Citation Nr: 21006285 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-27 272A DATE: February 3, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to a compensable rating for chronic sinusitis prior to January 5, 2010, a rating in excess of 10 percent from January 5, 2010 to December 6, 2019, and in excess of 50 percent from December 6, 2019, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s COPD (manifested by shortness of breath) began during active service, or is otherwise related to an in-service injury or disease. 2. Prior to January 5, 2010, the Veteran’s sinusitis was not manifested by one or two incapacitating episodes of sinusitis per year or six or more non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 3. From January 5, 2010 to December 6, 2019, the Veteran’s chronic sinusitis with headaches is not productive of one or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; three or more non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 4. Effective from December 6, 2019, the Veteran is assigned the maximum schedular rating for sinusitis. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD (manifested by shortness of breath) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Prior to January 5, 2010, the criteria for an initial compensable rating for chronic sinusitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6513. 3. From January 5, 2010 to December 6, 2019, the criteria for a rating in excess of 10 percent for chronic sinusitis with headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6513. 4. Effective December 6, 2019, the criteria for a rating in excess of 50 percent for chronic sinusitis with headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1972 to October 1975 and from September 1976 to April 1981. In March 2019, the Board remanded the issues on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) for additional development. The AOJ substantially complied with the Board remand directives, and the case has since been returned to the Board for appellate review. Although the Agency of Original Jurisdiction (AOJ) did not certify the issue of TDIU as part of this appeal, the Veteran asserted during a May 2020 statement that he was unemployable due to his service-connected conditions. The Veteran stated that service-connected sinusitis along with other service-connected disabilities caused unemployability. Therefore, the Board has jurisdiction to consider the issue of entitlement to a TDIU as part of his claim for an increased rating for chronic sinusitis. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Failure to report to VA examinations Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (b). When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655 (a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. In this case, an examination was necessary to establish entitlement to the benefits sought because the examination was necessary to address the crucial question of whether the Veteran’s acquired psychiatric disorder is related to his active duty service. The evidence of record was not sufficient to reach a decision on these issues. Regarding whether good cause was shown for the Veteran’s failure to report to his scheduled VA examinations in December 2019, VA records do not reveal that the Veteran received notice of the scheduled examination for December 9, 2019. Notably, he did report for the other scheduled examinations. Thus, the Board finds that the Veteran failed to report for VA examinations with good cause as the record does not contain notice of the psychiatric examination. 1. Entitlement to service connection for COPD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Service connection can be established by evidence that shows “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that his COPD is related to his active duty service. Service treatment records are silent for any lung conditions. Specifically, his October 1975 and April 1981 separation Report of Medical Histories noted a normal chest and lungs. The Veteran underwent a VA examination in February 2002 for respiratory conditions. He was diagnosed with COPD based on diminished FEV1 on pulmonary function testing. The Veteran reported being exposed to asbestos dust while working in a shipyard for 6 months. Also, he noted exposure to jet exhaust for 2 years. He reported smoking cigarettes from age 9 to 25 and from age 34 to present. He smoked 1.5 to 2 packs per day. The examiner found that the Veteran’s COPD was unlikely due to asbestos exposure based on the short duration of exposure. A June 2017 computed tomography (CT) scan showed stable nodules in the left lower lobe since 2012, indicating a benign etiology. No new pulmonary nodules were noted. During his May 2018 Board hearing, the Veteran stated that he believed his COPD was caused by asbestos dust, diesel fumes, jet fuel, paint, and paint thinner while in military service, and the Veteran has submitted numerous medical treatises relating such to respiratory conditions such as COPD. In December 2019, the Veteran underwent a VA examination for respiratory conditions. His entire claims file was reviewed. He was diagnosed with COPD. The Veteran noticed shortness of breath in 1996 when he climbed 57 steps at work. He had to sit down and rest until his shortness of breath subsided. He followed-up with a private physician and was prescribed albuterol. The course had reportedly been progressively worse since onset. The Veteran reported a 6-month history of asbestos dust exposure that was prevalent in the shipyard from January 1974 to June 1974. The Veteran’s respiratory condition impacted his ability to work. He was a licensed professional counselor. He was retired but desired to return to work. He reported missing up to 1 week of work time in the past 12 months due to his respiratory condition. He reported being unable to talk for periods greater than 5 minutes as a time due to shortness of breath. The examiner opined that the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He explained that the Veteran smoked tobacco from the age of 9 to the age of 25. The Veteran’s medical files indicated that he resumed smoking from the age of 34 to the age of 50. He reported smoking between 1.5 and 2 packs of cigarettes a day. In February 2001, the Veteran was diagnosed with tobacco abuse. Medical research states that the leading cause of COPD is noxious gas exposure and that 80-90 percent of COPD patients are cigarette smokers. However, in smokers, the symptoms also depend on the intensity of smoking, years of exposure, and baseline of lung function. Symptoms usually begin after 20 packs of cigarettes a year. The Veteran’s medical records note a history of greater than 20 packs of cigarette consumption a year. Although the Veteran attributes his COPD to environmental pollutant exposure during active service, and the examiner recognized that environmental/occupational exposure is a risk of COPD development, there were no documented files indicating treatment for any acute inhalation exposure. Because of these findings and the significant tobacco history, the examiner opined that the Veteran’s COPD is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board gives more probative weight to the December 2019 VA examiner’s opinion because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran, a psychotherapist, opined that his COPD is related to service and that he first showed noticeable signs of COPD in 1996. See October 2020 informal hearing presentation. This opinion is, however, less probative than the VA examiner’s opinion. The Veteran did not base his opinion on objective clinical evidence to support his opinion. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Specifically, he did not account for the impact of his extensive history of smoking. Consequently, the Board gives the greater probative weight to the December 2019 VA examiner’s opinion that is accurate, provides a full explanation and rationale for the opinion, and is based on current scientific research and medical principles. Ultimately, the Board finds that the weight of the evidence is against the claim and service connection for COPD is not warranted. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a compensable rating for chronic sinusitis prior to January 5, 2010, a rating in excess of 10 percent from January 5, 2010 to December 6, 2019, and a rating in excess of 50 percent from December 6, 2019 The Veteran seeks a compensable rating for chronic sinusitis prior to January 5, 2010 and a rating in excess of 10 percent from January 5, 2010 to December 6, 2019. From December 6, 2019, the Veteran has been in receipt of a 50 percent disability rating for chronic sinusitis, which is the maximum schedular rating available for chronic sinusitis. 38 C.F.R. § 4.87, Diagnostic Code 6513. As such, and as neither the Veteran nor the record raises the issue of entitlement to an extraschedular rating for this most recent period, no further consideration will be accorded the rating effective from December 6, 2019. The Veteran’s sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6513. Pursuant to the General Rating Formula for Sinusitis, Diagnostic Codes 6510 through 6514, a 10 percent rating is warranted 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. 38 C.F.R. § 4.97. A 30 percent rating is warranted 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 maximum 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. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. See 38 C.F.R. § 4.97, Note following Diagnostic Code 6514. The Board has carefully reviewed the evidence of record and finds the evidence in this case does not warrant a compensable rating for chronic sinusitis prior to January 5, 2010 and a rating in excess of 10 percent from January 5, 2010 to December 6, 2019. At the outset, the Board notes that the Veteran’s VA treatment records are consistent with the Veteran’s VA examinations. In November 1997, the Veteran underwent a VA examination. He reported intermittent congestion, sneezing, and alternating dryness of the nasal cavity of the rhinorrhea. Postnasal discharge and throat irritation were noted. He used three medications to treat his conditions. He reported no set frequency to sinus pain: however, he reported approximately two episodes of purulent postnasal discharge or purulent rhinorrhea per year. As his symptoms were not seasonal, the aforementioned tended to be his baseline status. His use of Afrin, Pseudoephedrine, and Vancenase had greatly improved his symptoms. Therefore, his symptoms were not so severe to cause the Veteran to require bed rest. The sinus pain was improved by saline nasal irrigations. Upon examination, no purulent discharge was present in the nasal cavity and no crusts were evident. He sinuses were nontender and present. The Veteran was diagnosed with chronic rhinitis with intermittent sinusitis. The Veteran had not undergone surgery, yet the examiner noted that he would benefit from a septoplasty and endoscopic sinus surgery to open his osteo-meatal complexes. A January 2002 CT scan was normal. An April 2006 VA emergency department note indicated that the Veteran complained of sinusitis. He had yellow-green secretions from the right nostril for one day. He reported a headache around his eyes. He was prescribed medication and was instructed to schedule a follow-up appointment if he continued to have symptoms. A September 2009 VA nurse’s note indicated that the Veteran had a dry cough, postnasal drainage, and yellow nasal discharge for 2 days. He treated his symptoms with saline sinus rinse, Albuterol, Atrovent, and Flunisolide inhalers. He denied having sinus headaches. Upon examination, breath sounds were clear, with no crackles or wheezing. A January 2010 X-ray showed clear sinuses. No bony abnormality was seen. The physician found that the impression was a normal sinus series. Also, in January 2010, the Veteran underwent another VA examination for conditions of the nose, sinus, larynx, and pharynx. The Veteran reported a history of sinusitis. He did not report a history of incapacitating episodes. He reported three non-incapacitating episodes of sinusitis a year that were manifested by headaches, pain, and purulent discharge. These episodes lasted approximately 7 to 14 days. His current rhinitis symptoms included nasal congestion, excess nasal mucous, itchy nose, watery eyes, and sneezing. His current sinus symptoms included purulent nasal discharge, headaches (1-6 times per week), sinus pain, and sinus tenderness. He had constant difficulty breathing. A March 2013 VA staff note indicated that the Veteran reported a runny/stuffy nose, frontal headache, and itchy eyes. He noted shortness of breath, but no coughing, wheezing, or sputum. Upon examination, the Veteran’s mucous membranes in the nose were normal; lungs were clear without wheezing, During a May 2017 VA hernia surgery post-operative appointment, the Veteran noted that he had a cough due to sinusitis, but denied having headaches or shortness of breath. In October 2018, the Veteran had a sinus headache. During his August 2018 Board hearing, the Veteran noted that he had a headache due to his service-connected sinusitis the day prior to the hearing. During a February 2019 surgery consultation, the Veteran denied having headaches, shortness of breath, and cough. He had moist mucous membranes. In December 2019, the Veteran underwent a VA examination for sinusitis. He was diagnosed with chronic sinusitis. The Veteran stated that onset was 1973 and that the course has been intermittent, but progressively worse. His current symptoms included constant post-nasal drip, intermittent cough, periodic sinus infections (approximately 7 a year with green purulent drainage), headaches, tenderness of affected sinus, near constant sinusitis, and constant nasal congestion. The Veteran has taken daily medication to treat sinusitis since diagnosis in September 2002. He did not undergo surgery for his sinusitis. The Veteran’s sinusitis did not impact his ability to work. In January 2020, a VA examiner opining on the Veteran’s headache claim noted that the Veteran had worsening headaches with sinus congestion in September 2002. In October 2020, the Veteran’s representative argued that the January 2020 examiner’s finding of worsening headaches with sinus congestion in September 2002 warranted an increase rating for the Veteran. Based on the evidence as outlined above, the Board finds that the symptoms associated with the Veteran’s sinusitis do not meet the criteria for a compensable rating for sinusitis prior to January 5, 2010. The evidence does not reflect that the Veteran had 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. Although the Veteran reported non-incapacitating episodes of chronic sinusitis prior to January 5, 2010, the record shows that he had approximately one non-incapacitating episode per year. During his November 1997 VA examination, the Veteran reported approximately two episodes of purulent postnasal discharge or purulent rhinorrhea per year. The VA examiner found that his symptoms were not so severe to require bed rest. Furthermore, the Board finds that the symptoms associated with the Veteran’s sinusitis do not meet the criteria for a rating in excess of 10 percent from January 5, 2010 to December 6, 2019. The evidence does not reflect that the Veteran had 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 requirement for a 30 percent rating. During his January 2010 VA examination, the Veteran denied incapacitating episodes of sinusitis, yet endorsed three non-incapacitating episodes of sinusitis a year that were manifested by headaches, pain, and purulent discharge. None of the Veteran’s treatment records, including the January 2020 VA examiner notation that the Veteran had worsening headaches with sinus congestion in September 2002, reflected that the Veteran had more than six non-incapacitating episodes per year of sinusitis. The evidence also does not reflect that the Veteran 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, the requirement for a 50 percent rating. Therefore, the Board finds that the criteria for a compensable rating for chronic sinusitis prior to January 5, 2010 and a rating in excess of 10 percent from January 5, 2010 to December 6, 2019. In reaching this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board has found that the March 2015 VA examination was inadequate as the examiner did not provide a rationale for her findings, but rather relied on the rationale of a previous examination. Also, the examiner did not comment on the November 2013 opinion that found the Veteran had posttraumatic stress disorder (PTSD) due to military trauma and no evidence of a personality disorder, or the VA outpatient treatment records showing treatment for major depressive disorder and PTSD. As noted, the Veteran did not report for a scheduled mental disorder examination; however, the Board has found good cause for such failure to report. Therefore, the Veteran should be afforded a new VA examination. 5. Entitlement to a TDIU is remanded. As the Veteran’s claim for a TDIU potentially is impacted by a determination on the issue of entitlement to service connection for an acquired psychiatric disorder, Board appellate review of this issue is deferred pending completion of this inextricably intertwined service connection issue. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA mental disorders examination to determine the etiology of the Veteran’s acquired psychiatric disorders. The record must be made available to the examiner and the examiner should indicate in his/her report that the record was reviewed. The examiner is also asked to determine whether the Veteran has PTSD and/or depression. The examiner should provide an opinion as to: (i). whether it is more likely than not, less likely than not, or at least as likely as not, that any current psychiatric disorder, including PTSD and/or depression, if diagnosed, had its clinical onset during active duty, whether a psychosis was manifest within one year of service, or whether a current psychiatric disability is otherwise related to any in-service disease, injury, or event, to include any verified stressor; and (ii). whether it is more likely than not, less likely than not, or at least as likely as not that the Veteran has a personality disorder that was subject to any diagnosed superimposed psychiatric disorder resulting in additional disability. The examiner should consider the November 2013 opinion of the Veteran’s VA psychiatrist who reportedly had been treating the Veteran for PTSD related to in-service stressors for the previous four years as well as the associated and relevant VA outpatient treatment records documenting treatment for major depressive disorder and PTSD. Also, if the examiner finds that the Veteran meets the diagnostic criteria for diagnosis of PTSD, the examiner should indicate whether the claimed stressors made by the Veteran are adequate to support a diagnosis of PTSD and whether the Veteran’s symptoms are related to the claimed stressors. (Continued on the next page)   If it is not possible to provide an opinion regarding symptoms without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.