Citation Nr: 21023192 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-35 198A DATE: April 20, 2021 ORDER Entitlement to a rating in excess of 10 percent for chronic sinusitis is denied. Entitlement to a total disability rating due to unemployability (TDIU) for the period from September 19, 2012 to November 6, 2018 is granted. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s chronic sinusitis has been characterized by 6 incapacitating episodes of sinusitis per year with pain and purulent discharge. 2. During the period from September 19, 2012 to November 6, 2018, the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.97, Diagnostic Code 6511 (2020). 2. The criteria for a total disability rating due to unemployability for the period from September 19, 2012 to November 6, 2018 have been met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1969. This matter came before the Board of Veterans Appeals (Board) on appeal from August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a January 2018 hearing. The transcript of the hearing is of record. An April 2018 Board decision dismissed the issues of increased ratings for diabetes mellitus, forehead scars and scalp wounds and remanded the remaining issues for further development. A November 2019 Board decision denied an increased rating for bronchial asthma and remanded the remaining issues on appeal for issuance of a Supplemental Statement of the Case (SSOC). An October 2020 Board decision then denied increased ratings for the Veteran’s heart disability and allergic rhinitis, granted increased ratings for right and left foot gouty arthritis and remanded the issues of an increased rating for sinusitis and entitlement to TDIU prior to November 6, 2018 for further development. 1. Entitlement to a rating in excess of 10 percent for chronic sinusitis The Veteran contends that he is entitled to an increased rating for his chronic sinusitis, which is rated at 10 percent disabling. As will be discussed in detail below, the Board finds that a rating in excess of 10 percent is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran’s chronic sinusitis is rated under Diagnostic Code (DC) 6511, which rates chronic ethmoid sinusitis. The DC rates chronic ethmoid sinusitis under the General Rating Formula for Sinusitis. Under that formula, 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. The General Rating Formula states that an incapacitating episode of sinusitis is one that requires bed rest and treatment by a physician. A 30 percent rating is warranted under the DC for three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or; more than six non-incapacitating episodes per year. A 50 percent rating is warranted for sinusitis 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. This is the highest rating available under the DC. 38 C.F.R. § 4.97, DC 6511. October 2014 VA treatment records show a prescription for nasal spray to treat congestion. August 2016 VA treatment records noted that there was no nasal discharge on examination, and no sneezing, congestion or runny nose. March 2017 VA treatment records noted sinus surgery in 2010 but did not find sinus problems. June 2017 VA treatment records noted sinus surgery in 2010, chronic cough and post-nasal drip. The Veteran said he did not think he was having problems with his sinuses. September 2018 VA treatment records noted “usual sinus symptoms.” February 2020 VA treatment records show that the Veteran denied sinus congestion and rhinorrhea. A July 2012 VA examination diagnosed sinusitis and found symptoms of sinusitis episodes with pain and purulent discharge. The examiner found 6 non-incapacitating episodes of sinusitis in the prior 12 months and no incapacitating episodes. The examiner noted a history of nasal surgery but did not specify the nature of that surgery. A March 2013 VA examination diagnosed sinusitis with symptoms of episodes of sinusitis. The examiner found 6 non-incapacitating episodes of sinusitis in the prior 12 months and no incapacitating episodes. The examiner noted a history of nasal surgery but did not specify the nature of that surgery. A November 2018 VA examination found that the Veteran no longer had recurrent sinusitis since his sinus surgery, finding ongoing symptoms were due to allergic rhinitis. The examiner noted a history of nasal septoplasty, turbinate reduction and endoscopic sinus surgery. The examiner found ongoing symptoms of allergic rhinitis. A November 2020 VA opinion stated that the Veteran’s 2010 sinus surgery was an endoscopic septoplasty and turbinate reduction. The provider stated that this did not constitute radical surgery, which was limited to treatment of malignancies or very aggressive benign conditions. The provider also found that the Veteran did not have osteomyelitis due to the 2010 surgery. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the January 2018 Board hearing, the Veteran stated that his sinusitis had worsened since his last VA examination with daily ongoing symptoms of congestion and blockage. The Board notes that the Veteran is competent to report lay observable symptoms such as congestion and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the competent evidence of record is against an evaluation above 10 percent for the period on appeal. To warrant a 30 percent rating, the evidence would need to show 3 or more incapacitating episodes per year or more than 6 non-incapacitating episodes per year. The Board finds that the competent evidence does not support the conclusion that the Veteran’s chronic sinusitis has more closely approximated the severity associated with a 30 percent rating during the period on appeal. The record is silent for any indication that the Veteran has had any incapacitating episodes of sinusitis requiring bed rest and treatment by a physician. The July 2012 and March 2013 VA examiners both found 6 incapacitating episodes per year, and the November 2018 examiner did not find any symptoms of sinusitis, finding that the Veteran no longer had recurrent sinusitis. The Board notes that these findings are consistent with the VA treatment records, which are silent for any indication that bed rest was required and show occasional reports of congestion and sinus symptoms but not more often than 6 times per year. There is simply no basis upon which the Board can conclude that the Veteran had more than 6 episodes of non-incapacitating sinusitis per year during the period on appeal. The record is also silent for any indication that the Veteran has ever had radical sinus surgery or osteomyelitis. The record shows surgery in 2010, but the November 2020 VA opinion indicated that it did not constitute radical sinus surgery and that the Veteran did not have osteomyelitis as a result of the surgery. both found that the Veteran had not had any sinus surgery, including radical surgery. The Board acknowledges the Veteran’s reports of increased congestion and blockage at the January 2018 hearing, however the November 2018 examination did not find episodes of sinusitis in the prior 12 months and indicated that the ongoing symptoms were associated with the Veteran’s service-connected allergic rhinitis rather than sinusitis. The Board notes that while the Veteran is competent to report his symptoms, as a layperson he is not competent to diagnose the underlying disease associated with those symptoms and therefore assigns more weight to the findings of the VA examiner that the ongoing symptoms were not due to sinusitis but to a separate service connected disability. The Board therefore finds that the Veteran’s chronic sinusitis during the period has been characterized by at worst 6 episodes of non-incapacitating sinusitis per year, with symptoms of pain and purulent discharge, which is encompassed by the 10 percent rating already assigned. A rating above 30 percent is therefore not warranted. Because sinusitis is specifically listed in the rating schedule, it may not be rated by analogy under a different DC. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Therefore, no other DCs are potentially applicable which might afford a higher rating on an alternative basis. The preponderance of the evidence is against a rating above 10 percent for chronic sinusitis. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 2. Entitlement to TDIU prior to November 6, 2018 The Veteran contends that he was unable to work due to his service-connected disabilities during the period prior to November 6, 2018. The Veteran is already rated at 100 percent for the period after November 6, 2018. The Board notes that the date of claim for the underlying increased rating claim was September 19, 2012 and will therefore consider whether the Veteran is entitled to TDIU for the period from September 19, 2012 to November 6, 2018. TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). During the period on appeal, the Veteran was service-connected for bronchial asthma, trauma/stressor-related disorder, coronary arteriosclerosis, chronic sinusitis, allergic rhinitis, gouty arthritis of the bilateral feet, diabetes, bilateral lower extremity peripheral neuropathy, and scalp wounds/forehead scars. For the entire period, the Veteran’s bronchial asthma was rated at 60 percent and he had a combined disability rating of 80 percent or higher. The schedular threshold has therefore been met. The Board will therefore consider whether the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. This involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran’s ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). VA may consider the Veteran’s level of education, special training, and previous work experience in making this determination as well as physical and mental disabilities due to service-connected disabilities but may not consider age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of each disability on the Veteran’s occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the determination of whether service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board’s to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16 (a) as support for the conclusion that the applicable statutory and regulatory provisions “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching a conclusion regarding employability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Veteran submitted a February 2013 VA Form 21-8940, reporting that he last worked full time in December 2007 and that he stopped working due to his disabilities. He reported that he completed high school and had been self-employed doing auto body repair for over twenty years. Regarding asthma, a March 2013 VA respiratory examination found moderate, persistent asthma, though the examiner noted that it was much improved on his current medication regimen. The examiner opined that the Veteran’s asthma was now stable, but that significantly physical work might cause a flare. The examiner opined that asthma did not affect the Veteran’s ability to do sedentary or light physical work. November 2013 VA treatment records noted that the Veteran was doing well and rarely needed to use his albuterol inhaler during the day except with exertion and was not using it at night and was sleeping well. March 2014 VA treatment records noted mild persistent asthma, and the Veteran reported a need for an albuterol inhaler 1 to 2 times per week, typically with exertion. A January 2018 VA respiratory examination found that in the prior 12 months, the Veteran had 2 asthma attacks with episodes of respiratory failure per week. The examiner opined that the Veteran’s asthma should have no effect on employment. Regarding gout, a July 2012 VA foot examination diagnosed gout, and noted daily foot pain mostly in the toes, worse with pressure. The examiner found that the disability did not affect the Veteran’s ability to work. February 2015 VA treatment records noted pain and swelling in the feet and toes. Regarding sinusitis and rhinitis, a July 2012 VA sinusitis/rhinitis examination noted symptoms of chronic nasal congestion and discharge and occasional obstruction associated with sinusitis and allergic rhinitis but found that that they did not impact his ability to work. A March 2013 VA sinusitis examination found that the Veteran had 6 non-incapacitating episodes of sinusitis in the prior 12 months. The examiner opined that the Veteran’s sinusitis was not severe enough to make him unemployable. The examiner stated that the Veteran’s sinus changes were not inflammatory or allergic in origin and were not disabling. Regarding neuropathy, an August 2012 VA examination noted a diagnosis of peripheral neuropathy and symptoms of numbness and pain in the lower extremities. The Veteran reported that he could walk about a block before his right foot hurt too much. The examiner found that the disability did not affect the Veteran’s ability to work. February 2017 VA treatment records noted neuropathy with stinging pain and tingling in the feet. March 2018 VA treatment records noted nerve pain, with shooting pain in the toes and feet with some numbness. The Veteran reported that it hurt when walking or at rest. July 2018 VA treatment records show a podiatry follow up for neuropathy, and the Veteran reported nerve pain all the time just past his ankles. September 2018 VA treatment records noted foot pain due to neuropathy. Regarding the Veteran’s cardiac disability, a March 2013 VA heart examination found symptoms of dyspnea with 7 to 10 METs and noted that the Veteran remained active. The examiner found that the Veteran’s heart condition did not limit his ability to work and specifically opined that the Veteran did not have a heart disease issue preventing him from doing sedentary work. March 2017 VA treatment records noted worsening shortness of breath (SOB). The provider noted that the Veteran could only walk 150 feet before getting SOB, and that the prior year he could walk twice as far. A January 2018 VA heart examination found that the Veteran had shortness of breath with minimal exertion and thus could only be employed in a sedentary position. Regarding the Veteran’s psychiatric disability, VA treatment records contain a May 2015 psychiatric evaluation that noted symptoms of nightmares, depression and difficulty mingling/socializing. The provider found that short and long-term memory were intact, and the Veteran was alert with good attention. A June 2016 VA examination evaluated the Veteran’s trauma/stressor-related disorder and found occupational and social impairment with reduced reliability and productivity. The examiner found symptoms of depressed mood, anxiety, disturbances of motivation and mood and problems with work and social relationships. The examiner noted the Veteran’s reports of persistent depression, irritability and feeling very detached from other people. The examiner noted that no concentration deficits were apparent and that the Veteran generally got enough sleep to feel rested. The Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the January 2018 Board hearing, the Veteran reported that he last worked in 2007 and had not been able to work since that time due to his disabilities. He specifically reported that he was not able to be on his feet. He stated that he tried to work once for a relative in a sedentary position but that he was unable to maintain the job because he could not sit for a long period of time, specifically noting that the pain from his neuropathy made it difficult. The Board notes that the Veteran is competent to report lay observable symptoms such as leg pain and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him/her to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above and resolving all doubt in favor of the Veteran, the Board finds that he was precluded from all non-marginal employment during the period prior to November 6, 2018 due to his service-connected disabilities. First, the competent evidence shows that his service-connected disabilities prevented long standing and walking as well as physical exertion. The August 2012 VA neuropathy examination noted lower extremity pain after walking a block. The March 2013 VA heart examination, though stating that sedentary work was possible, found dyspnea on exertion, and the May 2017 VA treatment records showed SOB after walking 150 feet. Throughout the entire period, the evidence indicates that the Veteran’s asthma would flare upon exertion, and the January 2018 examiner noted that for the past year the Veteran had 2 asthma attacks with periods of respiratory failure per week. The competent evidence therefore supports the conclusion that the Veteran was precluded from all active or physical employment due to his service-connected physical disabilities. The Board also finds that the Veteran’s disabilities would impact his ability to perform sedentary employment. Sedentary employment is the common meaning in society of non-physical, white collar, office-type work. First, the Veteran has submitted competent and credible testimony that he had trouble sitting for long periods due to lower extremity pain from his service-connected disabilities and that he was unable to maintain employment even in a protected environment due to those limitations. Consistent with his reports, the August 2012 VA examination and subsequent VA treatment records found neuropathic pain and numbness in the bilateral lower extremities. In addition to those physical limitations, the Veteran’s psychiatric disability further limited his ability to maintain employment. The June 2016 examination found persistent depression and anxiety as well as difficulty with both work and social relationships, and that these symptoms resulted in occupational impairment. The May 2015 VA examiner specifically noted problems interacting with others. The Board finds that these limitations, combined with the physical limitations described above, would preclude the Veteran from obtaining and maintaining any non-marginal employment. The Board acknowledges that the VA examiners found that the Veteran’s individual disabilities did not, taken separately, preclude sedentary employment. However, the Board finds that the combined impact of the Veteran’s physical and psychiatric disabilities, particularly given his educational and work history, would prevent him from obtaining and maintaining non-marginal employment. In addition, the determination regarding whether a Veteran would be able to obtain and maintain employment involves consideration not only of the impact of the Veteran’s disabilities but of his educational and employment background. Here, the Veteran has a high school education and his work history exclusively consists of active, physical employment doing auto body work. There is simply no indication in the record that the Veteran has either the training or the work experience that would enable him to obtain and maintain office-type work, particularly when his physical and psychiatric limitations are also considered. The Board therefore finds that during the period on appeal, the Veteran would be precluded from all non-marginal employment by his educational and employment background combined with his physical and psychological disabilities. Generally, the effective date of compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. A claim for TDIU is essentially a claim for an increased rating, and the effective date of an award on such claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 C.F.R. § 3.400(o). In this case, the underlying increased rating claim was received on September 19, 2012, and the TDIU application was filed in February 2013. As evidence of unemployability was submitted during the increased rating appeal TDIU is considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). The date of claim for TDIU is therefore also September 19, 2007. There is no indication in the record, and the Veteran does not contend, that he became unable to work during the year prior to September 2013. In the Veteran’s TDIU application, he reported that he became unable to work in December 2007. The Board therefore finds that the earliest possible effective date for TDIU is September 19, 2012. (Continued on next page)   The preponderance of the evidence therefore indicates that the Veteran’s service-connected disabilities rendered him unable to secure and maintain substantial gainful employment during the period from September 19, 2012 to November 6, 2018. TDIU is therefore warranted under 38 C.F.R. § 4.16(a). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.