Citation Nr: 21013472 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-08 390 DATE: March 9, 2021 ORDER 1. Entitlement to a rating in excess of 30 percent for seasonal sinusitis with headaches is denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to November 25, 2013 is dismissed. FINDINGS OF FACT 1. During the period of appeal, the Veteran’s seasonal sinusitis with headaches is not to have been manifested by either 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. 2. The conditions found to be associated with the service-connected sinusitis (allergic rhinitis and laryngitis) are not shown to be manifested by hoarseness, with inflammation of cords or mucous membrane, or thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy; constant inability to speak above a whisper or to communicate by speech; allergic rhinitis with polyps, or without polyps but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side; or bacterial rhinitis with permanent hypertrophy of turbinates and with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, or with rhinoscleroma. 3. By letters in June 2018 and September 2019 (with a reminder notification in July 2020), the VA requested the Veteran to provide a TDIU application with information that included her work status, employment history, and educational and vocational training; more than a year has passed since the last request, and she has not complied. CONCLUSIONS OF LAW 1. A rating in excess of 30 percent for seasonal sinusitis with headaches is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Codes (Code) 6510-6514, 6516, 6519, 6522, 6523. 2. By failing to submit a requested TDIU application form for VA to obtain critical evidence needed to properly adjudicate her claim for a TDIU before November 25, 2013, the Veteran has abandoned such claim, and her appeal in the matter must also be considered abandoned. 38 U.S.C. §§ 5103(a), (b); 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1987 to April 1997, with prior active service of 11 years, 9 months, and 4 days. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 Department of Veterans Affairs (VA) rating decision, which in pertinent part, denied a rating in excess of 10 percent for seasonal sinusitis with headaches. A September 2013 Decision Review Officer (DRO) decision granted a 30 percent rating for the disability, effective September 3, 2013. A December 2016 Board decision, in pertinent part, denied increases in the staged ratings for seasonal sinusitis with headaches, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In pertinent part, an October 2017 CAVC Order granted a Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating the Board’s decision (to the extent that it denied increased ratings for the seasonal sinusitis with headaches) and remanding the matter to the Board for action consistent with the terms of the JMPR. In May 2018, December 2018, and June 2020, the Board remanded the case to the agency of original jurisdiction (AOJ) for further development of the issue. A November 2020 DRO decision granted a 30 percent rating for seasonal sinusitis with headaches, effective August 28, 2010 (the date of her claim). As explained by the Board in a December 2016 remand of the TDIU issue, the matter only concerns the period prior to November 25, 2013, in light of an October 2014 rating decision awarding service connection for a psychiatric disorder, rated 100 percent rate and special monthly compensation based on statutory housebound criteria being met, both effective November 25, 2013. 1. Entitlement to a rating in excess of 30 percent for seasonal sinusitis with headaches A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent, as far as can practicably be 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. Separate diagnostic codes identify the various disabilities. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed a claim for an increase in the 10 percent rating assigned for her seasonal sinusitis with headaches in August 2010. Since then, rating decisions including a recent (November 2020) DRO decision have, in stages, granted her an increased rating. Currently, the disability is rated at 30 percent from August 2010. She has continued her appeal for a higher rating. The Veteran’s sinusitis with headaches is rated under the General Rating Formula for Sinusitis, which is applicable to all Codes 6510 to 6514 incorporating the various types of sinusitis (pansinusitis, ethmoid, frontal, maxillary, and sphenoid). 38 C.F.R. § 4.97. The General Rating Formula, in pertinent part, provides the following for sinusitis: a 30 percent rating is assigned when the disability manifests in 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 assigned following radical surgery with chronic osteomyelitis, or when the disability manifests in near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula states that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. After applying the law to the evidence of record, the Board finds that the Veteran’s seasonal sinusitis with headaches did not meet the criteria for a rating in excess of 30 percent at any time during the period under consideration. As will be shown by the evidence, the Veteran’s disability is characterized yearly by multiple incapacitating and non-incapacitating episodes with symptoms including headaches and sinus problems. However, the medical evidence in the form of VA examination reports and medical treatment records does not show – nor does the Veteran claim – either that she has chronic osteomyelitis following radical surgery or that she experiences near constant sinusitis after repeated surgeries. Reports of VA examinations and/or opinions in May 2011, September 2013, December 2018 (with addendum opinion in January 2019), and October 2010 indicate that the Veteran does not have a history of surgeries related to her sinusitis or a history of osteomyelitis. On May 2011 VA examination the Veteran reported that her symptoms had increased in severity requiring treatment with antibiotics since January 2011. Her symptom complaints consisted of sneezing, runny nose, head and nasal congestion, and swelling and tearing of the eyes. It was noted that the Veteran did not have a history of hospitalization, trauma, neoplasm, or osteomyelitis. The examiner noted a history of incapacitating episodes including one requiring four to six weeks of antibiotic treatment and two non-incapacitating lasting seven to 14 days characterized by headache, fever, purulent drainage, and sinus pain. The examiner observed the following sinus symptoms: purulent nasal discharge, headaches, sinus pain, sinus tenderness, frequent difficulty breathing, and hoarseness. Relative to nasal obstruction, there was no left nasal obstruction, 60 percent right nasal obstruction, no nasal polyps, no permanent hypertrophy of the turbinates from bacterial rhinitis, and no rhinoscleroma. On September 2013 VA examination, the Veteran reported the following symptoms: runny nose, sneezing, congestion, sinus headaches, and watery eyes. The examiner noted the following symptoms attributable to chronic sinusitis: episodes of sinusitis, headaches, and pain and tenderness of the affected sinus. He determined that in the previous 12 months the Veteran manifested seven or more non-incapacitating episodes and no incapacitating episodes. It was noted that the Veteran had not had any sinus surgery or history of osteomyelitis. The examiner also diagnosed allergic rhinitis, and regarding it indicated there was not obstruction of the nasal passage on both sides greater than 50 percent or complete obstruction on one side, and there were no nasal polyps. The Veteran also was not found to have a larynx (e.g., laryngitis) condition. On December 2018 VA examination, the examiner found that the Veteran’s sinusitis was no longer seasonal but year-round and that she had a separate condition of allergic rhinitis (with symptoms that overlapped with sinusitis) and laryngitis. The affected sinuses were maxillary, frontal, and ethmoid. Findings relative to sinusitis were seven or more non-incapacitating episodes (but no incapacitating episodes) of sinusitis and near constant sinusitis. The Veteran had not had any sinus surgery. Findings relative to rhinitis were permanent hypertrophy of the nasal turbinates, no obstruction greater than 50 percent of the nasal passage on both sides, no complete obstruction of one side, and no nasal polyps. Findings relative to laryngitis were hoarseness twice a month and no related symptoms of inflammation of vocal cords, inflammation of mucous membrane, thickening of vocal cords, nodules of vocal cords, submucous infiltration of vocal cords, laryngectomy, or aphonia. Other related symptoms were tenderness to light palpation of the bilateral sinus regions and the right ear area, increased tearing, and sneezing (with clear rhinorrhea). Paranasal sinus X-rays were negative (i.e., sinuses were clear without evidence for sinusitis). In a January 2019 addendum opinion, the examiner clarified that the Veteran’s complaints of non-purulent runny nose, nasal congestion, watery eyes, eyelid swelling, tenderness of sinus regions, difficulty breathing, and hoarseness were manifestations of her sinusitis and may also include allergic rhinitis, which had overlapping symptoms of sneezing, clear runny nose, and hoarseness. In an October 2020 VA opinion (by a different provider who reviewed the claims file) it was indicated that the Veteran’s chronic symptoms of runny nose, nasal congestion, watery eyes, eye lid swelling, tender sinuses, shortness of breath, and hoarseness were part of, or likely secondary to, her sinusitis. A review of medical treatment records likewise do not disclose any surgeries or osteomyelitis related to the Veteran’s sinus disability. VA treatment records from August 2009 note that the Veteran had a history of chronic sinusitis and that medication for allergic rhinitis (e.g., Zyrtec and Flonase) was prescribed. A November 2009 VA outpatient record notes the Veteran denied headaches. A July 2017 VA outpatient record notes a complaint of nasal allergies, with nasal drainage and irritation; examination revealed no specific findings except for postnasal drip on a review of systems. An August 2018 VA urgent care notes there was no edema of turbinates on physical examination. An October 2019 VA outpatient record notes complaints of runny nose, nasal congestion, and cough for two weeks; physical examination of the nose confirmed drainage. On a January 2020 VA annual examination record, no specific complaints regarding sinuses were noted; on physical examination, there was normal appearing mucosa and no tenderness in frontal or maxillary sinuses. An October 2020 VA telehealth video visit record notes no specific complaints referable to the sinuses (on a review of systems there was no runny/stuffy nose); her usual medication for allergic rhinitis was re-filled. The Veteran’s lay statements (other than her reports on VA examinations and medical treatment) also do not provide a basis for finding that her disability met the criteria for an increased rating. For example, she asserted in a December 2011 notice of disagreement that the VA examiner’s determination that she only manifested two non-incapacitating episodes per year was incorrect because she experienced at least eight to nine times per year of non-incapacitating episodes, and that during these periods she remained in her house because her eyes became swollen for days at a time. In her March 2013 substantive appeal, she noted she had four to five episodes of “headaches” a year. The medical and lay evidence shows that the Veteran’s seasonal sinusitis with headaches has not met the criteria for a rating in excess of 30 percent under the General Rating Formula for Sinusitis. Despite the frequency of incapacitating and non-incapacitating episodes of sinusitis and the breadth of symptoms reported, chronic osteomyelitis or near constant sinusitis after repeated surgeries are not shown. The Board has also considered other applicable criteria, particularly in light of the two most recent VA examiners, in 2018 and 2020, who determined the Veteran had allergic rhinitis and laryngitis associated with her sinusitis. However, the evidence to include the reports, as cited above, does not show that she meets the criteria for a separate compensable rating under Code 6516 (for chronic laryngitis), Code 6519 (for aphonia), Code 6522 (for allergic or vasomotor rhinitis), or Code 6523 (for bacterial rhinitis). 38 C.F.R. § 4.97. That is, the evidence does not show any of the following in relation to these associated conditions: hoarseness, with inflammation of cords or mucous membrane, or with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy; constant inability to speak above a whisper or to communicate by speech; allergic rhinitis with polyps, or without polyps but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side; or bacterial rhinitis with permanent hypertrophy of turbinates and with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, or with rhinoscleroma. Additionally, the headaches associated with the sinusitis are not shown by the evidence to be the equivalent of migraines with characteristic prostrating attacks averaging one in two months over the last several months, for a separate 10 percent rating under 38 C.F.R. § 4.124a, Code 8100. For the reasons stated above, the preponderance of probative evidence is against the claim for a higher rating for seasonal sinusitis with headaches. In reaching this conclusion, the Board considered the doctrine of reasonable doubt. 38 C.F.R. § 4.3. However, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU prior to November 25, 2013 The Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations impose obligations on VA to provide claimants with notice and assistance in developing information and evidence necessary to substantiate a claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 38 C.F.R. § 3.159(b). As part of its duties, VA must indicate which portion of that information and evidence is to be provided by the claimant and which portion the VA will obtain on the claimant’s behalf. 38 U.S.C. § 5103(a). Where the claimant has been notified of the information or evidence to be provided by him, such information or evidence must be received by the VA within one year from the date such notice is sent. 38 U.S.C. § 5103(b). Where evidence requested in connection with an original claim or a claim for increase is not furnished within one year after the date of the request, the claim will [emphasis added] be considered abandoned. 38 C.F.R. § 3.158(a). Time limits for filing may be extended in some cases upon a showing of “good cause.” Where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. 38 C.F.R. § 3.109(b). By letter in June 2018, the VA requested the Veteran to send a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. She did not respond to the request. An August 2018 RO rating decision denied TDIU, explaining that the TDIU application form was required to further consider her claim and to verify her work status (emphasis added). An August 2018 supplemental statement of the case and a September 2018 VA letter informed the Veteran about the rating decision and that she had until June 15, 2019 to submit the requested form. Pursuant to a directive of a December 2018 Board remand, a September 9, 2019 VA letter again asked her to complete and submit a TDIU application form (VA Form 21-8940). She did not respond. Pursuant to a directive of a June 2020 Board remand, on July 9, 2020 VA sent her a letter, reminding her that she had until September 9, 2020 to complete a TDIU application with information for the period before November 23, 2013. She did not respond, nor has she requested an extension of the time limit for response. The Board is frustrated in its attempt to ensure that the record is complete by the failure on the Veteran’s part to cooperate in the development of the TDIU claim. The Board finds that further attempts at development (such as obtaining a retrospective medical opinion assessing the nature and extent of the Veteran’s functional impairment due to service-connected disabilities and their impact on various types of employment during the appeal period from August 2009 to November 25, 2013) would be pointless, given her repeated failure to respond to multiple specific requests made. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is aware that a separate application for TDIU is not necessary. However, the information elicited in such form (nature and extent of employment during the period for consideration, education, vocational training) is for consideration in a TDIU claim and critical for proper adjudication of the claim. The claims file contains medical treatment records of the Veteran, but this evidence is insufficient of itself to decide the claim, because it leaves critical facts necessary for proper adjudication of the claim unknown, to include her work status, employment history, and the nature and extent of her educational and vocational training. It is well established that VA’s duty to assist is not a one-way street; a claimant/appellant may not passively wait for assistance when her cooperation is needed for evidentiary development that is critical to the claim for VA benefits [nor may she deliberately choose to ignore multiple requests for information and authorizations for VA to secure records deemed necessary to properly adjudicate her claim]. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Despite multiple requests, the Veteran has not provided necessary information concerning her work status for the appeal period, employment history, and educational and vocational training. Such information and evidence is pertinent and critical. VA letters and the Board’s June 2020 remand specifically notified the Veteran that she had to respond in a timely manner to the information requests. She did not respond within a year of the last request (despite receiving reminders in the interim that such was necessary). As a direct consequence of her failure to cooperate, the Board is presented with an incomplete picture by which to consider her employability and is thus unable to issue a proper merits-adjudication of this matter. The controlling regulation in such circumstances is clear and unambiguous, mandating that the claim “will be considered abandoned.” See 38 C.F.R. § 3.158 (a). See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158). Hence, the Board has no recourse but to conclude that the Veteran has abandoned this claim (and the appeal in this matter). See Hyson v. Brown, 5 Vet. App. 262 (1993). As the claim seeking a TDIU is abandoned, there is no allegation of error in fact or law for appellate consideration in the matter. Accordingly, the appeal in the matter must be dismissed. 38 U.S.C. § 7105(d)(5). Given the Veteran’s total lack of cooperation/compliance with the multiple requests, the Board finds that no useful purpose would be served by yet another remand to compel compliance with instructions, under Stegall v. West, 11 Vet. App. 268, 271 (1998). The law is dispositive; given the circumstances, there is simply no other outcome. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.