Citation Nr: 21022300 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 11-05 035 DATE: April 15, 2021 ORDER Entitlement to an initial compensable disability rating for chronic sinusitis prior to May 24, 2015 is denied. Entitlement to a 10 percent disability rating for chronic sinusitis from May 24, 2015 to April 17, 2017 is granted. Entitlement to a compensable disability rating for chronic sinusitis from April 18, 2017 is denied. FINDINGS OF FACT 1. Prior to May 24, 2015 and from April 18, 2017, the Veteran’s sinusitis was not shown to be productive of one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain and purulent discharge or crusting. 2. Resolving doubt in the Veteran’s favor, from May 24, 2015 to April 17, 2017, his sinusitis was shown to be productive of three non-incapacitating episodes of sinusitis within a 12-month period characterized by headaches, pain and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for chronic sinusitis prior to May 24, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code (DC) 6512. 2. The criteria for entitlement to a 10 percent disability rating for chronic sinusitis from May 24, 2015 to April 17, 2017 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, DC 6512. 3. The criteria for entitlement to a compensable disability rating for chronic sinusitis from April 18, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, DC 6512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to October 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This claim was remanded by the Board for further development in February 2014 and denied in a November 2019 Board decision. The Veteran appealed the Board’s November 2019 decision to the United States Court of Appeals for Veterans Claims (Court). By way of a November 2020 Order, the Court vacated the Board’s decision, with remand for adjudication consistent with the JMR. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. 1. Entitlement to an initial compensable disability rating for chronic sinusitis prior to May 24, 2015 is denied. 2. Entitlement to a 10 percent disability rating for chronic sinusitis from May 24, 2015 to April 17, 2017 is granted. 3. Entitlement to a compensable disability rating for chronic sinusitis from April 18, 2017 is denied. Service connection for sinusitis was granted in a May 2009 rating decision. A noncompensable rating was assigned pursuant to 38 C.F.R. § 4.97, DC 6512 and made effective October 6, 2008. In his October 2009 notice of disagreement, the Veteran asserted that he still suffered from sinus infections with allergies and asthma. Under the General Rating Formula for Sinusitis, governing Codes 6510 through 6514, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted when there are 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 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 maximum 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. See 38 C.F.R. § 4.97, 6512. The note to that provision defines an “incapacitating episode” of sinusitis as one that requires bed rest and treatment by physician. Id. VA and private treatment records prior to May 2016, do not reflect complaints or findings of three non-incapacitating or one incapacitating episode of sinusitis occurring per year. On May 24, 2016, the Veteran was afforded an in-person VA examination for his sinusitis. The examiner indicated that a file review was completed. The Veteran reported having sinus surgery in 1986. He also reported experiencing chronic sinus infections for many years and seasonal allergies almost every year. He reported seasonal allergy symptoms almost every year and intermittent treatment with antibiotics. He complained of nasal stuffiness and indicated use of sinus rinses and Claritin. The Veteran reported that he had not experienced any incapacitating episodes requiring prolonged antibiotic treatment for his sinusitis in the past twelve months. However, he experienced non-incapacitating episodes including symptoms of headache, pain, purulent discharge, or crusting. The examination report reflects that the Veteran estimated these attacks to occur as often as two times per year. In Part A2 of the examination report, which asks “Does the Veteran currently have any findings, signs or symptoms attributable to chronic sinusitis?” the examiner checked the box marked “Yes.” In this section, the examiner checked boxes indicating these included: episodes of sinusitis, headaches, pain of affected sinus, tenderness of affected sinus, and purulent discharge. Based on the Board’s review of the VA and private treatment records, and the May 2016 VA examination report, an initial compensable rating is not warranted prior to May 24, 2015. This is because the evidence does not reflect the presence of at least three non-incapacitating or, one incapacitating episode of sinusitis occurring in any year period. Such complaints and findings were not noted in the medical records. Moreover, the Veteran has not now or ever reported the occurrence of sinusitis episodes of such frequency to warrant the minimum compensable rating for this appeal period. At the May 2016 VA examination, the Veteran reported that he had only experienced two non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. Thus, a compensable rating is not warranted prior to May 24, 2015. However, as pointed out by the Court, during the May 24, 2016 VA examination, the examiner noted that the Veteran was currently experiencing a non-incapacitating episode of sinusitis manifested with headaches, pain, tenderness and discharge. Resolving all reasonable doubt in the Veteran’s favor, the Board finds his episode of sinusitis that was manifesting during the May 2016 examination, brought his total sinusitis episodes to three non-incapacitating episodes within the past one-year period. Thus, effective May 24, 2015, the Veteran meets the rating criteria for 10 percent, but no higher. A higher rating is not warranted because there is no credible and competent evidence showing that the Veteran’s sinusitis manifested with at least three incapacitating episodes per year or at least seven non-incapacitating episodes per year. In April 2017, the Veteran underwent another VA examination and was seen by the same examiner as before. The examiner indicated that a file review was completed. The Veteran reported persistent nasal congestion and runny nose, which he treats with saline nasal spray. The examination report notes that the Veteran had surgery for frontal sinus drainage in 1985. However, no radical surgery was reported, and chronic osteomyelitis was again denied. The Veteran indicated that he did not experience any incapacitating episodes requiring prolonged antibiotic treatment for his sinusitis in the past twelve months. However, he experienced non-incapacitating episodes including symptoms of headache, pain, purulent discharge, or crusting. The examination report reflects that the Veteran estimated these attacks to occur as often as two times per year. The examination report also reflects that during the examination, the Veteran experienced an episode of sinusitis; however, no symptoms are associated with this episode. Rather, the examiner noted, “intermittent episodes of sinus infection.” From April 18, 2017 onward, VA examination reports and treatment records, overall, provide evidence against the Veteran’s claim for a compensable rating for sinusitis. While they show a diagnosis of sinusitis, they do not show that symptoms of the Veteran’s sinusitis result in 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, so as to meet the criteria for a 10 percent rating. Indeed, in the February 2019 Appellate Brief, the Veteran’s representative references the April 2017 VA examination report stating that it “revealed that he had two non-incapacitating episodes over the course of 12-months.” In other words, the representative did not dispute the frequency of the sinusitis episodes noted in the 2017 VA examination report. While the Veteran contends that he is entitled to an increased rating for chronic sinusitis, the evidence of record demonstrates otherwise. The evidence of record also does not show that the Veteran has undergone radical surgery for his disability followed by chronic osteomyelitis. Consequently, a compensable rating is not warranted for sinusitis from April 18, 2017 as the evidence fails to show the criteria necessary for a continued evaluation of the 10 percent rating that was assigned effective from May 24, 2015. In addressing the Court’s November 2020 JMR regarding pulmonary function testing (PFT), the Board notes that PFT results were requested in a February 2014 remand, due to a January 2009 diagnosis of bronchial asthma found in the Veteran’s private treatment records. Given the Veteran’s diagnosis and service connection for sinusitis, along with the January 2009 treatment record which noted “all-year asthma symptoms,” the Board sought a clarifying opinion to determine whether the Veteran’s asthma disorder was part and parcel of his sinusitis or a separate and non-service connected disorder. In developing this issue in a manner that would not delay future adjudication, a preemptive request was made for PFT results, as they may have been pertinent. The Board notes that during this development, the Veteran filed a separate service connection claim for asthma in July 2015 and a November 2015 rating decision denied the claim. Pursuant to the Board’s February 2014 remand, the Veteran was afforded a VA examination in April 2017 where PFT results under FEV-1 of 71 percent was noted. The examiner opined that the Veteran’s asthma is a separate condition from sinusitis. Thus, the Board finds that PFT results, while previously requested, are not relevant in this case because they do not apply to DC 6512 and the Veteran is not service-connected for asthma. In sum, from May 24, 2015 to April 17, 2017, when reasonable doubt is resolved in the Veteran’s favor, the record demonstrates that he had three non-incapacitating episodes of sinusitis which warrants a 10 percent rating and no higher pursuant to DC 6512. Prior to May 24, 2015 and from April 18, 2017, however, the Veteran’s sinusitis did not at any time manifest with symptoms and impairment of a nature, frequency and severity consistent with the criteria for a 10 percent rating (or approximating such a level of severity). The record also does not show that he underwent surgery for his disability followed by chronic osteomyelitis. Accordingly, a compensable rating is not warranted for these periods. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.