Citation Nr: 21023437 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-57 629 DATE: April 20, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for chronic maxillary sinusitis is granted. REMANDED Service connection for bilateral pes planus is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, her chronic maxillary sinusitis manifests with at least three non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSION OF LAW The criteria an initial 10 percent rating, but no higher, for chronic maxillary sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1982 to November 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. The Board previously remanded the appeal in June 2020. Entitlement to an initial 10 percent rating, but no higher, for chronic maxillary sinusitis is granted. The Veteran contends that she is entitled to a compensable rating for her sinusitis due to the severity of her symptoms. At the February 2020 Board hearing, the Veteran indicated that symptoms include pain, headaches, constant nasal drip, and frequent colds. The Veteran also testified that treatment includes multiple medications to alleviate her pain. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The assignment of staged ratings is also appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The August 2016 rating decision on appeal granted service connection for sinusitis effective December 8, 2015, pursuant to 38 C.F.R. § 4.97, DC 6513. The Veteran’s sinusitis is currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6513. The General Rating Formula for Sinusitis provides a noncompensable rating for sinusitis that is detected by X-ray only. A 10 percent rating is assigned 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 assigned 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 assigned 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 to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. The Veteran was afforded a VA examination in June 2016. The Veteran reported intermittent headaches with nasal congestion, which were treated with nasal spray and occasional antibiotics. The current findings included headaches and nasal congestion. There were no non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge, or crusting in the past 12 months. There were no incapacitating episodes of sinusitis in the last 12 months. There was no history of sinus surgery or sinus related surgical procedures. In support of her claim, the Veteran submitted a November 2016 letter written by her treating physician, Dr. Verzosa. Dr. Verzosa indicated that the Veteran is, at times, prescribed antibiotics, and pain medication. He also indicated that the Veteran’s sinus condition periodically requires bed rest due to pain, headaches, throat, and pressure in her eyes and earache. The Veteran also submitted medical receipts for prescriptions which was received by VA in December 2016. In those records, the Veteran’s prescription history included antibiotics on occasions in January 2016, February 2016, April 2016, and May 2016. The receipts do not specify the condition for which the antibiotics were prescribed to treat, however, the antibiotics were not prescribed for longer than 6-7 days each time. VA treatment records show episodes of sinusitis. An episode is noted to have occurred in August 2017; antibiotics were not prescribed. In June 2018, the Veteran experienced sinus congestion, ear pain, and productive cough. No antibiotics were prescribed. In July 2018, the Veteran complained of sinus pain with examination showing boggy turbinate without discharge, and sinus tenderness. She was given a 10-day course of antibiotics. In July 2018, she was prescribed a short course of antibiotics and prednisone to treat sinusitis. A February 2019 treatment note reflects that she denied having any sinusitis episodes in the last three months. On the current examination, she had allergic rhinitis with boggy turbinates, but no discharge, sinus tenderness or headache. An October 2019 VA treatment record shows the Veteran was a new patient at the Center for Asthma and Allergy. The note indicates a history of chronic recurrent sinusitis. It appears that she may have been prescribed a course of antibiotics at this visit, however, the record is unclear in that regard. Pursuant to the Board remand, the Veteran was afforded a VA examination in December 2020. The Veteran reported that she experienced occasional headaches, tenderness under the eyes, and sinus pressure with use of sinus rinses. Although the examiner noted that chronic sinusitis was detected only by imaging studies, the examiner noted pain of the affected sinus. The examiner indicated that the Veteran has had 3 non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. There were no incapacitating episodes, or sinus surgery. Imaging studies revealed mucosal thickening in the left maxillary antrum, and mild ethmoidal sinus disease. Having reviewed the evidence of record, the Board finds that a compensable, 10 percent rating is warranted for the entire appeal period. As noted above, the General Rating Formula for Sinusitis provides a 10 percent rating 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. Dr. Verzosa indicated that the Veteran was, at times, prescribed antibiotics and pain medication and periodically required bed rest. He did not provide any further specifics regarding the frequency of any sinusitis episodes, nor provide details on the length of her prescribed courses of antibiotics. While the June 2016 VA examiner indicated there had been no non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge, or crusting in the past 12 months, the examiner did not specifically address the statements in the November 2016 letter from Dr. Verzosa. Review of the VA medical records reasonably reflects she experienced two to three non-incapacitating episodes of sinusitis each year. The November 2020 VA examination report shows the Veteran was estimated to have had 3 non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. This is consistent with a 10 percent rating. Thus, the evidence is at least in equipoise as to whether a compensable rating for sinusitis is warranted. Resolving doubt in favor of the Veteran, a 10 percent rating is warranted. A rating in excess of 10 percent is not warranted. To warrant a 30 percent rating, the evidence must show 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. The evidence does not support such findings in this case, at any time during the appeal period. There is no evidence of prolonged antibiotic treatment. The medical records show the use of antibiotics no longer than 10 days at most, which is far less than the four to six weeks required for a 30 percent rating. The evidence, including the medical records and VA examination reports, also does not show more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Veteran has not otherwise asserted such a frequency of sinusitis episodes has occurred and with symptoms of or similar to headaches, pain, and purulent discharge or crusting. For this reason, a 30 percent rating is not warranted. The Board has considered whether separate or higher disability ratings are warranted under any other potentially applicable Diagnostic Codes pertaining to diseases of the ear, nose, and throat. The Veteran did not have at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation or complete obstruction on one side due to traumatic septal deviation related to her condition. Therefore, a separate rating is not warranted under Diagnostic Codes 6502 or 6504. Additionally, the Veteran did not have vocal cord paralysis or any other pharyngeal or laryngeal conditions. Therefore, a higher or separate rating is not warranted under Diagnostic Codes 6515-6521. A rating in excess of 10 percent is not warranted at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There are no additional expressly or reasonably raised issues presented on the record. REASONS FOR REMAND Service connection for bilateral pes planus is remanded. The Veteran asserts that her pes planus began in service. The Board previously remanded the claim for a VA opinion to determine whether the Veteran’s pes planus is a congenital disease or a congenital defect. Pursuant to the Board’s June 2020 Remand, the Veteran was afforded a VA foot examination in December 2020 and a medical opinion was provided. Unfortunately, the opinion contains some internal inconsistencies and inaccuracies which require clarification. The examiner appears to state that the Veteran’s pes planus is both a congenital deformity and a disease. The examiner went on to answer the questions pertaining to both congenital disease and defect, as opposed to the specific questions posed based on whether the condition was determined to be a ‘disease’ or a ‘defect.’ The examiner also indicates pes planus was noted on the medical intake forms in support of finding this condition existed prior to service. However, the Veteran’s August 1982 enlistment physical examination report does not reflect findings of a foot deformity. For these reasons, an addendum opinion is required. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s pes planus. The examiner should review the claims file and this Remand. The examiner is asked to answer the following questions: 1) Is the Veteran’s bilateral pes planus a congenital defect OR a congenital disease? A defect is a structural or inherent abnormality or condition which is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a disease is capable of improvement or deterioration. a) If it is determined that pes planus is a congenital DISEASE, then is the evidence clear and unmistakable that pes planus both preexisted and was not aggravated during the Veteran’s active duty service from November 1982 to November 1985. b) If it is determined that pes planus is a congenital DEFECT, then was a disease or injury superimposed upon the congenital defect during active duty service that caused additional disability to the congenital defect? 2) If the current pes planus is not determined to be congenital in nature, is it at least as likely as not that such disability onset during or is otherwise related to the Veteran’s period of active duty service from November 1982 to November 1985? A rationale should be provided for the opinions provided. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.