Citation Nr: 21007706 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 97-34 117A DATE: February 10, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for sinusitis with headaches from July 11, 1994 to January 23, 2000 is denied. Entitlement to a 50 percent initial evaluation for sinusitis with headaches from January 24, 2000 is granted. Entitlement to an extraschedular rating for sinusitis with headaches is denied. FINDINGS OF FACT 1. From July 11, 1994 to October 6, 1996, the Veteran’s sinusitis with headaches is not characterized by migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; or manifests postoperative chronic osteomyelitis requiring repeated curettage following radical operation, or severe symptoms after repeated operations. 2. From October 7, 1996 to January 23, 2000, the Veteran’s sinusitis with headaches is not characterized by migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; or manifests chronic osteomyelitis following radical surgery, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries; or manifests postoperative chronic osteomyelitis requiring repeated curettage following radical operation, or severe symptoms after repeated operations. 3. Resolving all reasonable doubt in favor of the Veteran, from January 24, 2000, his sinusitis with headaches more closely approximates migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. The Veteran’s sinusitis with headaches does not present an exceptional or unusual disability picture as to render impractical the application of regular schedular criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 30 percent for sinusitis with headaches from July 11, 1994 to January 23, 2000 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Code 6510 (effective prior to October 7, 1996); 4.97, Diagnostic Code 6510 (effective on and subsequent to October 7, 1996); 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a 50 percent initial evaluation for sinusitis with headaches from January 24, 2000 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Code 6510, 4.124a, Diagnostic Code 8100. 3. The criteria for entitlement to an extraschedular rating for sinusitis with headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1969 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for septal deviation and perforation with secondary sinusitis and assigned a 30 percent evaluation, effective July 11, 1994. The Veteran appealed for a higher initial evaluation. This case has an extensive procedural history. The case was initially brought before the Board in March 2000, at which time the Board remanded the claim for a higher initial evaluation for septal deviation and perforation with secondary sinusitis for additional development. When the matter was returned to the Board, the Board, in an August 2002 decision, granted a separate 10 percent evaluation for septal deviation and denied a higher than 30 percent initial evaluation for sinusitis. The Veteran appealed the August 2002 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2003 Order of the Court granting a May 2003 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate that portion of the August 2002 Board decision that denied a higher than 30 percent initial evaluation in excess of 30 percent for sinusitis and remand the matter for compliance with the terms of the JMPR. In November 2003, the Board remanded the higher initial evaluation claim for sinusitis for additional development. In an April 2006 Board decision, the Board denied a higher than 30 percent initial evaluation for sinusitis. The Veteran appealed the April 2006 decision to the Court. In a September 2007 Order granting a September 2007 Joint Motion for Remand (JMR), the parties agreed to vacate the April 2006 Board decision and remand the matter for compliance with the terms of the JMR. In February 2008, the Board remanded the claim for a higher than 30 percent initial evaluation for sinusitis. In January 2015, the Board, in pertinent part, denied service connection for headaches; and remanded the higher than 30 percent initial evaluation claim for sinusitis with headaches for additional development. Finally, in August 2017, the Board, in pertinent part, remanded the higher than 30 percent initial evaluation claim for sinusitis with headaches to refer the issue to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran testified before the undersigned Veterans Law Judge at a September 2014 videoconference hearing. A transcript of this hearing is of record. In an April 2017 rating decision, the RO granted service connection for depressive disorder; and reinstated service connection for septal deviation. In a February 2019 rating decision, the RO granted entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. These issues had previously been on appeal. As these issues have been resolved by a full grant of benefits, and the Veteran has not submitted any documents indicating that he is not satisfied with the decisions, the Board finds that the issues are no longer part of the current appeal. See 38 C.F.R. § 19.26(d). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluation 1. Entitlement to an initial evaluation in excess of 30 percent for sinusitis with headaches from July 11, 1994 to January 23, 2000 2. Entitlement to a 50 percent initial evaluation for sinusitis with headaches from January 24, 2000 The Veteran contends that his sinusitis with headaches are worse than his current evaluation reflects. In particular, he described how, during the entire appeal period, he had been experiencing constant nose pain and headaches with near constant nosebleeds. He said that his headaches were so painful that he could not talk above a whisper at times. All he had to do was bend over, and he had nosebleeds that lasted for hours. He said that every doctor he had ever seen explained that his “nose was past having surgery on.” See October 1997 statements. According to a May 2000 statement, the Veteran said he had nosebleeds at least two or three times a day, which lasted for hours. He was only able to lie on the couch. His headaches were driving him “crazy.” He reported currently being prescribed Percocet by his physician to treat his headaches. At a June 2002 Board hearing, the Veteran testified that on a good week, he had two or three headaches with an associated nosebleed. During a bad week, the Veteran reported having five or six days where he was unable to move out of bed, because of his nosebleeds. He explained that his doctor had prescribed stronger and stronger pain medication for his worsening headaches, and now he was prescribed Percocet, which only relieved his symptoms half of the time. The Veteran’s wife testified that the Friday before the hearing, the Veteran experienced a bloody nose and headaches, and he was unable to get up again until Sunday. Because his physicians have explained that surgery was not available for his sinus problems due to his nasal perforation, the Veteran asserts that VA should apply the rating criteria under Diagnostic Code 8100 for migraines, since he met the 50 percent evaluation. At his September 2014 Board hearing, the Veteran testified, that he had to lie down because of his headaches three to four times a month. His pain was reportedly so intense that he was unable to talk. He had headaches associated with his nosebleeds twice a week. His nosebleeds lasted from five to ten minutes up to a couple of hours. He constantly experienced nose pain. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. VA is required to evaluate the Veteran’s disability under the most appropriate rating criteria that will provide the most benefit to the Veteran. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran’s sinusitis with headaches has been currently evaluated as 30 percent disabling, effective July 11, 1994, under 38 C.F.R. § 4.97, Diagnostic Code 6510. This rating, which has been in effect for more than 20 years, is a protected rating, and cannot be reduced, except upon a showing of fraud on the part of the Veteran, or other circumstances, not present in this case. 38 C.F.R. § 3.951(b). VA amended the rating criteria for respiratory disabilities effective October 7, 1996. See 61 Fed. Reg. 46729 (Sept. 5, 1996). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. VAOPGCPREC 7-2003 (Nov. 19, 2003). Prior to October 7, 1996, the rating criteria under Diagnostic Code 6510 for sinusitis provides a noncompensable evaluation for x-ray manifestations only, symptoms mild or occasional. A 10 percent evaluation is assigned for moderate symptoms, with discharge or crusting or scabbing, infrequent headaches. A 30 percent evaluation is assigned for severe symptoms, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A maximum 50 percent evaluation is assigned for postoperative, following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. Effective October 7, 1996, the amended rating criteria provides a General Rating Formula for Sinusitis for Diagnostic Codes 6510 through 6514. A noncompensable evaluation is warranted for sinusitis detected by x-ray only. A 10 percent evaluation 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. A 30 percent evaluation 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 evaluation 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. Based on a careful review of all the subjective and clinical evidence, the Board finds that from July 11, 1994 to October 6, 1996, the Veteran’s sinusitis with headaches do not warrant a higher 50 percent initial evaluation under the pre-October 7, 1996 rating criteria for Diagnostic Code 6510. In other words, the Veteran’s sinusitis with headaches did not manifest postoperative with chronic osteomyelitis requiring repeated curettage following radical operation, or severe symptoms after repeated operations. Rather, viewing the evidence in the light most favorable to Veteran, the Board recognizes that both the clinical evidence and subjective reports demonstrate that the Veteran had no surgical procedures associated with his service-connected sinusitis with headaches. See August 1994, September 1994, December 1997, February 1998 and July 1998 VA examinations. Indeed, the Veteran indicated that his doctors informed him that his condition was inoperable. Accordingly, the Board finds that there is no basis upon which to award a higher 50 percent initial evaluation under the pre-October 7, 1996 rating criteria for Diagnostic Code 6510. Further, the Board finds that from October 7, 1996 to January 23, 2000, the Veteran’s sinusitis with headaches do not warrant a higher 50 percent initial evaluation under the post-October 7, 1996 rating criteria for the General Rating Formula for Sinusitis. In other words, the Veteran’s sinusitis with headaches is not characterized by chronic osteomyelitis following radical surgery, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Similarly, as discussed above, the overwhelming clinical evidence and subjective reports demonstrate that the Veteran underwent no surgical procedures associated with his service-connected sinusitis with headaches. See April 2004 private physician letter, August 2008 VA examination, May 2012 VA examination, and January 2017 VA examination. Accordingly, the Board finds that there is no basis upon which to award a higher 50 percent initial evaluation under the post-October 7, 1996 rating criteria for the General Rating Formula for Sinusitis. Nevertheless, the Board finds that the Veteran’s symptomatology for his sinusitis with headaches warrant consideration for a higher initial evaluation under Diagnostic Code 8100 for migraines. On that basis, the evidence demonstrates that throughout the appeal period, the Veteran has consistently reported having headaches. Moreover, the clinical evidence has also supported the existence of the Veteran’s headaches since the beginning of his appeal period. Notably, throughout the appeal period, the Veteran has also been service-connected for his headache disability along with his sinusitis. The Board finds that the Veteran’s testimony that his physicians told him surgery was not a viable option to treat his nasal problems is both competent and credible, as the record provides no evidence to the contrary. Therefore, the evidence establishes that the Veteran would not qualify for a higher 50 percent evaluation under either the pre- or post-October 7, 1996 rating criteria for Diagnostic Code 6510 due to his lack of surgical procedure associated with his sinusitis. Thus, the Board finds that the Veteran’s service-connected sinusitis with headaches must be considered for a higher initial evaluation under Diagnostic 8100. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Under Diagnostic Code 8100, a noncompensable evaluation is warranted for migraines with less frequent attacks. A 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Court has defined characteristic prostrating attacks as migraine attacks that typically produce powerlessness or lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Neither the Court, nor the rating criteria, defines “severe economic inadaptability.” However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440 (2004). Based on a careful review of all the subjective and clinical evidence, from July 11, 1994 to January 23, 2000, the Board finds that the Veteran’s sinusitis with headaches do not warrant a higher initial evaluation under Diagnostic Code 8100. In other words, the Veteran’s sinusitis with headaches do not more closely approximate migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. According to reports at August 1994 and September 1994 VA examinations, the Veteran complained of having sinus headaches, nasal pain, and nosebleeds. His nosebleeds, which were sometimes associated with a headache, occurred daily and could last up to 30 minutes. Those nosebleeds would occur more frequently when he was active. At a December 1997 VA examination, the Veteran reported having constant, daily nosebleeds one to two times a day. According to clinical findings at February 1998 and July 1998 VA examinations, the Veteran experienced daily, throbbing headaches, which lasted for four or five hours and were accompanied by nausea. He would have several days “on and off” where his headaches required him to lie down. His nosebleeds, which occurred with the headaches, had increased in severity occurring repeatedly twice a day and lasting 20 to 30 minutes. The July 1998 VA examiner characterized his nosebleeds as intractable and his migraines as uncontrolled. Although the evidence demonstrates that the Veteran’s headaches and associated nosebleeds occurred on a daily basis, the Board finds that the frequency, severity, and duration of those symptoms are not consistent with the symptomatology associated with a 50 percent evaluation under Diagnostic Code 8100. Accordingly, the Board finds that from July 11, 1994 to January 23, 2000, the Veteran’s sinusitis with headaches is no more than 30 percent disabling. However, resolving all reasonable doubt in favor of the Veteran, the Board finds that from January 24, 2000, a higher 50 percent initial evaluation for sinusitis with headaches is warranted under Diagnostic Code 8100. At a VA clinic visit on January 24, 2000, the Veteran was prescribed Percocet to treat his headaches. In a January 2002 VA outpatient ear, nose, and throat consult note, the VA physician documented that the Veteran had nasal pain and bleeding and severe headaches around the eyes. According to the April 2004 clinical findings of a board-certified private otolaryngologist, the Veteran experienced bitemporal headaches with a nasal component occurring four to five times a week and sometimes lasting all day, but usually lasting two to three hours. He took Percocet three times per day (every four to six hours) to treat his headaches. The Veteran also had significant bleeding and crusting from his nose, which might occur three or four times per week and last up to an hour at times. The private physician noted that the frequency and need for significant medication such as Percocet was unusual. At an August 2008 VA examination, the VA examiner noted that the Veteran had nosebleeds occurring two times a week and had headaches two to three times a week. He was prescribed Oxycodone to treat his headache pain. He had reportedly not worked as a taxi driver since 1994 due to the frequency of his nosebleeds. At a May 2014 VA clinic visit, the Veteran reported having throbbing, bitemporal headaches, which occurred four to five times a week and lasted two to eight hours. He received temporary relief from his headaches with Oxycodone. At a January 2017 VA examination, the Veteran reported how his headaches had worsened over the past 10 years, that he had to lie down, that they occurred two to three times a week, and that they were sometimes associated with nosebleeds. According to clinical findings at a March 2017 VA examination, the Veteran continued to experience bitemporal headaches occurring two to three times a week and lasting for almost a full day sometimes. He had associated sensitivity to light and sound. A couple of times a week, the Veteran also had nosebleeds, which sometimes accompanied a headache. The Veteran was still treating his headaches with Oxycodone. Overall, the March 2017 VA examiner found that the Veteran had very frequent prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Given the competent and credible lay statements attesting to the frequency, severity, and duration of the Veteran’s headaches and associated symptoms, including nosebleeds, coupled with the clinical findings supporting those reports, the Board finds that as of January 24, 2000, when the Veteran was prescribed narcotic pain medication to treat his headaches, the overall evidence tends to support that the Veteran’s service-connected sinusitis with headaches more closely approximate migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, from January 24, 2000, the Veteran’s sinusitis with headaches warrant the maximum schedular evaluation of 50 percent under Diagnostic Code 8100. In summary, from July 11, 1994 to January 23, 2000, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 30 percent initial evaluation claim for sinusitis with headaches. Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claim from July 11, 1994 to January 23, 2000 must be denied. However, resolving all reasonable doubt in favor of the Veteran, from January 24, 2000, the maximum 50 percent initial evaluation for sinusitis with headaches is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an extraschedular rating for sinusitis with headaches The Veteran asserts that he warrants an extraschedular rating for his sinusitis with headaches. See October 2012 statement. In a November 2020 VA Advisory Opinion, the Director of Compensation Service denied the Veteran’s claim for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) for sinusitis with headaches. After reviewing the Veteran’s statements, treatment records, and VA examinations, the Director found that there has been no factual demonstration of impairment to earning capacity based on exceptional or unusual factors causing any disruption to employment such as hospitalizations. Taking into consideration the totality of the evidence, including the November 2020 VA Advisory Opinion, the Board has considered whether the Veteran's sinusitis with headaches presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The Veteran’s sinusitis with headaches is manifested by symptoms of nasal pain and tenderness, recurrent nosebleeds, crusting, daily headaches, difficulty breathing, sensitivity to light and sound, and nausea, which caused him to lie down until his nosebleeds and/or headaches resolved and interfered with his employment as a taxi driver. The Board recognizes that the Veteran experiences a variety of symptoms associated with his service-connected sinusitis with headaches. Given those symptoms and the limitations of assigning a higher evaluation under Diagnostic 6510 for sinusitis, the Board found that the Veteran’s sinusitis with headaches was more appropriately evaluated under Diagnostic Code 8100. In a recent U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decision, Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Vet. App. Nov. 25, 2020), the Federal Circuit held that Diagnostic Code 8100 contemplates more than just headache symptoms and requires that VA consider all the symptoms the veteran experiences as a result of migraine attacks, and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks. Id. at 13-14. In other words, whatever symptoms the veteran experiences associated with migraine attacks, VA must consider when assigning a schedular disability rating. Id. In this case, the Board finds that all of the Veteran’s symptoms, including his nasal pain and tenderness, recurrent nosebleeds, crusting, daily headaches, difficulty breathing, sensitivity to light and sound, and nausea, and their resulting effects are encompassed by his evaluation under Diagnostic Code 8100. The Board concludes that there is nothing exceptional or unusual about the Veteran's disability; the rating criteria adequately describe his disability level and symptomatology. Thun v. Peake, 22 Vet. App. 111, 115 (2008). For these reasons, the Board concludes that an extraschedular rating for sinusitis with headaches is not warranted. 38 C.F.R. § 3.321(b)(1). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.