Citation Nr: 21006797 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-31 907 DATE: February 5, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for allergic rhinitis, prior to June 26, 2019, and in excess of 30 percent since that date, is denied. Entitlement to a compensable rating of 30 percent for chronic frontal sinusitis, from December 8, 2013, to June 25, 2019, is granted. Entitlement to an increased rating in excess of 50 percent for chronic frontal sinusitis, since June 26, 2019, is denied. FINDINGS OF FACT 1. Prior to June 26, 2019, the Veteran’s allergic rhinitis was not manifested by polyps with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, rhinoscleroma, or granulomatous. 2. Since, June 26, 2019, the Veteran’s allergic rhinitis has been assigned the highest available rating for this disability. 3. Resolving all reasonable doubt in favor of the Veteran, prior to June 25, 2019, the Veteran’s chronic frontal sinusitis more closely approximated symptoms manifested by more than six non-incapacitating episodes of sinusitis per year. 4. Since June 26, 2019, the Veteran’s chronic frontal sinusitis has been assigned the highest available rating for this disability. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for allergic rhinitis, prior to June 26, 2019, and in excess of 30 percent from that date, 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) 6522. 2. The criteria for a 30 percent rating for chronic frontal sinusitis prior to June 25, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6512. 3. The criteria for a rating higher than 50 percent for chronic frontal sinusitis since June 26, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1979 to September 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Board notes that the matter last appeared before the Board in May 2018 at which time the issues were remanded for additional development. The Board notes that it directed the RO to obtain any additional outstanding private treatment records as identified by the Veteran. Specifically, the Board notes that in July 2019 the Veteran’s attorney identified private treatment records from 1991 to 2018 from 509th Medical Group at Whiteman Air Force Base. Records from July 2005 through June 2018 were associated with the claims file. In September 2020, VA notified the Veteran that documented efforts were made to obtain the records but some of the records for the period specified cannot be located and all efforts to obtain the needed information have been exhausted, and determined that further attempts to obtain the records would be futile. The language of the duty-to-assist statute states that VA “shall continue” to search for records that are in the possession of a government agency and that might help the veteran’s claim “unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.” 38 U.S.C. § 5103A(c)(2). The implementing regulation supports the conclusion that to fulfill the duty to assist, VA must make as many research record requests as are necessary and that a search for records is “futile” only when it becomes clear the record does not exist or is not in the possession of the custodian. 38 C.F.R. § 3.159(c)(2). The Board notes that the Veteran identified records from treatment during his service as well as post service. The Veteran’s service treatment records have already been associated with the claims. Additionally, the claims file contains 509th Medical Group at Whiteman Air Force Base treatment records from February 1997 to March 2009, received in January 2012. Thus, the Board finds that over the course of time, having associated with the claims file the records identified by the Veteran, the RO is in substantial compliance with the May 2018 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The duty to assist having been fulfilled, adjudication will proceed. 38 U.S.C. § 5103A. During the pendency of this appeal, in a March 2020 rating decision, the Veteran’s evaluation for allergic rhinitis was increased from 10 percent disabling to 30 percent disabling, effective June 26, 2019, and chronic frontal sinusitis was increased from zero percent disabling to 50 percent disabling, effective June 26, 2019, the date of the last VA examination. As this has resulted in separate ratings for different periods of time, based on the facts found, the Veteran’s current rating is staged. See Fenderson v. West, 12 Vet. App. 119 (1999). In deciding this appeal, the Board has considered whether this or another staged rating is more appropriate. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The benefit of the doubt rule provides that a Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Separate ratings are assigned to different conditions if they do not constitute the same disability or manifestation thereof. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In this case, the applicable rating period is from September 4, 2013, one year prior to the receipt of the claim, through the present. See Francisco, 7 Vet. App. at 58. 1. Entitlement to increased ratings for allergic rhinitis is denied. Allergic rhinitis is rated under the criteria found at 38 C.F.R. § 4.97, DC 6522, for allergic or vasomotor rhinitis. While DC 6522 does not provide for a noncompensable disability evaluation, 38 C.F.R. § 4.31 provides for zero percent evaluations in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code and the requirements for a compensable evaluation are not met. Under DC 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent, maximum rating is warranted for allergic or vasomotor rhinitis with polyps. Increased rating higher than 10 percent prior to June 26, 2019 In the November 2014 VA examination, the examiner found that the Veteran did not have symptoms of nasal polyps but did have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, complete obstruction of right side only. The physical examination also revealed permanent hypertrophy of the nasal turbinates, swollen turbinates, slight frontal tenderness, and a slightly erythematous and dry nasal mucosa. There were no findings of rhinoscleroma or granulomatous. The examiner also noted that the Veteran’s allergic rhinitis caused itchy eyes, sneezing, drippy nose all year round. The Veteran’s VA and private treatment records, dated as early as December 2013, document treatment for pertinent symptomatology, to include nasal congestion and drainage. VA treatment records from December 2016 to the present show that he was prescribed medication for rhinitis. Of note, a March 2017 private treatment record reflects that the Veteran presented with a normal nose, clear and moist oropharynx, normal mucous membranes, and no posterior oropharyngeal erythema. A February 2018 VA assessment of the Veteran’s head, eyes, ears, nose, and throat revealed that his nasal turbinates were pink and moist. Here, the medical evidence does not support that a rating higher than 10 percent is warranted for this period on review. While the November 2014 VA examination revealed greater than 50 percent obstruction of both nasal passages, the Veteran’s disability was not found to have been manifested by polyps, which is required for the next higher, 50 percent rating under DC 6522. The Board has considered other potentially applicable rating criteria but finds that a higher rating is not warranted. The symptoms were not found to manifest to rhinoscleroma as contemplated by a higher 50 percent rating under DC 6523 or granulomatous as contemplated by a 20 percent rating under DC 6524. Increased rating higher than 30 percent since June 26, 2019 In the June 2019 examination, the examiner found that the Veteran has nasal polyps but does not have greater than 50 percent obstructive of the nasal passage on both sides due to rhinitis, does not have complete obstruction of either side. The examination was negative for evidence of permanent hypertrophy of the nasal turbinates or granulomatous conditions. The June 2019 examiner noted review of the record and noted the Veteran’s medical history indicating that the Veteran has had different treatments, yet his symptoms have not resolved. He reported that he continues experiencing same symptoms since the onset of his disability, to include sinus drainage, pressure and sneezing. The Veteran’s contemporaneous medical records are consistent with the examiner’s findings. In assigned the 30 percent rating for the Veteran’s disability, RO has granted the maximum rating available for rhinitis under DC 6522. There is no evidence of record to suggest that his symptoms are more appropriately rated under another diagnostic code or that his symptoms are outside the norm such that they are not contemplated by the rating schedule. Additional Considerations For the entire pendency of the claim, the Board has considered the Veteran’s lay statements contending that higher ratings are warranted for his rhinitis. The Board acknowledges the Veteran’s reported symptoms during treatment such as cough productive of yellow-green sputum, sore throat, malaise and “walking pneumonia.” In that light, the Board acknowledges that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by a VA medical professional who have examined him. The medical findings adequately address the criteria under which the disability is evaluated and clearly demonstrate that the degree of impairment attributable to the service-connected disability. The Board accords these findings records greater weight than the Veteran’s complaints as to symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, the Veteran’s belief that he is entitled to a higher rating for his rhinitis is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following examinations. In sum, the Board finds that the available evidence does not support higher disability ratings at any time during the appeal period. Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and entitlement to a rating in excess of 10 percent prior to June 26, 2019, and in excess of 30 percent since that time, for allergic rhinitis is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a 30 percent rating for chronic frontal sinusitis prior to June 25, 2019 is granted. Sinusitis is rated under the General Rating Formula for Sinusitis (DC’s 6510-6514). Under that Formula, sinusitis detected by x-ray only warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.97, DC’s 6510-6514. 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 warrants a 10 percent rating. 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 warrants a 30 percent rating. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis; or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis is one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC’s 6510-6514, Note. On the November 2014 VA examination, the examiner noted that the Veteran’s symptoms included episodes of sinusitis, headaches, pain and tenderness of affected sinus, and purulent discharge. The examiner noted that the Veteran experienced “other” symptoms, but did not identify what those symptoms entailed. The Veteran reported being treated with antibiotics, approximately once in the past year, and stated that sometimes, antibiotics did not help his symptoms; he indicated that he did not really like taking a lot of antibiotics and that he increased his use of saline flush, prescription nasal spray, and allergy medicine when his symptoms worsened. He stated he could not breathe through his nose and sought treatment when it progressed to the point where his headaches had been ongoing for three days or more. He described having “worse months,” between December and February, when he experienced constant clogging in his sinus and an inability to breathe through his nose. The Veteran indicated that his symptoms were best during the summer. The examiner noted the Veteran had one non-incapacitating episode of sinusitis over the previous twelve months. As recorded in the examination report, the Veteran had a history of endoscopic sinus surgery in June 1997. The examiner opined that the Veteran’s condition impacted his ability to work because his headache makes it hard to concentrate and he must constantly wipe his runny nose. Resolving all doubt in favor of the Veteran, his sinusitis disability more closely approximates the criteria for a 30 percent rating for the period prior to June 26, 2019. While the November 2014 examiner noted that she could not find documentation of the Veteran’s episode of antibiotic treatment and he only had one non-incapacitating episodes over the previous twelve months, the Veteran provided a credible description of his symptoms that indicates a higher rating is warranted. Specifically, he explained that he experienced constant symptoms between December and February, and that he preferred to treat his symptoms without antibiotics. His description of his symptoms, and the impact on his daily and occupational functioning, more closely approximates a 30 percent rating for this time period. While the Board has found that the Veteran’s symptomatology more closely approximates a 30 percent rating, an even higher rating is not warranted based on the evidence of record. The Board acknowledges that the Veteran has a history of sinus surgery in 1997, this does not rise to the level of repeated surgeries and near constant sinusitis. By his own description, his symptoms improved during the summer months, and were only at their most severe for approximately three months, from December to February. The frequency, duration, and nature of his symptoms are not so severe as to better characterized as constant. Therefore, a rating higher than 30 percent is not warranted for this time period. 3. Entitlement to an increased rating in excess of 50 percent for chronic frontal sinusitis, since June 26, 2019, is denied. In June 2019, the Veteran underwent another VA examination, at which time the examiner noted that the Veteran’s axillary and ethmoid sinuses are affected. The examiner noted the Veteran’s medical history as having had different treatments for the condition, yet that his symptoms had not resolved. The Veteran reported that he continues experiencing same symptoms since the onset of the condition, consisting of sinus drainage, pressure and sneezing, and at times, constant clogging in his sinuses and being unable to breathe through his nose. The examiner found that the Veteran experiences near constant sinusitis, headaches, pain of affected sinus and purulent discharge. The examiner indicated that the Veteran has had seven or more non-incapacitating episodes characterized by headaches, pain and purulent discharge or crusting in the past twelve months. The examiner noted that the Veteran has had septoplasty and turbinoplasty sinus surgery, as well as repeated sinus-related surgical procedures. The examiner marked that results of the June 2019 paranasal sinuses x-ray imaging revealed opacification of the left maxillary sinus. The examiner opined that the Veteran’s condition impacts his ability to work in that he cannot be in dust, mold, or chemical fumes, causing limitation as to where he can work, dine or enter due to sneezing, headaches and experiencing breathing problems. Based on the above, since June 26, 2019, the Veteran’s chronic frontal sinusitis symptoms manifest to near constant sinusitis characterized by headaches, pain of affected sinus, and purulent discharge after repeated surgeries, consistent with the criteria for the current 50 percent rating. 38 C.F.R. § 4.97, DC 6513. The 50 percent rating is the maximum schedular rating available under the General Rating Formula for Sinusitis. See 38 C.F.R. § 4.97, DC’s 6510-6514. The Board finds that there are no other diagnostic codes of which the Veteran is not already compensated for the same symptoms that would allow for a higher rating. Thus, since June 26, 2019, a rating higher than 50 percent for chronic frontal sinusitis under DC 6513 is not warranted. Additional Considerations The Board has considered the Veteran’s statements as to the nature and severity of his sinusitis disability. The Veteran is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. , 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports an increased evaluation in excess of what has been assigned or that the rating criteria should not be employed, his assertions are outweighed by the medical evidence of record. (Continued on the next page) Accordingly, a 30 percent rating, and no greater, is warranted for the Veteran’s sinusitis disability prior to June 26, 2019, and a rating higher than 50 percent rating is not warranted since that date. In reaching this determination, the Board has considered the benefit-of-the-doubt doctrine, but finds that ratings higher than what has been assigned and upheld herein are not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, Associate 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.