Citation Nr: 21029032 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-32 417 DATE: May 12, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for chronic sinusitis starting May 29, 2019 is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for chronic sinusitis prior to May 29, 2019 is remanded. FINDING OF FACT Starting May 29, 2019, the Veteran has not undergone radical surgery followed by chronic osteomyelitis or repeated surgeries followed by near constant sinusitis. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for chronic sinusitis starting May 29, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the United States Marine Corps from May 1997 to May 2001. These matters were previously remanded by the Board of Veterans' Appeals (Board) in October 2018. The Board's October 2018 remand directives and the subsequent actions of the Agency of Original Jurisdiction (AOJ) will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Entitlement to an increased rating in excess of 30 percent for chronic sinusitis starting May 29, 2019 is denied. In the instant case, the Veteran was initially service-connected for sinusitis at a rating of 10 percent effective January 13, 2015. See November 2015 Rating Decision. The Veteran appealed and argued he was entitled to a higher rating. In an October 2018 Board Remand, the RO was instructed to obtain a VA examination to assess the severity of the Veteran's sinusitis symptoms. Based on the findings of the additional development, the Veteran's initial rating was increased from 10 percent to 30 percent effective May 29, 2019. The RO noted that this was a partial grant. See July 2020 Rating Decision. The Veteran contends that he is entitled to an increased rating for his previously assigned 10 percent rating prior to May 29, 2019 and his currently assigned 30 percent rating. The Veteran's sinusitis has been evaluated under the provisions of 38 C.F.R. § 4.104 Diagnostic Code (DC) 6512. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Under the General Rating Formula for Sinusitis, a 10 percent rating is warranted for one or two incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating sinusitis episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted when there are three or more incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating sinusitis 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. The maximum evaluation allowable under the general rating formula is 50 percent. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6512. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, staged ratings for the disability on appeal have already been assigned; therefore, the Board will discuss the propriety of the ratings assigned at each stage. Turning to the evidence, the Veteran was afforded a VA examination in May 2019. The examiner noted a diagnosis of sinusitis, rhinitis, other nose, throat, larynx or pharynx conditions, pertinent physical findings or scars due to nose, throat, larynx or pharynx conditions. The Veteran reported symptoms including headaches, pain of affected sinus, and purulent discharge. The Veteran described his frontal headaches as throbbing pain occurring frequently during allergy season and treated with over the counter Claritin and Tylenol. The Veteran noted seven or more non-incapacitating episodes over the past 12 months and no incapacitating episodes of sinusitis requiring prolonged antibiotics treatment in the past 12 months. Additionally, the Veteran noted he has not had sinus surgery. See May 2019 VA examination. The Veteran was afforded a VA examination in July 2020. The examiner noted a diagnosis of sinusitis and rhinitis. The Veteran noted that he has had sinus surgery. Specifically, he underwent a septorhinoplasty in January 2009 to correct a deviated nasal septum. The Veteran reported symptoms including headaches. He noted one non-incapacitating episode over the past 12 months and no incapacitating episodes of sinusitis requiring prolonged antibiotics treatment in the past 12 months. See July 2020 VA examination. VA and private treatment records do not deviate from the above reporting to any significant degree. Collectively, these records document a history of chronic sinusitis accompanied by nasal discharge and headaches, but no radical or repeated surgeries therefor. Of note, the Veteran did not offer any lay testimony for consideration during the period on appeal. After a review of the record, the Board determines that a rating in excess of 30 percent is not warranted after May 29, 2019. To warrant a 50 percent rating, there must be either 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. Here, the Veteran underwent a septorhinoplasty in January 2009 to correct a deviated nasal septum. However, the July 2020 VA examiner reported that this procedure was neither "radical" nor followed by chronic osteomyelitis, and there is no additional evidence of record which contradicts these findings. Importantly, no other surgeries are noted in the record. Further, at its most severe, the Veteran reported seven or more non-incapacitating episodes in the prior 12 months with symptoms including headaches, pain of affected sinus, and purulent discharge. However, this disability picture had significantly improved by the July 2020 examination. Moreover, both examiners clearly stated that the Veteran did not demonstrate near constant sinusitis. As such, the Veteran's symptoms approximate the disability picture contemplated at the 30 percent rating. Compellingly, the Veteran has not undergone any radical sinus surgeries followed by chronic osteomyelitis or shown near constant sinusitis following repeated surgeries. Rather, he underwent one non-radical surgery followed by intermittent episodes of non-incapacitating sinusitis. Thus, the Board finds that the 30 percent rating is the most appropriate rating for the period beginning May 29, 2019, and the appeal is denied to this extent. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to an increased rating in excess of a 10 percent rating for chronic connected sinusitis prior to May 29, 2019 is remanded. Although the Board regrets the additional delay, remand is once again warranted. In particular, remand is required to obtain a retrospective medical opinion that complies with the prior Board remand instructions, and to consider lay statements of record. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (requiring substantial compliance with remand directives). In October 2018, this matter was remanded to obtain a retrospective opinion so that the Board can make an informed decision on the Veteran's appeal of the initial rating assigned for his service-connected sinusitis. The examiner was directed to consider the Veteran's statements in his July 2016 VA Form 9, specifically that he experienced sinus headaches with more than 10 incapacitating episodes a year, that his symptoms included sinus pain, purulent discharge and crusting inside the nasal cavity and passageway regularly throughout the year, and that he required treatment with over the counter medications and natural food sources. See October 2018 Board Decision. Following the October 2018 Board remand, the Veteran was afforded a VA examination in July 2020. The examiner concluded it was less likely than not that an increase in severity of the Veteran's sinusitis began in 2016. See July 2020 VA examination. However, the examiner failed to consider the Veteran's lay statements including his July 2016 Form 9, which the Board specifically asked the examiner to address. Instead, the examiner relied on recent treatment records to formulate his opinion. The Board concludes that the July 2020 addendum opinion does not substantially comply with the October 2018 Board remand directives. Therefore, remand is required. See Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, the examiner should address the Veterans reports from his December 2015 Notice of Disagreement. The Veteran reported his ongoing symptoms included frequent sniffling, watery and itchy eyes and itching of the back of the throat areas as well as postnasal drip. Additionally, the Veteran noted his sinus headaches frequently occurred around 6 times a month. See December 2015 Notice of Disagreement. In sum, the Board finds that an additional examination is necessary in order to fully consider the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Obtain a retrospective opinion regarding the Veteran's increased rating claim for his chronic sinusitis prior to May 29, 2019, preferably with an examiner who has not previously opined as to the Veteran's claim. If feasible, and if deemed necessary by the clinician selected to provide the opinion, schedule a telehealth appointment to elicit a history from the Veteran regarding his sinusitis. After eliciting a history of the Veteran's disability, the examiner should offer comments, an opinion and a supporting rationale for the following: Is it at least as likely as not that an increase in severity of the Veteran's sinusitis symptoms began prior to May 29, 2019? The opinion must be offered in accordance with DC 6512, under which a higher rating is warranted with evidence of 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. Specifically, the clinician must address the Veteran's past complaints of worsened symptoms including the contentions listed on the July 2016 Form 9 and December 2015 Notice of Disagreement. See December 2015 Notice of Disagreement.; see also July 2016 Form 9. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. [CONTINUED ON NEXT PAGE] All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.