinus infections per year, near constant headaches, nasal discharge, congestion and pain. The Veteran was provided a VA examination in November 2019. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported he has had three surgeries related to his sinuses. The VA examiner noted symptoms of headaches, pain of affected sinus, and tenderness of affected sinus. The VA examiner further noted that the Veteran had seven or more non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past twelve months. Additionally, the Veteran had one incapacitating episode of sinusitis requiring prolonged antibiotics treatment in the past twelve months. The Veteran was provide a private examination by his primary care provider in June 2020. The private examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The examiner noted the Veteran’s history of near constant bilateral ethmoid and maxillary chronic sinusitis from at least March 1998 until present, with three surgeries to include repeated surgeries. The private examiner noted symptoms of chronic sinusitis, monthly near constant sinusitis, headaches, pain and tenderness of affected sinus, purulent discharge or crusting, tooth pain, and congestion. The examiner reported that the Veteran has experienced near constant sinusitis with all the above symptoms since 1998. The examiner noted that the Veteran had seven or more non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past twelve months. The examiner stated that the Veteran has had a diagnosis of near constant sinusitis since his active military service and that he has experienced all of the symptoms on a near constant basis until the present. Based on the evidence of record, the Board finds that the criteria for a 50 percent rating for sinusitis have been met. To that end, lay and objective evidence has been presented showing that the Veteran’s sinus disability is manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The Veteran has presented credible evidence regarding the severity of his sinus disability and the objective evidence supports a 50 percent rating. Additionally, the Veteran’s private physician noted that the Veteran’s sinus symptoms have been present since his separation from active service. Hence, the criteria for a 50 percent rating have been met. This is the highest rating permitted under this diagnostic code. 38 C.F.R. § 4.97, DC 6511. The Board has considered whether a higher rating by analogy is available through another diagnostic code that considers similar symptoms but has found none. In this case, the Board finds no other provision upon which to assign a rating higher than 50 percent disabling for his sinusitis. Moreover, the Veteran has not reported other symptoms not contemplated by these rating criteria. Accordingly, an initial rating of 50 percent for chronic sinusitis is granted but no more. The effective date for this rating is to be determined by the RO, and this will preserve the Veteran’s right to appeal that effective date. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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 a TDIU is denied. The Veteran seeks entitlement to a TDIU. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). During the period on appeal, the Veteran has been service connected for chronic sinusitis, rated as 50 percent disabling; degenerative joint disease lumbosacral spine, rated as 40 percent disabling; radiculopathy, right lower extremity, rated as 20 percent disabling from April 7, 2011; left knee degenerative joint disease, rated as 10 percent disabling; degenerative joint disease of the cervical spine, rated as 10 percent disabling; vitreous floaters, rated as noncompensable; hemorrhoids, rated as noncompensable; and scar, right nasolabial fold, rated as noncompensable. The regulatory percentage requirements for a TDIU have been met for the entire period on appeal since the Veteran had at least one disability ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. During the February 2019 Board hearing, the Veteran testified that he missed work due to his service-connected chronic sinusitis and recently lost his job. The July 2020 private examiner noted that the Veteran’s sinusitis has resulted in the Veteran missing work, leaving work early or going into work later. As such, the Veteran’s employment history during the period on appeal is not clear. A December 2005 VA examiner noted that due to the Veteran’s service-connected low back disability he is able to perform his routine daily activities such as bathing, dressing, and feeding without limitation. The VA examiner noted that the Veteran’s occupation was mainly sedentary and that he would be able to perform his job duties. He would need to stretch after prolonged sitting since prolonged sitting may aggravate pain. The VA examiner noted that due to the service-connected left knee disability the Veteran would have increased pain that would create some limitations in activities such as with standing and walking. In view of the above, the Board finds that, during the period on appeal the record shows that due to his service-connected disabilities the Veteran was limited to work performed mostly in a sitting position and requiring breaks for stretching. Additionally, due to his service-connected sinusitis, the Veteran would miss several days of work per year. With such limitations, the Veteran would be able to perform any number of sedentary jobs, such as clerical work, inspection work, and assembly work, which do not involve exertional activities, postural activities, or work in environments beyond the Veteran’s residual functional capacity in view of his service-connected disabilities. In that regard, the Board notes that the term “sedentary” is defined for purposes of this decision as work that requires no more than 2 hours of standing and/or walking in an 8-hour workday and involves light lifting of no more than 10 pounds. In determining whether the Veteran was entitled to a TDIU the Board has also considered the Veteran’s level of education and previous work experience. See 38 C.F.R. §§ 4.16. As noted above, the Veteran has not returned a VA Form 21-8940, as such his level of education is not known. However, a March 2019 statement in support of claim reflects that the Veteran was employed at a management and information technology consulting company. The Board finds that the work history is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical, inspection, or assembly work, or from securing or following an unskilled or semi-skilled sedentary occupation, which do not require special training and can be learned on the job site. (Continued on the next page)   The Board does not doubt that the Veteran’s service-connected disabilities limit his occupational functioning during the period on appeal. However, as discussed above, the Veteran retains the functional capacity to perform the duties required of any number of sedentary jobs that do not involve significant walking or standing and allow for some time off, such as clerical work, inspection work, and assembly work. As such, the evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities at any time during the relevant period. The preponderance of the evidence is against a finding of entitlement to a TDIU, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine 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.