Citation Nr: 21012510 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-24 771 DATE: March 4, 2021 ORDER Entitlement to an initial 10 percent rating for maxillary sinusitis prior to August 4, 2015, is granted. Entitlement to a rating in excess of 10 percent for maxillary sinusitis from August 4, 2015, to October 23, 2019, is denied. Entitlement to a rating in excess of 30 percent for maxillary sinusitis from October 23, 2019, is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. FINDINGS OF FACT 1. Prior to October 23, 2019, the Veteran’s maxillary sinusitis resulted in three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 2. From October 23, 2019, the Veteran’s maxillary sinusitis results in more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for maxillary sinusitis are met prior to August 4, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. 2. The criteria for a rating in excess of 10 percent for maxillary sinusitis are not met for the period from August 4, 2018, to October 23, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. 3. The criteria for a rating in excess of 30 percent for maxillary sinusitis are not met from October 23, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1979 to May 1983 and from April 1985 to September 1991. This matter is on appeal from a May 2011 rating decision. The Veteran testified before one Veterans Law Judge (VLJ) during a September 2018 hearing. The case was then remanded in May 2019 for further development. The Board’s May 2019 remand included the issues of service connection for allergic rhinitis and a right ankle disorder. As such were granted in a July 2020 rating decision, they are no longer on appeal. Following the Board’s remand, the Veteran testified at a hearing conducted before a second VLJ in January 2021. Generally, VLJs who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three VLJs. See 38 U.S.C. § 7102(a). Thus, when a Veteran has had a personal hearing before two separate VLJs during the appeal, and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held, and the appeal is then ready for appellate review. The United States Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that a Veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In this case, the Veteran waived the right to have a third hearing before a VLJ at his January 2021 hearing. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran’s maxillary sinusitis is currently rated under Diagnostic Code 6513, which evaluates impairment from chronic maxillary sinusitis. 38 C.F.R. § 4.97. Under the General Rating Formula for Sinusitis, which includes Diagnostic Code 6513, a zero percent rating is warranted when detected by X-ray only. 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. 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 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. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis. For all periods on appeal, in making these determinations, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial compensable rating for maxillary sinusitis prior to August 4, 2015 The Veteran contends that he is entitled to a higher rating due to the number of episodes of sinusitis he has each year. September 2018 Hearing Transcript at 14. The Board finds that the preponderance of the evidence supports an initial compensable rating prior to August 4, 2015. The evidence of record is in favor of finding that the Veteran had three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The October 2010 VA examination shows that the Veteran reported two episodes of sinusitis per year lasting from seven to 14 days. The Veteran testified at his September 2018 hearing that he had three to four episodes of sinusitis requiring antibiotics for seven to ten days, and minor episodes lasting only a couple of days four or five times a year. Given the Veteran’s competent and credible testimony, the Board concludes that an initial compensable rating prior to August 4, 2015, for three to six non-incapacitating episodes per year of sinusitis is warranted. An even higher rating is not warranted, as the 2010 examination, and the Veteran’s testimony, does not show three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis. The Veteran testified that antibiotic treatment only lasted for seven to ten days; consequently, it is not considered prolonged treatment. For the foregoing reasons, the preponderance of the evidence is in favor an initial 10 percent rating, but no higher, prior to August 4, 2015. 2. Entitlement to a rating in excess of 10 percent for maxillary sinusitis from August 4, 2015, to October 23, 2019 The Veteran contends that he is entitled to a higher rating due to the number of episodes of sinusitis he has each year. September 2018 Hearing Transcript at 14. The Board finds that the preponderance of the is against a rating in excess of 10 percent for maxillary sinusitis for the period from August 4, 2015, to October 23, 2019. The evidence of record is against a finding that the Veteran had three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis during this period. An August 2015 VA examination shows that the Veteran had no incapacitating episodes of sinusitis, and had five non-incapacitating episodes of sinusitis in the past 12 months. A July 2016 VA treatment record reveals that the Veteran agreed to try a course of oral antibiotic. As noted above, the Veteran’s September 2018 testimony shows that he had three to four episodes of sinusitis each requiring antibiotics for seven to ten days, and minor episodes lasting only a couple of days four or five times a year. The Board acknowledges the Veteran's testimony in January 2021 showing that he had reported “maybe” seven or eight times a year of headaches and pain underneath his eyelids. However, such does not support a finding that, during this time period, the Veteran had more than six non-incapacitating episodes per year of sinusitis headaches, pain, and purulent discharge or crusting. He indicated “maybe” having seven or eight episodes, and did not describe having purulent crusting and discharge. In light of the contemporaneous evidence of record during this specific time period, the Board is unable to conclude that he had sufficient episodes of sinusitis warranting a higher rating. Consequently, as the evidence for this time period does not reflect any incapacitating episodes or more than six non-incapacitating episodes with headaches, pain, and purulent discharge or crusting, a rating higher than 30 percent is not warranted. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the period from August 4, 2015, to October 23, 2019, for maxillary sinusitis. In denying such a rating, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating in excess of 30 percent for maxillary sinusitis from October 23, 2019 The Veteran contends that he is entitled to a higher rating due to the number of episodes of sinusitis he has each year. January 2021 Hearing Transcript at 3. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for maxillary sinusitis for the period from October 23, 2019. The evidence of record is against a finding that the Veteran has had 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 October 2019 VA examination shows that the Veteran had not had sinus surgery or near constant sinusitis. It also shows that he had seven or more non-incapacitating episodes of sinusitis. The Veteran’s January 2021 testimony similarly does not show that he had surgery or near constant sinusitis. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 30 percent for the period from October 23, 2019, for maxillary sinusitis. In denying such a rating, the Board finds that the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. The Board cannot make a fully informed decision on the issue of service connection for a left knee disorder because no VA examiner has provided an adequate opinion regarding whether such is related to service. The Veteran was provided a VA examination in November 2019; a negative nexus opinion was offered. The rationale was that there were no medical reports for evaluation of treatment of continuing knee pain after service until arthritis was noted on X-rays in 2010. Such did not address the Veteran’s clearly articulated testimony of left knee problems since service; the Board’s May 2019 remand instructed the examiner that the Veteran’s reports of his symptoms and history were to be considered in formulating any opinion. Further, relying on the absence of evidence of “chronicity of care” is not an adequate rationale. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the Board finds that remand for a new medical opinion is necessary. 2. Entitlement to service connection for a lumbar spine disorder is remanded. The Board cannot make a fully informed decision on the issue of service connection for a lumbar disorder because no VA examiner has provided an adequate opinion regarding whether such is related to service. The Veteran was provided a VA examination in November 2019; a negative nexus opinion was offered. The rationale was that there were no medical reports for evaluation of treatment of continuing back pain after service until lumbar arthritis was noted on X-rays in 2010. Such did not address the Veteran’s clearly articulated testimony of back problems since service; the Board’s May 2019 remand instructed the examiner that the Veteran’s reports of his symptoms and history were to be considered in formulating any opinion. Further, relying on the absence of evidence of “chronicity of care” is not an adequate rationale. Id. Therefore, the Board finds that remand for a new medical opinion is necessary. The matters are REMANDED for the following action: Obtain addendum medical opinions from the November 2019 VA knee and lower leg conditions and back conditions examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of the diagnosed left knee and lumbar spine disorders. The examiner is requested to review the record and opine as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that the diagnosed left knee and lumbar spine disorders had their onset in service and/or are otherwise related to a period of active service. If there is evidence of symptoms for any disorder between two periods of active service, the examiner should state whether it is clear and unmistakable that chronic disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was NOT aggravated during such subsequent service. Furthermore, attention is called to the Veteran’s assertions at his September 2018 hearing that he injured his left knee following service. (Continued on the next page)   The examiner must consider the Veteran’s September 2018 and January 2021 testimony regarding continuing left knee and lumbar spine pain since service. A complete rationale should be given for all opinions and conclusions expressed. The examiner is reminded that the absence of “chronicity of care” is not a valid basis for a negative medical conclusion. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, 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.