Citation Nr: 21031800 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-30 956A DATE: May 24, 2021 ORDER Entitlement to an increased rating of 50 percent disabling for sinusitis with headaches from May 16, 2007 to August 20, 2015 is granted. Entitlement to an increased rating in excess of 50 percent disabling for sinusitis with headaches from August 20, 2015 and thereafter is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for a scar of the right parietal area of the scalp is remanded. Entitlement to a disability rating in excess of 10 percent for burn scars of the buttocks is remanded. Entitlement to a compensable rating for a burn scar of the left elbow, left groin and left scrotum is remanded. Entitlement to an initial compensable rating for residuals of traumatic brain injury (TBI) is remanded. Entitlement to an increased rating for fracture residuals of the right zygoma, infraorbital rim, with deviated nasal septum is remanded. FINDINGS OF FACT 1. Throughout the appeal period prior to August 20, 2015, the Veteran's sinusitis has been manifested by near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries; however, he has not had radical surgery with chronic osteomyelitis. 2. From August 20, 2015 and thereafter, the Veteran's sinusitis with headaches is rated as 50 percent disabling, which is the maximum schedular evaluation authorized under Diagnostic Code 6510. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 50 percent disabling, for sinusitis with headaches from May 16, 2007 to August 20, 2015, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6510. 2. The criteria for an increased rating, in excess of 50 percent disabling, for sinusitis with headaches from August 20, 2015 and thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1968 and from November 1968 to March 1973. The Veteran served in the Republic of Vietnam and has been awarded the Army Commendation Medal for Valor and is a recipient of the Purple Heart. These matters come before the Board of Veterans' Appeals (Board) on appeal of December 2008 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In October 2013, the Veteran testified at a hearing conducted by a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing has been associated with the claims file. The Veteran was notified that he was entitled to another hearing in light of the fact that the VLJ who had conducted his Board hearing was no longer with the Board. 38 U.S.C. § 7107(c). In August 2020, the Veteran elected a virtual tele-hearing. That hearing took place in April 2021 and a transcript of the hearing before the undersigned VLJ is of record. In October 2014, the Board remanded the issues on appeal for further development. 1. Entitlement to a disability rating in excess of 30 percent for sinusitis with headaches prior to August 20, 2015. The Veteran's sinusitis with headaches is rated under DC 6510. Under DC 6510, a noncompensable evaluation is warranted for 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 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 maximum 50 percent evaluation 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. Initially, the Board notes that the use of the word "and" indicates that the criteria are conjunctive. In other words, all symptoms must be present to warrant the applicable rating. Where one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment is not present to warrant a 10 percent rating, the Veteran must have: three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Where radical surgery with chronic osteomyelitis is not present to warrant a 50 percent rating, the Veteran must have: near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. After review of all the pertinent evidence of record, the Board finds that the medical or lay evidence of record establishes that the Veteran has experienced near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, or purulent discharge or crusting after repeated surgeries. In a September 2007 VA examination, the examiner noted He describes his sinus problems as being constant. During the sinusitis episodes, he is incapacitated as often as 7 time(s) per week, and each incident lasts for 7 day(s). He experiences headaches with his sinus episodes. Antibiotic treatment lasting 4-6 weeks is needed for his sinusitis. He reports interference with breathing through the nose, purulent discharge from the nose, hoarseness of the voice, pain, crusting and bleeding and headaches Specifically, all the time. The claimant required reconstruction surgery of his sinuses after the helicopter crash. From the above condition the functional impairment is that claimant has severe headaches and right eye pain. Upon physical examination, the VA examiner documented the following clinical findings: Examination of the nose reveals nasal obstruction and the percentage of obstruction in the right nostril is 80 % and in the left it is 40 %. Nose examination reveals deviated septum on the left. There are nasal polyps present on the left. Nose examination does not reveal loss of part of the nose, loss of part of the ala, a scar and obvious disfigurement. There is rhinitis present and it is believed to be bacterial in origin because of white discharge. Examination shows sinusitis present at frontal area with tenderness. There is purulent discharge from the nose noted. In October 2008, the Veteran was afforded another VA examination. On examination, the examiner noted that the Veteran had maxillary sinusitis with symptoms of headaches; pain of affected sinus; tenderness of affected sinus; purulent discharge; and crusting. The Veteran reported near constant non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting in past 12 months. He reported four or more incapacitating episodes of sinusitis requiring prolonged of antibiotics treatment in past 12 months. The Veteran had several sinus surgeries, but none were noted to be radical surgeries. A May 2014 CT scan indicated Changes of mild to moderate chronic sinus inflammatory change. Greatest involvement of the left maxillary sinus. These changes are worse...Much lesser changes are present in the right maxillary sinus with minimal mucosal thickening in the right anterior sphenoid sinus. Suggestion of previous paranasal sinus surgery with nasal antral windows noted. In August 2015, the Veteran was afforded another VA examination. On examination, the examiner noted that the Veteran had chronic sinusitis with symptoms of headaches; pain of affected sinus; tenderness of affected sinus; purulent discharge; and crusting. The Veteran reported near constant non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting in past 12 months. He reported three or more incapacitating episodes of sinusitis requiring prolonged of antibiotics treatment in past 12 months. The Veteran had several sinus surgeries, but none were noted to be radical surgeries. Based on the foregoing, the Board find that the evidence of record does not show radical surgery with chronic osteomyelitis, but does show near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. The evidence shows that the Veteran underwent several sinus surgical procedures. As a consequence, the evidence of record supports the award of a 50 percent disability rating during this time frame. Therefore, entitlement to a rating greater than 50 percent from May 16, 2007 to August 20, 2015 is warranted. 2. Entitlement to a disability rating in excess of 50 percent for sinusitis with headaches from August 20, 2015. The Veteran's sinusitis with headaches is rated under DC 6510. In a January 2021 rating decision, the RO granted an increased rating of 50 percent disabling for sinusitis with headaches, effective August 20, 2015. The highest possible schedular rating for sinusitis is 50 percent for 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; it is not possible for the Veteran to receive a higher rating under DC 6260. 38 C.F.R. § 4.87, DC 6260, Note (2). See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the Veteran already has this maximum 50 percent schedular disability rating for sinusitis with headaches, his claim for a higher rating for this condition is denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for a scar of the right parietal area of the scalp is remanded. 2. Entitlement to a disability rating in excess of 10 percent for burn scars of the buttocks is remanded. 3. Entitlement to a compensable rating for a burn scar of the left elbow, left groin and left scrotum is remanded. The Veteran was afforded a VA examination addressing his increased rating claims in August 2015. Subsequent to that examination, the Veteran indicated that his condition has worsened. Specifically, he testified that his scars are painful and result in functional loss with an inability to do activities of daily living. See April 2021 Board Hearing transcript. To ensure that the evidence of record reflects the current severity of the Veteran's service-connected scars, a more contemporaneous examination is warranted. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (VA is obligated to provide a new examination when a Veteran asserts that the service-connected condition has become more severe). Accordingly, the RO should arrange for the Veteran to undergo VA examinations to assess the current severity of his scar disabilities and all resultant functional limitations. 4. Entitlement to an initial compensable rating for residuals of TBI. The Veteran was afforded a VA examination addressing his initial service connection claim in February 2010. Subsequent to that examination and the award of service connection, the Veteran indicated that his condition has worsened. Specifically, he testified that he is having increasing headaches and seizures related to his service-connected residuals of TBI. scars behind his ears are painful and continuously itch. See Board Hearing transcript. In a November 2009 treatment note, the treating neurologist noted that the Veteran had a "bona fide seizure disorder," but did not attribute the disorder to his service-connected residuals of TBI. In a February 2010 neuropsychology note, the examining noted that While the Veteran may have suffered a traumatic brain injury when his helicopter crashed in 1967, he also suffers from severe PTSD. Following mild TBI (which was most likely in this case given the history), in virtually all cases, with a relatively few exceptions (such as subsequent bleeds, infections) any cognitive-behavioral deficits are typically most pronounced immediately r very shortly following the trauma and then gradually diminish, if not completely resolve, usually within the first several months. One notable exception is seizures which may have a very delayed onset. Although the possibility can never be totally discounted, because the veteran reportedly continued to function fairly well, at least from a cognitive standpoint for years following the trauma it does not appear likely that there are any significant cognitive-behavioral effects of the TBI. On the other hand, it seems at least as likely as not that his (history) of seizures or seizure-like attacks could be the result of his head injury. Given the evidence of a seizure disorder, which may be related to the Veteran's TBI, the Board finds that a more contemporaneous examination which evaluates the current severity of the Veteran's TBI is warranted. Finally, as the Veteran is also service-connected for PTSD, the VA examiner should distinguish between the symptoms of PTSD and TBI with posttraumatic headaches and seizures, if possible. 5. Entitlement to a compensable rating for fracture residuals of the right zygoma, infraorbital rim, with deviated nasal septum is remanded. The Veteran was afforded a VA examination addressing his increased rating claim in August 2015. Subsequent to that examination, the Veteran indicated that his condition has worsened. Specifically, he testified that he is having increasing headaches related to his fracture residuals. See Board Hearing transcript. To ensure that the evidence of record reflects the current severity of the Veteran's service-connected fracture residuals of the right zygoma, infraorbital rim, with deviated nasal septum, a more contemporaneous examination is warranted. Accordingly, the RO should arrange for the Veteran to undergo a VA examination to assess the current severity of his disability and all resultant functional limitations. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his scars. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The claims file must be made available to and reviewed by the examiners prior to the requested study and the examination report should reflect that such a review was made. The examination should, as warranted, address all symptoms and functional limitations. The examiner should specifically address the Veteran's report that his groin scar causes genitourinary symptoms such as incontinence. A complete rationale should be given for all opinions and conclusions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 3. Schedule the Veteran for a VA TBI examination conducted be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon) to determine the nature and severity of service connected TBI residuals, to include any associated headache and/or seizure disorders. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The claims file must be made available to and reviewed by the examiners prior to the requested study and the examination report should reflect that such a review was made. If the examiner finds headaches and/or seizures attributable to the Veteran's service-connected TBI, the examiner should comment upon the frequency and severity of such headaches. In addition, the examiner should differentiate the Veteran's TBI residuals from his PTSD symptoms. If the examiner is unable to distinguish the symptomatology, the examiner should indicate the reasons why with supporting rationale. The examiner should provide information relating to all facets used to rate TBI residuals. A complete rationale should be given for all opinions and conclusions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 4. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his right zygoma fracture residuals. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The claims file must be made available to and reviewed by the examiners prior to the requested study and the examination report should reflect that such a review was made. The examiner should fully describe the impact of the Veteran's residuals of a fracture of the right zygoma with deviated septum on his daily and occupational functioning. The examiner should report whether the Veteran's right zygoma fracture has resulted in disfigurement, pain, and headaches, and if so, to what degree. If objective evidence of pain is shown, the examiner should state whether the right cheek disorder causes weakened movement, excess fatigability, and incoordination. If the examiner finds headaches attributable to the Veteran's service-connected right zygoma fracture, the examiner should comment upon the frequency and severity of such headaches. The examiner is also asked to determine whether the Veteran's residuals of right zygoma fracture has resulted in any cranial nerve impairment, and, if so, the degree of impairment. A complete rationale should be given for all opinions and conclusions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims on appeal must be readjudicated. If any of the benefits on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.