Citation Nr: 21012226 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-48 014 DATE: March 3, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted throughout the entire period under appeal, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a 30 percent initial disability rating for sinusitis is granted throughout the entire period under appeal, subject to the law and regulations governing payment of monetary benefits. REMANDED Entitlement to an initial compensable disability rating for tension headaches is remanded. Entitlement to service connection for fibromyalgia is remanded. INTRODUCTION The Veteran had active service from October 1990 to December 1990 and January 1991 to June 1991. In March 2019, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in October 2019, the above-noted issues were remanded for further development. The case has since been returned for additional appellate review. FINDINGS OF FACT 1. During the entire period on appeal, the occupational and social impairment from the Veteran’s PTSD has most nearly approximated total. 2. The Veteran’s sinusitis has caused several non-incapacitating episodes per year throughout the appeal period, but does not follow radical surgery with chronic osteomyelitis, and is not near constant characterized by headaches, pain and tenderness of affected sinus with purulent discharge or crusting after repeated surgeries. CONCLUSIONS OF LAW 1. The criteria for a rating of 100 percent for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an initial 30 percent rating, but no higher, for sinusitis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6513 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds VA has complied with its duty to assist the Veteran in the development of the claims decided herein. In this respect, the Veteran’s service treatment records (STRs) have been obtained. Additionally, all available post-service medical evidence identified by the Veteran has been obtained. The Veteran was also provided a hearing before the Board in March 2019. Further, the Veteran was afforded several appropriate VA examinations to address her PTSD and sinusitis disabilities. Neither the Veteran nor her representative have identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the claims decided herein. Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2020). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2020). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2020). Factual Background and Analysis PTSD Rating The RO assigned an initial 50 percent disability rating for the Veteran’s PTSD in a March 2014 rating decision. In a recent July 2020 rating decision the RO assigned a 70 percent evaluation effective from January 22, 2020. The Board disagrees with the assigned ratings, and for reasons explained below, the Board finds a 100 percent schedular rating is warranted throughout the entire appeal period. PTSD is rated under the General Rating Formula for Mental Disorders. In pertinent part, it provides the following: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.............................................................................................................50 Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.........................70 Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name...........100 38 C.F.R. § 4.130, Diagnostic Code 9411. Critically, the Board observes the rating criteria for a 70 percent rating for PTSD indicates an array of symptoms, which are likely sufficient to cause impairment and deficiencies in most areas of life functioning, to include work, school, family relations, judgment, thinking, and mood. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon most areas of life functioning. A higher 100 percent rating is warranted when the evidence indicates total impairment. 38 C.F.R. § 4.103, Diagnostic Code 9411 (2020). The symptoms considered in determining the level of impairment under the Rating Schedule for PTSD are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board has carefully reviewed the Veteran’s treatment reports from the Philadelphia, San Diego, and East Orange VA Medical Centers. The Board has also thoroughly reviewed the results of VA examinations conducted in July 2013, August 2016, and January 2020. Additionally, the Board has considered the Veteran’s private treatment reports from Beacon of Wellness, as well as her treatment reports from the Ewing Vet Center. Further, the Board has also prudently considered the Veteran’s own statements. In sum, those records show the Veteran received limited mental health care throughout the period of this appeal. However, the above-noted evidence shows the Veteran has experienced several significant symptoms and impairments, which include: severely depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired concentration and memory, impaired judgment, disturbances of motivation and mood, impaired work and social relationships, flattened affect, difficulty with stressful circumstances, inability to maintain effective relationships, suicidal ideations, irritable behavior with angry outbursts, and an intermittent inability to perform activities of daily living and attend to her personal hygiene. Further, the evidence shows the Veteran has also experienced several strained relationships to include with her sister and former boyfriend. The Veteran has been single for approximately 13 years, which she attributes to her PTSD manifestations. Additionally, the Veteran has also experienced several conflicts at work, which nearly resulted in her resignation. Thereafter the Veteran was provided suitable accommodations, which have allowed her to maintain work in a sheltered environment. Additionally, the Veteran has experienced challenges with education, as the evidence indicates she required two years to complete a one-year certificate program. In this case, the copious evidence plainly establishes the Veteran’s psychiatric manifestations have resulted in deficiencies in all areas of life functioning. Specifically, her symptoms have significantly impaired her ability to work, caused her marked social impairments, interfered with her ability to complete college courses, caused deficiencies in judgment and thinking, and resulted in severe mood impairments. As noted above, the 100 percent evaluation criteria does not indicate total occupational and social preclusion; rather, it merely states a veteran must have total impairment. The Board again notes a 70 percent rating is warranted when psychiatric manifestations cause impairment in most areas of life functioning; however, this Veteran’s psychiatric manifestations have resulted in impairments in all areas of life. As such, the Board has afforded the Veteran the benefit of the doubt and finds her disability picture more nearly approximates the criteria necessary for a 100 percent rating for the entire period on appeal. Sinusitis Rating The Veteran is seeking to establish a higher initial rating for her service-connected sinusitis. The disability was originally granted service connection by way of the March 2014 rating decision and assigned a noncompensable disability evaluation at that time. In a more recent August 2016 rating decision the RO increased the Veteran’s sinusitis to 30 percent disabling effective from August 10, 2016. The Veteran’s sinusitis is evaluated under Diagnostic Code 6513, for chronic maxillary sinusitis. 38 C.F.R. § 4.97 (2020). Under Diagnostic Code 6513, a 10 percent evaluation is for application when sinusitis results in one or two incapacitating episodes per year 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 for application 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 for application 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. A note accompanying the rating criteria defines an incapacitating episode as one that requires bed rest and treatment by a physician. Id. At the time of her initial August 2013 VA examination, the Veteran reported chronic sinus infections, pressure, nasal congestion/drainage, headaches, and post-nasal drip with coughing and sore throat. Physical examination revealed pain and tenderness of the sinuses, as well as purulent discharge and crusting. The examiner diagnosed frontal maxillary sinusitis. The examiner also indicated the Veteran experienced two non-incapacitating episodes, and no incapacitating episodes in the past twelve months. The examiner indicated the Veteran utilized vitamin C, zinc, Claritin, nasal sprays, and herbal supplements to treat her sinusitis. The Veteran subsequently provided treatment records from the Allergy and Immunology Center in September 2014. These records show several visits for ongoing sinusitis manifestations from 2011 through 2014. These records also chronicle her receipt of several prescription medications per year to treat her sinusitis over that time period. She was again afforded a VA examination in August 2016, at which time she reported ongoing chronic sinusitis, with generally the same symptoms reported in her initial VA examination. The Veteran denied a history of surgical procedures for her sinusitis. The examiner noted crusting on physical examination, and indicated the Veteran experienced more than 7 non-incapacitating episodes of sinusitis in the past 12 months, but no incapacitating episodes during that period of time. More recently, a January 2020 VA examination report shows that the Veteran reported increased duration of her sinusitis episodes. She continued to report problems with nasal congestion, headaches, facial tenderness, pressure, drainage, and post-nasal drip with coughing and sore throat. Examination revealed pain and tenderness in the affected sinus. The Veteran was noted to have experienced more than 7 non-incapacitating episodes of sinusitis and no incapacitating episodes in the prior 12 months. Further, the Veteran again denied undergoing surgical intervention to treat her sinusitis. Based on the foregoing, the Board finds the Veteran is entitled to a disability rating of 30 percent for her frontal maxillary sinusitis throughout the appeal period. The evidence of record indicates the Veteran has experienced several episodes of non-incapacitating sinusitis, which her private treatment reports show required numerous prescriptions treatments each year from 2011 to 2014. Additionally, her August 2016 VA examination shows she experienced more than 7 incapacitating episodes in the 12-month period prior to that examination. As such, the Board has afforded the Veteran the benefit of reasonable doubt and finds she has experienced more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting throughout the entire appeal period. The Board finds, however, that a 50 percent rating is not warranted. Although the Veteran frequently and regularly is seen for treatment related to headaches, pain and tenderness, and congestion, she has not required surgical treatment of her sinusitis. As noted above, a 50 percent evaluation is warranted following either radical surgery, with chronic osteomyelitis or following repeated non-radical surgeries where a veteran continues to experience near constant sinusitis manifestations such as headaches, pain and tenderness of affected sinus, and purulent discharge or crusting. The Veteran has not required surgical intervention, and thus, a 30 percent initial rating for sinusitis, and no more, is warranted. REASONS FOR REMAND When this case was previously remanded, the Board requested a new examination to fully evaluate the Veteran’s service-connected tension headaches. The Veteran underwent VA headache disorder and sinusitis examinations in January 2020. The Board notes that in the course of the Veteran’s recent VA headaches examination, the examiner found the Veteran does not experience prostrating headaches; however, during her sinusitis examination the examiner stated the Veteran does experience headaches, which cause her to miss work. Neither examiner explained whether the Veteran experiences differing forms of headaches. Further, the headache examiner also failed to acknowledge or discuss the Veteran’s reports during her March 2019 Board hearing. In particular, the Veteran stated she had to “shut everything down,” leave work, and lay down in her darkened bedroom when she experiences headaches. The January 2020 VA examiner failed to explain why this would not constitute a prostrating headache. Based on the foregoing, the Board finds a new VA examination is necessary prior to final adjudication of this issue. Finally, in the course of the October 2019 remand, the Board acknowledged the Veteran had not been diagnosed with fibromyalgia. However, the Board specifically noted the Veteran’s reports of diffuse muscle and joint pain throughout her body. The Board determined a medical opinion was necessary to determine whether those manifestations could represent an undiagnosed Gulf War illness, or alternatively a diagnosable but medically unexplained chronic multi-symptom illness other than fibromyalgia. The Veteran underwent another fibromyalgia examination in January 2020. Following examination, the examiner again concluded the Veteran did not warrant a diagnosis of fibromyalgia. The examiner did acknowledge the Veteran’s reports of diffuse joint and muscle pains, which she attributed to certain diagnosed conditions; however, the examiner failed address whether her manifestations may represent either an undiagnosed Gulf War illness, or alternatively whether her diagnosed conditions may have medically unexplained etiologies or pathophysiologies. Accordingly, these matters are REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected headache disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. In this respect the examiner is asked to state whether the Veteran experiences prostrating attacks associated with her service-connected tension headaches. In making this determination, the examiner is asked to specifically consider and expressly discuss the Veteran’s March 2019 hearing testimony, wherein she reported she had to “shut everything down,” leave work, and lay down in her darkened bedroom when she experiences headaches. Additionally, the examiner is asked to consider and discuss the Veteran’s January 2020 sinusitis examination, wherein she again reported missing work as a result of her headaches. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 2. Also, obtain an addendum medical opinion from the VA physician that conducted the January 2020 fibromyalgia examination, if available, and if unavailable from an examiner with sufficient expertise to address the etiology of the Veteran’s diffuse muscle and joint pains. A new examination should only be conducted if deemed necessary by the physician providing the medical opinion. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner is asked to state an opinion as to whether there is a 50 percent or better probability that the Veteran’s diffuse muscle/joint pain, even if resulting from specific diagnosed condition or conditions: a) originated during her periods of active service or is otherwise etiologically related to her periods of active service; b) represent an undiagnosed illness; or c) is/are a chronic multi-symptom disability or disabilities, and if so, the examiner should state whether the disability/disabilities result from: i) a clear and distinct etiology, ii) a partially known etiology, iii) an unknown etiology, The examiner should also state whether any chronic multi-symptom muscle/joint pain disability results from: iv) a clear and distinct pathophysiology, v) a partially known pathophysiology, or (Continued on the next page)   vi) an unknown pathophysiology. The examiner must provide a complete rationale for all proffered opinions. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.