Citation Nr: 21029215 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-18 645A DATE: May 12, 2021 ORDER The claim of entitlement to a 50 percent rating for sinusitis throughout the period on appeal is granted. REMANDED The claim of entitlement to service connection for chest pain, to include bradycardia, is remanded. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's service-connected sinusitis manifested with near constant symptomatology characterized by discharge, headaches, pain, and congestion. CONCLUSION OF LAW The criteria for a rating of 50 percent, schedular maximum, for service-connected sinusitis throughout the period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from July 1995 to December 1995, November 1996 to November 2003, May 2005 to November 2006, January 2008 to March 2008, and October 2008 to October 2011, to include service in the Southwest Asia (SWA) Theater of operations during the Persian Gulf War. The Veteran had additional service in the Army National Guard and the Army Reserve. The instant matter is on appeal from an October 2013 rating decision. In October 2018, the Veteran testified before the undersigned in a Travel Board hearing. A transcript of the proceedings has been associated with the record. In March 2019, the Board remanded these issues for additional evidentiary development. While the Veteran remained employed around the time of the prior remand, evidence of record reflects that she subsequently left employment around August 2020. It is unclear if she found a new position. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU rating is part of an appeal for an increased rating claim when such claim is raised by the record. Here, the Board notes that the Veteran has reported that her sinusitis causes daily symptoms that interfere and prevent her from working based upon severity. As such, the Board finds that the record raises a claim for a TDIU. 1. The claim of entitlement to a compensable rating for sinusitis prior to April 16, 2015, and in excess of 30 percent prior to January 16, 2020 The Veteran contends that she is entitled to an increased evaluation for her service-connected sinusitis due to daily symptoms of the disability. The Board notes that the Veteran was granted 50 percent for her sinusitis effective January 16, 2020, which is the schedular maximum rating for the disability. Neither the Veteran, her representative, nor the evidence of record have raised the issue of extraschedular consideration. Accordingly, the grant of 50 percent for the period since January 16, 2020, constitutes a full grant of benefits sought, and that period is no longer on appeal. Disability ratings are determined by application of a ratings schedule 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. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran's sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6513. Under the Diagnostic Codes that involve sinusitis, 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 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. The Veteran's post-service VA treatment records reflect complaints of chronic sinusitis with headaches, pain, congestion, and post-nasal drip. She previously used over the counter medication with no relief. She reported that symptoms had been worsening on multiple occasions throughout the record. In February 2015, VA treatment records noted recurring sinus infections with spontaneous pain. The Veteran's lay statements of record reflect daily sinus symptoms, to include congestion, pain or pressure, discharge, headaches, and ear itching or pressure. In September 2013, the Veteran underwent a VA examination to assess the severity of her sinusitis. During the examination, she reported nasal obstruction and stuffiness with discharge that progressively worsened since the diagnosis during service. The examiner noted that she suffered from over seven non-incapacitating episodes of sinusitis in the previous 12 months, but she did not suffer incapacitating episodes. In April 2015, the Veteran underwent a second VA examination to assess the severity of her condition. She reported that her sinusitis had worsened, and she was missing work due to sinus headaches and congestion. The examiner assessed more than seven non-incapacitating episodes within the previous 12 months with no incapacitating episodes. There was no previous surgery on her sinuses. In January 2020, the Veteran underwent a third VA examination to assess the severity of her sinusitis. She reported chronic symptoms occurring daily. The examiner provided additional elaboration on the severity of her condition, finding that she experienced near constant sinusitis that included daily runny nose, itchy eyes, fluid drainage from the ears with sneezing, headaches, and pain in the affected sinus. She experienced more than seven non-incapacitating episodes in the previous 12 months with no incapacitating episodes. The examiner reported that the Veteran may have to leave work up to once a month due to severe flare ups. In sum, the evidence of record reflects that the Veteran has experienced daily symptoms of her service-connected sinusitis throughout the period on appeal. Her lay reports have established the frequency of symptoms, and VA examinations have consistently reflected more than seven non-incapacitating episodes of sinusitis in the previous year. The most recent VA examination changed formatting of the evaluation to include more specific findings pertaining to the symptoms of sinusitis, which led to the Regional Office granting a 50 percent rating from January 2020 and on; however, these symptoms are reflected in the Veteran's lay statements and VA treatment records throughout the period on appeal. Resolving reasonable doubt in favor of the Veteran, she is entitled to a 50 percent rating for her service-connected sinusitis throughout the appellate period. REASONS FOR REMAND 1. The claim of entitlement to service connection for chest pain, to include bradycardia is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain an adequate opinion with respect to the etiology of the Veteran's chest pains. The Veteran has reported experiencing chest pains since active duty service. She stated that they began while she was deployed to Iraq, and continued thereafter. An examination was obtained in January 2020, but the examiner's opinion did not sufficiently address her lay reports of symptoms over time. Instead, the examiner briefly stated that her chest pains were caused by diagnosed sinus bradycardia, which was less likely as not due to service or exposure to toxins in SWA. Sinus bradycardia was noted to be a common arrhythmia in the general population that was more common in people who have undergone extensive physical training. It is not clear why the Veteran does not meet this criterion, nor did the examiner explain why the condition did not have an onset during service despite the Veteran's lay reports of chest pains during active duty. Thus, remand is necessary to obtain an addendum opinion with an adequate rationale. 2. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. TDIU has been raised by the record, and the Board finds that this issue is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Request that the Veteran complete a VA Form 21-8940, Application for TDIU. Obtain clarification from the Veteran regarding her work history, to include a statement as to her current employment status. All actions to obtain the requested information should be documented in the claims file. 4. Obtain an addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran's chest pains. An examination may be ordered if deemed necessary, and may be conducted via telehealth, if practicable. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: (a.) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (b.) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? (c.) If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (d.) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (e.) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (f.) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (g.) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, her active service? Please specifically address her reports of chest pain during active duty service. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and her representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.