Citation Nr: 21029407 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-18 378 DATE: May 13, 2021 ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected allergic rhino sinusitis. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected allergic rhino sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from November 1968 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, following the RO denying the Veteran's claim for entitlement to a disability rating in excess of 10 percent for his service-connected allergic rhino sinusitis in August 2009, the Veteran filed a timely Notice of Disagreement (NOD) that same month. The Veteran was issued a statement of the case in April 2013, and in June 2013, the Veteran filed a VA Form 9, appealing his claim to the Board. The Veteran's claim was certified in May 2014, and the Veteran was scheduled for a hearing. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in August 2017 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. Following that hearing, in a Decision from October 2017, the Board remanded the issue on appeal for a VA examination to assess the current severity of the Veteran's service-connected allergic rhino sinusitis. That examination occurred, and the Veteran's claim was returned to the Board. In a Board Decision from June 2019, the Board denied the Veteran's claim for a disability rating in excess of 10 percent. The Veteran then appealed his claim to the United States Court of Appeals for Veterans Claims (The Court), and in an August 2020 Joint Motion for Remand (JMR), the Court vacated the Board's June 2019 decision that denied a rating in excess of 10 percent for the Veteran's service-connected allergic rhino sinusitis. The claim was then remanded to the Board. In January 2021, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran's claim has since returned to the Board, however additional evidentiary development is required before the claim on appeal is adjudicated. Entitlement to a disability rating in excess of 10 percent for service-connected allergic rhino sinusitis is remanded. The Veteran has claimed that his service-connected allergic rhino sinusitis is worse than currently rated. This was reflected in the Veteran's NOD, as well as his Form 9 from March 2013, in which he stated "I am having more problems with my sinus on a continuous [basis], I cannot get off antibiotics" In a statement submitted October 2017, the Veteran claimed to have "had many sinus infections that occur throughout the year." In evaluating the severity of a particular 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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Sinusitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis. Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. Under the General Rating Formula for Sinusitis, a noncompensable evaluation contemplates sinusitis detected by X-ray only. A 10 percent evaluation 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. A 30 percent evaluation 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 evaluation 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 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. In addition, allergic rhinitis is evaluated as 10 percent disabling where there are no polyps, and there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A 30 percent evaluation is warranted where there are polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. In a statement from February 2019, the Veteran wrote that he has "six to eight" non-incapacitating infections, and "more than four incapacitating infections" per year. He stated that his nose experiences crusting, he sneezes loudly, he experiences headaches, dizziness, nausea, vomiting, and has difficulty concentrating and sleeping. The Veteran also testified before the undersigned Veteran's Law Judge in August 2017. The Veteran testified that he has approximately "four or five or six" sinus infections over the past twelve months, which "seem to be getting worse as time goes by instead of getting better." He also testified that his sinus infections cause pain and tenderness under his eyes, crusting, breathing difficulty, and that he feels tired. The Veteran further testified that he takes medication for his symptoms, including antibiotics and "some steroid medicine and nasal spray," and that these symptoms last 'anywhere from two weeks to over a month." The Veteran testified that the steroid medicine sometimes takes the form of a shot. The Veteran is competent to describe observable symptoms such as those associated with his sinus symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As noted above, the Veteran's claim was remanded in October 2017 for a VA examination. The remand directives specifically requested that the RO attempt to schedule the VA examination during a period of active infection and/or flare-up of the sinusitis disability, and then to provide an assessment as to their current severity. That VA examination occurred in November 2017, however as noted by the Court JMR from August 2020, the November 2017 VA examination was inadequate. In brief, the VA examination was not scheduled during a period of active infection and/or flare up of the sinusitis. Furthermore, the Veteran had provided competent statements that his disability may have worsened since the November 2017 VA examination. See February 2019 Statement. As a result, the Veteran's claim was remanded in January 2021 by the Board for a new VA examination. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination); see further Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination). That examination occurred by a VA-contracted facility in March 2021. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran's diagnosis of allergic rhino sinusitis. It is unclear if the Veteran was scheduled during a period of active infection, although the Veteran indicated "current" symptoms of nasal congestion daily, nasal discharge/thick yellow mucus every 2 months, sinus pressure and sinus headaches with associated dizziness every 2 months, post-nasal drip every 2 months, swollen/watery eyes daily. The examiner then noted that the Veteran had reported "6 episodes of sinusitis over the past 12 months." The examiner labeled these six episodes as non-incapacitating. The examiner also noted that the Veteran had experienced a single incapacitating episode of sinusitis requiring bed rest and treatment prescribed by a physician over the past twelve months. No further signs or symptoms were noted. Most recently, the Veteran submitted a statement in April 2021 writing that his symptoms were worse than identified by the March 2021 VA-contracted examination. The Veteran wrote that they were "wrong on the number of times in the last year of incapacitating episodes." Importantly, the Veteran wrote that "I must have misunderstood her question." He wrote that he gets "more than six episodes, where I could not get out of bed for a few days because [of] headaches related to my sinus." He stated that he has "eight or nine months a year with sinus problems in one form or another." Again, the Veteran is competent to report as to the symptoms he experiences, to include those related to his sinusitis. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Having said that, the record does not reflect that the Veteran possesses the requisite expertise to provide a medical diagnosis to prescribe bed rest and treatment. See Jandreau, Id (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). Importantly, this is required under the description of an incapacitating episode of sinusitis, as identified by the 'Note' under Diagnostic Code 6514. However, affording the Veteran the benefit of the doubt, his April 2021 statement indicates that he was confused by the question, and perhaps by the difference between incapacitating versus non-incapacitating episodes. That statement also indicates that his sinusitis may be worse than indicated by the March 2021 VA-contracted examination. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected allergic rhino sinusitis. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). During the VA exam, the examiner is asked to provide to the Veteran a full description of the difference between incapacitating and non-incapacitating episodes, so that he may accurately describe the symptoms that he experiences. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Forward the Veteran's claims file to an appropriate clinician for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) to address the current nature and severity of his service-connected allergic rhino sinusitis. The examination should be scheduled during a period of active infection and/or flare up. A copy of this remand must be made available to the examiner for review in conjunction with this examination. As it relates to the Veteran's service-connected allergic rhino sinusitis: (a.) First, provide the Veteran with a full and accurate description on the difference between an incapacitating versus and non-incapacitating episode, to include that incapacitating episodes require bed rest and treatment by a physician. (b.) Next, provide an accurate assessment of the current severity of the Veteran's service-connected chronic sinusitis. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner is reminded that the Veteran has provided competent statements and testimony as to the increased frequency and intensity of this sinusitis flare ups. 3. After completing the development noted above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an SSOC to the Veteran and his Representative. After they have had an adequate opportunity to respond, return the appeal to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.