Citation Nr: 21030349 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-02 383 DATE: May 18, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent for the service-connected chronic sinusitis, to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran is in receipt of the highest available schedular rating for chronic sinusitis. The evidence does not show such an exceptional chronic sinusitis disability picture that the available schedular evaluation is inadequate. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for chronic sinusitis, to include extraschedular consideration, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1981 to June 1984. In October 2019, he testified at a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In July 2020, the Board remanded this case for additional development, i.e., for the Veteran to undergo another VA examination, as the June 2016 examination was determined to be inadequate for rating purposes. That development has since been completed. Based on the results of a December 2020 VA examination, a January 2021 rating decision increased the evaluation for the Veteran's disability from noncompensable to a 50 percent rating effective February 11, 2016. [The Board notes that the Veteran was also assigned a separate 10 percent rating for rhinitis.] As the Veteran is currently in receipt of the maximum rating allowed for chronic sinusitis under the relevant diagnostic code, the main issue before the Board is whether the Veteran's chronic sinusitis warrants an extraschedular rating. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from service-connected disability; separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. The Veteran's chronic sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6513 for chronic maxillary sinusitis. The Board acknowledges that the Veteran is shown to have sinusitis that affects the maxillary and ethmoid sinuses. While a separate diagnostic code (DC 6511) is listed for ethmoid sinusitis, both maxillary and ethmoid sinusitis are evaluated under the same General Rating Formula for Sinusitis (DCs 6510-6514). Additionally, the Veteran's sinusitis symptoms are identified as chronic sinusitis detected only by imaging studies, near constant sinusitis, tenderness, sinus pressure, headaches, purulent discharge, and crusting. See December 2020 VA Examination Report. Under VA regulations, evaluation of the same disability or the same manifestations of disability under multiple diagnoses (pyramiding) is prohibited. 38 C.F.R. § 4.14. To do so would overcompensate the Veteran for his loss of earning capacity. See Brady v. Brown, 4 Vet. App. 203, 206 (1993). Specifically, the Veteran's chronic sinusitis symptomatology is not distinct and separate, thus an additional rating is not allowed for each sinus area affected. The General Rating Formula for Sinusitis provides ratings for sinusitis between zero and 50 percent. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. As the Veteran is in receipt of the highest schedular rating available for his chronic sinusitis, there is no basis to award a higher rating. However, the Board will consider whether a higher rating is warranted on an extraschedular basis. Extraschedular Consideration Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Executive Director of Compensation Service to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. At the December 2020 VA examination, the examiner indicated that the Veteran's disability had progressed or worsened. The Veteran reported symptoms such as daily headache pressure across the forehead; runny nose with nasal congestion; snoring; purulent drainage once or twice a week; and postnasal drip causing wheezing. The examiner noted the Veteran's symptoms as chronic sinusitis detected only by imaging studies, near constant sinusitis, tenderness, sinus pressure, headaches, purulent discharge, and crusting. It was noted that the Veteran had seven or more non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. However, he did not have incapacitating episodes of sinusitis requiring prolonged (four to six weeks) of antibiotics treatment in the past 12 months. He has also not had sinus surgery. No repeated sinus-related surgical procedures had been performed. The examiner noted that the Veteran's sinusitis impacts his ability to work. He explained that the Veteran is a mouth breather due to rhinitis and chronic sinusitis and that it causes reactive airway disease-type symptoms such as shortness of breath. The examiner remarked that the Veteran's allergic rhinitis had become chronic over time, leading to chronic sinusitis. Regarding the first Thun element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The General Rating Formula for Sinusitis, under which the Veteran's chronic sinus disability is evaluated, accounts for the symptoms or closely related symptoms that the Veteran described at both the Board hearing and the VA examination. Concerning the Veteran's complaints of difficulty breathing or shortness of breath due to obstruction of the nasal passage, the Board notes that the Veteran is already in receipt of a separate 10 percent rating for rhinitis, pursuant to Diagnostic Code 6522. In addition, the record does not indicate any marked interference with employment or frequent periods of hospitalization due to the Veteran's chronic sinusitis. Contrary to what the Veteran testified at the Board hearing, the VA examiner found that the Veteran had no incapacitating episodes of sinusitis requiring prolonged (four to six weeks) of antibiotics treatment in the past 12 months. The Veteran has also not presented any evidence to contradict the VA examiner's findings. For VA purposes, an incapacitating episode of sinusitis means one that requires bed rest and treatment prescribed by a physician. The Veteran's medical records do not reveal evidence of his chronic sinusitis requiring bed rest prescribed by a physician at any point during the appeal period. Thus, the Board finds that the Veteran's manifestations of sinusitis are reasonably contemplated by Diagnostic Code 6513 and the General Rating Formula for Sinusitis. The threshold issue under Thun is therefore not met, and further consideration of an extraschedular rating is not warranted. As the Veteran was already assigned the maximum schedular disability rating for his chronic sinusitis, and as an extraschedular rating is not warranted given the facts of this case, the claim for an initial rating in excess of 50 percent for chronic sinusitis, to include on an extraschedular basis, is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.