Citation Nr: 21005499 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-30 931A DATE: February 1, 2021 ORDER Entitlement to a higher initial rating for service-connected sinusitis, rated as 30 percent disabling prior to July 24, 2018, is denied. Entitlement to an earlier effective date of July 24, 2018 for the 50 percent rating for service-connected sinusitis is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to July 24, 2018, the Veteran’s sinusitis did not follow radical surgery with chronic osteomyelitis; nor was it manifested by near-constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 2. On and after July 24, 2018, the Veteran’s sinusitis has been assigned a 50 percent rating, which is the maximum schedular rating authorized under the applicable criteria. 3. The Veteran’s service-connected disabilities have not been shown to prevent the Veteran from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a higher initial rating for sinusitis, rated as 30 percent disabling prior to July 24, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.97, Diagnostic Code 6511. 2. The criteria for an earlier effective date of July 24, 2018 for the 50 percent rating for service-connected sinusitis have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1996 to October 2004. This matter comes before the Board on appeal from August 2008 and March 2010 Regional Office (RO) rating decisions. In July 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. 1. Entitlement to a higher initial rating for sinusitis, rated as 30 percent disabling prior to September 2, 2020, and as 50 percent disabling on and after that date. Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran’s sinusitis is rated as ethmoid, chronic sinusitis under 38 C.F.R. § 4.97, Diagnostic Code 6511. Under the diagnostic codes that involve sinusitis, a 30 percent rating is warranted when there are 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 warranted 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. As noted above, the Veteran’s sinusitis is rated as 30 percent disabling prior to September 2, 2020. The Board has reviewed the evidence of record, including the Veteran’s lay statements, the VA and private medical records, and the March 2010, July 2017, and September 2020 VA examination reports. A January 2008 VA medical record notes that the Veteran has chronic sinusitis and that Nasalide was not effective. The March 2010 VA examination report notes, in relevant part, that the Veteran “describes his sinus problems as being constant. During episodes, he is incapacitated as often as 2 time(s) per month, and each incident lasts for 4 week(s).” It notes that the Veteran reported that “Antibiotic treatment lasting 4-6 weeks is needed for his sinus problem.” The Veteran reported having “headaches,” “interference with breathing through the nose, purulent discharge from the nose, hoarseness of the voice, pain and crusting. Specifically, every other week.” He reported poor response to antibiotics. This examination was conducted in connection with his service connection claim, and the examiner did not evaluate the Veterans’ sinusitis pursuant to the applicable rating criteria. A July 2012 VA medical record notes that the Veteran has had frontal headaches and yellow post-nasal drip for two weeks. The Veteran reported in his October 2012 substantive appeal that he has “to contact my provider at least every 45 days requesting antibiotics.” He reported he has “severe headaches” that “are so bad that it messes with my vision.” A May 2014 letter from the Veteran’s VA primary care physician notes that the Veteran “has been diagnosed with chronic sinusitis due to an obstruction in his sinus passageways. This condition requires him to have to take antibiotics frequently and to wear a surgical mask anytime he is out of doors.” It notes that “The sinus condition is of such severity that [the Veteran] has been advised to have sinus surgery to correct the nasal passageway obstruction.” A May 2014 VA medical record notes that the Veteran complained of “sinus pressure, sneezing, post n[a]sal drip, and greenish sputum production…. Vet requesting something for sinus infection.” He testified at his June 2014 Board hearing that he is “taking antibiotics every other two weeks if not consecutive each two weeks. And I walk around with a mask on because my sinuses are likely extremely sensitive to any type of fragrance, the outdoor.” (See Board hearing transcript, page 7.) He reported that he “really take[s] the sinus medicine to control the headache like regular ibuprofen 800 milligrams, it don’t actually stop my headaches.” He reported that he has “the debilitating headaches and the pain and the tenderness of the sinuses” “every day. It all depends on how long I’m outdoors.” (See Board hearing transcript, page 8.) He reported that the symptoms last until he takes his antibiotics and they start to take effect. He testified that he has been told by a doctor that his headaches are due to his sinusitis. An August 2014 VA medical record notes “Sinus infection – for 2+ months has had purulent nasal draina[g]e.” A September 2014 VA medical record notes that the Veteran has reported at least four to five courses of antibiotics this past year for headaches that he feels in his forehead and cheeks. A December 2015 VA medical record notes that the Veteran has had purulent post-nasal drip with productive cough for two weeks. The July 2017 VA examination report notes that the Veteran reported that his sinusitis “has gotten worse.” The examiner noted that the Veteran has the following findings, signs, or symptoms that are attributable to his chronic sinusitis: headaches; pain of affected sinus; tenderness of affected sinus; and purulent discharge. It was specifically noted that he does not have crusting and near constant sinusitis. The examiner noted that the Veteran has had seven or more non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The examiner noted that the Veteran has had three or more incapacitating episodes of sinusitis requiring prolonged (four to six weeks) of antibiotics treatment in the past 12 months. An August 2017 VA medical record notes that the Veteran was following up on sinus drainage. It notes that he has “Sinus infection- for several weeks, right ear and bilat max sinus pressure, + purulent [post-nasal drip].” The record contains a July 2018 private medical record from the ENT who subsequently performed his sinus surgery on July 24, 2018. It was noted that he “has a history of possible chronic sinusitis, recurrent sinusitis and nasal obstruction.” The Veteran “is complaining of nasal congestion, nasal discharge, sinus headaches, post nasal drainage, mostly right sided and frequent sinusitis.” It was noted that “The sinusitis occurs about every 3-4 months. The problem has not improved with aggressive medical therapy including prolonged antibiotics and allergy therapy.” On examination, it was noted that the Veteran had “septal deviation to the right and 70 % obstruction.” Later that month, he underwent a nasal septoplasty and bilateral endoscopic maxillary antrostomies and anterior ethmoidectomies. A February 2019 VA medical record notes “Recurrent Sinus infection – currently on Pen VK per local MD, last dose today[], feels he needs to extend [antibiotics].” The September 2020 VA examination report notes, in relevant part, that the Veteran has not had radical (open sinus) surgery. The Veteran reported in an October 2020 statement that he has “been having the same problems since 2012.” As noted above, the July 2017 VA examination report expressly notes that the Veteran does not have near-constant sinusitis. The 30 percent rating criteria contemplate 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. The July 2017 VA examination report reflects that the Veteran’s sinusitis manifests in such episodes. In relevant part, the evidence reflects that, while the Veteran underwent sinus surgery in July 2018, it was not radical surgery. (See September 2020 VA sinusitis examination report, noting that the Veteran has had endoscopic but not radical (open) sinus surgery.) The Board has reviewed the remaining evidence to determine whether the alternative set of the 50 percent rating criteria have been satisfied. As noted above, a 50 percent rating is warranted when there is near-constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The Board acknowledges the Veteran’s statements indicating that his sinusitis may have been near-constant during a portion of the appeals period that is currently assigned a 30 percent rating. (See, e.g., March 2010 VA examination report; June 2014 Board hearing testimony.) However, the Board further notes that, in some of his statements, the Veteran indicates that his sinusitis is not near-constant. (See, e.g., October 2012 substantive appeal in which he reported that he has “to contact my provider at least every 45 days requesting antibiotics.”) Furthermore, the Board finds that the Veteran’s medical records indicate that his sinusitis was not near-constant. The July 2017 VA examination report expressly found, based in part on review of the Veteran’s medical records, that, while the Veteran did have three or more incapacitating episodes and seven or more non-incapacitating episodes in the past 12 months, his sinusitis was not near-constant. The Veteran’s medical treatment records contain multiple episodes of sinusitis treatment, but these records do not indicate that his symptoms are near-constant. Nor was the Veteran’s surgery required because of the frequency of his sinusitis episodes. Specifically, the physician who performed the Veteran’s sinus surgery expressly noted that the Veteran’s sinusitis occurs every three to four months. The Board finds that the medical treatment records that indicate the Veteran’s sinusitis is not near-constant are more probative than his lay statements indicating otherwise, as these records provide contemporaneous documentation of the frequency with which the Veteran was reporting experiencing symptoms of sinus infection or receiving sinusitis treatment. The record also does not reflect that the Veteran has undergone “repeated surgeries.” Therefore, the Board finds that the criteria for a rating in excess of 30 percent for sinusitis are not met. The Board, however, is cognizant that the RO based the current effective date for the 50 percent rating on the date of the September 2, 2020 VA examination. The findings therein however were based in part on the Veteran’s sinus surgery which occurred on July 24, 2018. Thus, the Board finds that the Veteran is entitled to an earlier effective date of July 24, 2018 for the 50 percent rating. The maximum rating available for sinusitis under Diagnostic Code 6511 is 50 percent. Therefore, entitlement to an increased rating in excess of 50 percent for service-connected sinusitis is not warranted. The Board has considered whether a separate rating may be assigned for his sinus blockage due to septal deviation under 38 C.F.R. § 4.97, Diagnostic Code 6502 for any portion of the appeals period. The Board notes, however, that a 10 percent rating under this diagnostic code requires 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The above evidence does not reflect that either condition is met at any point during the appeals period. As noted above, the July 2018 private medical record notes that the Veteran had “septal deviation to the right and 70 % obstruction.” None of the remaining medical records reflect 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. Therefore, the criteria for a separate rating under Diagnostic Code 6502 are not met. 2. Entitlement to a TDIU. The Board has also considered whether entitlement to a TDIU is warranted. During the course of the appeals period, the Veteran has been in receipt of a combined 80 percent rating from January 10, 2008, through December 20, 2009, and a 90 percent rating on and after December 21, 2009. A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). A claim for a total compensation rating based upon individual unemployability, “presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of ‘subjective’ factors that the ‘objective’ rating does not consider.” Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A May 2014 letter from the Veteran’s VA primary care physician notes that the Veteran “has also been diagnosed with lumbosacral spine degenerative joint and disc disease (including a ruptured L5-S1 disc) causing chronic low back pain and lumbar radiculopathy.” He noted that “This disc disease is of such severity that [the Veteran] was placed on medical disability from his former employment, as his work situation was found to be an exacerbating factor in his lumbar spine degenerative joint and disc disease.” The Veteran testified at his June 2014 Board hearing that the VA Medical Center (VAMC) at which he worked “removed me from work due to my spinal condition.” (See Board hearing transcript, page 10.) It was noted that he was still in litigation over a Worker’s Compensation claim. (See Board hearing transcript, page 4.) The Veteran noted on a February 2015 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, that he last worked full time in February 2010 but became too disabled to work in January 2008. He noted that he worked as a Program Support Assistant at a VA Hospital from June 2006 to February 2010. He reported that he is unemployable due to his service-connected back disability. He reported that he did not leave his last job because of his disability. He reported that he had completed four years of college. He had completed an Associates of Science, Health Care Administration, from June 2004 to June 2006 and a Bachelors of Business Administration from August 2010 to December 2014. The record also contains a July 2017 Form WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition (Family and Medical Leave Act),” from the Department of Labor. On this form, the Veteran’s physician stated that the Veteran will need to have treatment visits at least twice per year due to this condition. He also stated that the Veteran would be unable to perform any of his job functions due to his condition during flare-ups related of the spine related to pain. It was noted that the Veteran is unable to perform functions involving prolonged sitting or standing, lifting, and driving a motor vehicle. The Veteran was seeking leave due to chronic cervical degenerative joint and disc disease and chronic lumbar spine degenerative joint and disc disease. (The Board notes service connection is not in effect for a disability of the cervical spine.) It was noted that he will not be incapacitated for a single continuous period of time due to his medical condition, including any time for treatment and recovery. It was noted that he will not need to attend follow-up treatment appointments or work part-time or on a reduced schedule because of his medical condition. It was noted that his condition will cause flare-ups periodically preventing him from performing his job functions in that he will require “strict bed rest for at least 72 hours.” It was estimated that these flare-ups occur two times per month and last three days per episode. This information was repeated in a form that was filled out in February 2018. In August 2017, a medical opinion was obtained with respect to his TDIU claim. The VA physician who reviewed the claims file and interviewed and examined the Veteran noted that “Review of the patient’s C-file medical record reveals ability to ambulate with limitations and is able to sit.” He opined that “The patient is therefore at least as likely as not able to maintain gainful employment that would involve SEDENTARY activities/positioning with periods of alternation in positioning over time.” He also noted that, “However, the back condition would limit his ability to maintain gainful employment in a PHYSICAL setting as bending will be an issue. Therefore it is less likely than not that the veteran is able to maintain gainful employment in a physical setting due to his back issues (IVDS & Radiculopathy).” The examiner noted that the Veteran “ambulates with a cane and brace. The patient is more likely to engage in sedentary work due to this.” He also stated that “Meanwhile, the chronic sinusitis would have no impact on the claimant’s ability to maintain gainful employment in either a physical or sedentary setting.” In November 2017, the Veteran’s former employer filled out a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. It was noted that the Veteran last worked on October 22, 2010, but that his last date of paid status was February 1, 2010. It was noted that he was on authorized absence, which is a paid status, from February 1, 2010, until October 22, 2010. It was noted that he had worked as a Patient Services Assistant. A December 2017 Report of Contact with the Veteran’s former employer notes that the “Veteran was removed/terminated and the record is absen[t] for this removal being connected to a service connected disability.” The employee “stated her record did not show the exact incident that precipitated the 6 months of paid authorized absence but this type of absence is usually in concert with a Worker’s Compensation claim.” The Veteran reported in a January 2018 statement that he “was removed from working at the VAMC due to the agency unwillingness to accommodate me and a legal suit was brought against the agency.” He noted that he “was referred back to the vocational rehabilitation program and at that point I was retrained and obtained a bachelor’s degree.” He also noted that he has been placed by the Army on the Permanent Disability Retired List (PDRL) and submitted a copy of the October 2017 Record of Proceedings of the Physical Disability Board of Review. This report notes a scope of review that is “limited to review of disability ratings assigned to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI [covered individual], those conditions identified by the PEB, but determined to be not unfitting or non-compensable.” It recommended “that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation.” The record also contains a June 2020 Form WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition (Family and Medical Leave Act),” from the Department of Labor. It notes that the Veteran works part time as a case manager. This form was being filled out in connection with his “Degenerative joint disease + disc disease of cervical + lumbar spine.” (The Board again notes service connection is not in effect for a disability of the cervical spine.) The Veteran’s health care provider checked the “No” box when asked “Is the employee unable to perform any of his/her job functions due to the condition.” It was noted that the condition “Will … cause episodic flare-ups periodically preventing the employee from performing his/her job functions,” and that the Veteran “will need [to] be absent for up to 72 hrs during flare up.” It was estimated that flare-ups would occur four times per month. The Veteran stated in an October 2020 statement that he has “been on FMLA for years and can no longer work full-time. I have been working part-time for two years now.” Based on the above, the Board finds that entitlement to a TDIU is not warranted during any portion of the appeals period. The Board notes that the Veteran had full-time employment until October 22, 2010, and thus finds that entitlement to a TDIU is not warranted prior to that date. The Board further finds that entitlement to a TDIU is not warranted at any point during the appeals period. This conclusion is supported by the August 2017 VA medical opinion, which specifically notes that the Veteran is “at least as likely as not able to maintain gainful employment that would involve SEDENTARY activities/positioning with periods of alternation in positioning over time.” The VA examiner specifically noted that the Veteran is able “to ambulate with limitations and is able to sit.” He also noted that, “However, the back condition would limit his ability to maintain gainful employment in a PHYSICAL setting as bending will be an issue. Therefore it is less likely than not that the veteran is able to maintain gainful employment in a physical setting due to his back issues (IVDS & Radiculopathy).” The word “sedentary” clearly has “the general sense of sitting.” The Board finds that it is reasonable to assume that the VA examiner used the term “sedentary” with this general sense of the word in mind as he noted the Veteran’s limitations were in non-sitting activities such as ambulating and bending. The July 2017 and February 2018 Forms WH-380-E note that the Veteran is unable to perform functions involving prolonged sitting, but it does not contemplate the Veteran being allowed by his employer to alternate his positioning. On the other hand, the VA examiner’s opinion contemplates the allowance of reasonable accommodation. While the VA examiner found that “it is less likely than not that the veteran is able to maintain gainful employment in a physical setting due to his back issues (IVDS & Radiculopathy),” the Board finds that the Veteran clearly possesses the necessary education and work experience to engage in sedentary employment which the Board envisions as employment that would not require the Veteran to spend a significant amount of time on his feet, ambulating or physical activity requiring lifting, bending, squatting, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks as needed to get up from a sitting position to stretch out his back and lower extremities. The Board acknowledges the Veteran’s assertion that he has been placed on the PDRL. The Board notes, however, that a PDRL does not demonstrate that the Veteran is precluded from following a substantially gainful occupation as defined by VA regulations. Rather, this designation authorizes retirement pay to service members deemed unfit for military duties because of permanent physical disability incurred while entitled to basic pay. 10 U.S.C. § 1201. Thus, the Veteran having been placed on the PDRL does not indicate entitlement to a TDIU. Moreover, the Board finds that there is no persuasive credible evidence that the Veteran is only engaged in marginal employment. The Veteran has maintained a part-time position for several years. This is evidence in favor of the conclusion that he is able to maintain employment despite his disabilities. Indeed, 38 C.F.R. § 4.1 specifically provides: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." In short, the Board finds that entitlement to a TDIU is not warranted at any point during the appeals period. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.