Citation Nr: 21031987 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-00 380 DATE: May 25, 2021 ORDER Prior to February 5, 2020, an initial compensable evaluation for chronic sinusitis is denied. Effective February 5, 2020, a 30 percent evaluation (but no higher) for sinusitis is granted. Prior to June 11, 2018, an initial rating in excess of 10 percent for allergic rhinitis is denied. Effective June 11, 2018, a rating of 30 percent (but no higher) for allergic rhinitis is granted. FINDINGS OF FACT 1. Prior to February 5, 2020, the Veteran's chronic sinusitis did not have any compensable symptoms. 2. Beginning February 5, 2020, the Veteran's chronic sinusitis has resulted in more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. It has not required radical surgery or been productive of near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent or crusting after repeated surgeries. 3. Prior to June 11, 2018, the Veteran's allergic rhinitis was not manifested by nasal polyps; rather, it only resulted in the complete obstruction of his right nasal passage. 4. Beginning June 11, 2018, the Veteran's allergic rhinitis has been manifested by nasal polyps. CONCLUSIONS OF LAW 1. Prior to February 5, 2020, the criteria for an initial compensable disability rating for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6513. 2. Beginning February 5, 2020, the criteria for a 30 percent disability rating (but no higher) for chronic sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6513. 3. Prior to June 11, 2018, the criteria for an initial disability rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6522. 4. Beginning June 11, 2018, the criteria for a 30 percent disability rating (but no higher) for allergic rhinitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1996 to November 2016. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection and assigned an initial noncompensable rating for the Veteran's service-connected sinusitis and a 10 percent disability rating for his service-connected allergic rhinitis. The Veteran contends that his sinusitis and allergic rhinitis disabilities warrant higher initial ratings. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. Concerning initial disability ratings, VA must consider the severity of disability for which the veteran is eligible for service connection starting on the date the application was filed. Id. Herein, the Board has considered the appropriateness of any assigned rating periods, as well as whether any additional staged rating periods are warranted. The RO has rated the Veteran's allergic rhinitis under the criteria found at 38 C.F.R. § 4.97, Diagnostic Code 6522, which provides that a 10 percent disability rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. For a 30 percent disability rating, the allergic or vasomotor rhinitis would be accompanied by polyps. A 30 percent disability rating is the highest rating available under this diagnostic code. Id. The Board notes that, in the February 2017 rating decision, in pertinent part, the RO granted the Veteran's claim seeking entitlement to service connection for migraine headaches. This condition has been separately rated 0 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. As noted, the rating criteria for Diagnostic Code 6513 pertaining to sinusitis specifically contemplate the functional impairment caused by sinus headaches. As the headache symptoms are already being separately compensated, to the extent possible, the Board will not consider headaches when evaluating the Veteran's sinusitis as pyramiding of symptoms is cautioned against in 38 C.F.R. § 4.14. See 38 U.S.C. § 1155; see also Esteban v. Brown, 6 Vet. App. 259 (1994). The Board, however, will not disturb the separate noncompensable disability rating assigned for migraine headaches in the interest of due process. Review of Medical Evidence Post-service VA treatment records show ongoing treatment for chronic sinusitis and allergic rhinitis, with use of medication to control the Veteran's symptoms. On VA examination in October 2016, a VA examiner noted that current ENT examination revealed no objective findings to support active sinus infection or inflammation. The examiner noted that the Veteran experienced an onset of symptoms in 2013 when he developed significant congestion through both nostrils. The examiner noted that the Veteran was previously found to have a nasal septal deviation and nasal polyps. The examiner reported that the Veteran had undergone a septoplasty and nasal polyp removal in 2014. The examiner noted that the Veteran's condition had improved postoperatively and that he was able to smell but that he had developed nosebleeds periodically and that his condition had worsened in the last six months. The Veteran reported that he was experiencing nosebleeds approximately two to four times a month and that he was using loratadine and Singulair daily and Flonase and steroid nasal rise every other day. The examiner diagnosed the Veteran as having sinusitis, rhinitis, and residuals of a (traumatic) deviated septum. However, the examiner opined that the Veteran did not currently have any findings, signs, or symptoms attributable to chronic sinusitis; did not have any non-incapacitating episodes of sinusitis characterized by headaches, pain, or purulent discharge or crusting in the past twelve months; and did not have an incapacitating episodes of sinusitis requiring prolonged antibiotics treatment in the past twelve months. The examiner further indicated that the Veteran's rhinitis did not result in a greater than 50% obstruction of the nasal passage on both sides but that he did have a complete obstruction in his right nasal passage. The examiner found that the Veteran did not have nasal polyps. Finally, the examiner noted that there was permanent hypertrophy of the nasal turbinates but that the Veteran did not have any granulomatous conditions. X-rays showed that the Veteran had normally developed sinuses with a mucoperiosteal thickening in the frontal and both ethmoid sinuses, as well as the superior and inferolateral aspects of both maxillary sinuses. The examiner provided an impression of post-inflammatory changes in frontal, ethmoid, and maxillary sinuses bilaterally, and no abnormality in the nasal bone. On VA examination in August 2017, a VA examiner noted that the Veteran had been diagnosed with allergic rhinitis in 2012 and chronic sinusitis in 2014. The examiner noted that the Veteran had previously endorsed a decreased sense of smell and some nasal congestion. The examiner noted that these conditions were improved with his septoplasty and polyp removal in 2014 (review of his chart demonstrated that he had functional sinus surgery including Draf III). The examiner noted that the Veteran denied having any residuals related to the surgery and that he currently endorses nasal congestion, dry nose, occasional loss of sense of smell, itchy/watery eyes, sneezing, and clear nasal discharge. The examiner noted the Veteran's report that his symptoms were worse during the spring-time, that he recently started allergy shots due to his continued allergy symptoms, and that he was currently using Flonase, Zyrtec, and Monetleukast. After interviewing the Veteran, the examiner reported that the Veteran had pansinusitis resulting in headaches and that he had experienced non-incapacitating headaches once during the past twelve months. The examiner indicated that the Veteran did not have any incapacitating episodes of sinusitis requiring prolonged antibiotic treatment over the past twelve months. The examiner reported that the Veteran's rhinitis did not result in a greater than 50% obstruction of the nasal passage on both sides or a complete obstruction on the left or right sides. The examiner noted that the Veteran did not have permanent hypertrophy of the nasal turbinates; did not have nasal polyps; and did not have any granulomatous conditions. The examiner indicated that the Veteran's septum was midline, he had mucosal edema in the nasal cavity, and he had normal sized turbinates. The examiner noted that a CT scan from June 2016 showed post- surgical changes, polypoid mucosal changes including obstruction of the frontal sinus overflow tract. The examiner concluded that the Veteran presented for the current examination with continued allergic rhinitis symptoms despite medical management and nasal surgery and that he now required allergy shots which indicated an increase in the severity of that condition. The examiner also concluded that the Veteran did not have residuals to his prior sinus surgery and that his current sinusitis was under control, with no increase in severity. A Radiologist's Report shows that the Veteran was afforded a CT scan of his sinus on June 11, 2018 at Camp Pendleton. At that time, the Veteran was evaluated for "recurrent nasal polyps not responding to medical treatment." Findings included: postsurgical changes at the sinuses consistent with fundal endoscopic sinus surgery; left middle turbinate is absent; bilateral medial antrostomy; uncinate processes are absent; partial resection at the interfrontal bony septum, suspect Draf III; mild hyperostosis at the ethmoid sinuses; no bony erosion; lamina papyracea are maintained. Regarding the right sinus and drainage pathways, the CT scan revealed likely postsurgical changes at the frontal recess; lobular mucosal thickening at the frontal recess posterior wall that may represent polyps (though grossly patent); and dural sinuses that are otherwise grossly clear; mild lobular costal thickening of the inferior wall of the right maxillary sinus and postsurgical changes medical antrostomy; opacification of several frontal ethmoid sinuses with the lobular opacities maybe representing polyps; a surgically absent ostiomeatal complex; a patent sphenoethmoidal recess; and a normal sphenoid sinus. Regarding the left sinus and drainage pathways, the CT scan revealed postsurgical changes at the fontal recess; partial opacification however grossly patent; postsurgical changes at the medial antrostomy; small air-fluid level within the left maxillary sinus posterior wall; circumferential lobular mucosal thickening a the maxillary sinus; postsurgical changes at the left posterior ethmoidectomy; opacification of a few frontal ethmoid air cells; a surgically absent ostiomeatal complex; a patent sphenoethmoidal recess; and a normal sphenoid sinus. The nasal cavity had a lobular appearance of the posterior nasopharyngeal wall representing polyposis. The impression provided was "postsurgical changes bilateral medial antrostomy and left middle turbinectomy and sinus disease to involve bilateral ethmoid, frontal recess and bilateral maxillary sinuses; findings which may represent Sinonasal polyps." The Veteran's primary care physician (PCP) at Camp Pendleton evaluated the Veteran on February 5, 2020. The PCP diagnosed the Veteran as having chronic sinusitis, allergic rhinitis, and residuals of a traumatic deviated nasal septum. Physical examination revealed recurrent polypoid disease with continuing crusting, nose bleeds, as well as milky drainage. The examiner diagnosed the Veteran as having pansinusitis affecting his maxillary, frontal, ethmoid, and sphenoid sinuses. She noted that his chronic sinusitis was characterized by monthly episodes (3-4 times per month) of near constant sinusitis, headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting more than three times per month. The examiner reported that the Veteran had experienced non-incapacitating episodes of sinusitis seven or more times in the past twelve months but that he had not had any incapacitating episodes of sinusitis requiring prolonged use of antibiotics in the past twelve months. The examiner further noted that the Veteran's rhinitis did not result in a greater than 50% obstruction of the nasal passage on both sides or complete obstruction on the left or right sides. The examiner indicated that the Veteran did not have any granulomatous conditions. The examiner found that the Veteran currently had nasal polyps and permanent hypertrophy of the nasal turbinates. Chronic Sinusitis Based on a review of the objective medical evidence, with due consideration given to the Veteran's statements and hearing testimony of record, the Board finds that from December 1, 2016 to February 5, 2020, the Veteran's sinusitis symptoms most closely resembled the criteria for a noncompensable disability rating. Prior to February 5, 2020, the Veteran did not have any compensable symptoms as his chronic sinusitis, detected by x-ray, did not result in 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. Therefore, the Veteran's claim for an initial compensable rating for service-connected chronic sinusitis remains denied. Nevertheless, beginning February 5, 2020, the record reflects that the Veteran's chronic sinusitis resulted in more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. See February 5, 2020 PCP Report (noting that the Veteran had experienced non-incapacitating episodes of sinusitis seven or more times in the past twelve months). Thus, affording the Veteran the benefit of the doubt, the Board finds that the Veteran's symptoms warrant a 30 percent rating, effective February 5, 2020, the date when the evidence of record first showed an objective increase in the severity of his service-connected disability. See 38 C.F.R. § 4.97, Diagnostic Code 6513. At no time during the appeal period has the Veteran's service-connected chronic sinusitis reached the level of severity to warrant a rating in excess of 30 percent. Significantly, the Veteran has not undergone radical surgery with chronic osteomyelitis. Further, while the Veteran's PCP found on evaluation that he had "near constant" sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting, the Board notes that these symptoms were not linked to repeated surgeries, which is one of the requirements for the 50 percent (maximum) schedular rating available under the General Rating Formula. See 38 C.F.R. § 4.97, Diagnostic Code 6513. Accordingly, the Board finds no basis upon which to grant a rating in excess of 30 percent at any time during the appeal period. Allergic Rhinitis Based on a review of the objective medical evidence, with due consideration given to the Veteran's statements and hearing testimony of record, the Board finds that from December 1, 2016 to June 11, 2018, the Veteran's allergic rhinitis symptoms most closely resembled the criteria for a 10 percent disability rating based on having rhinitis without polyps but having complete obstruction of his right nasal passage. Prior to June 11, 2018, the Veteran's allergic rhinitis was simply not manifested by nasal polyps. That said, beginning June 11, 2018, the Veteran's allergic rhinitis symptoms included what appeared to be polyps. Subsequent evaluation by the Veteran's PCP in February 2020 confirmed that the Veteran's allergic rhinitis included recurrent polyps as one of his primary symptoms. Thus, affording the Veteran the benefit of the doubt, the Board finds that the Veteran's symptoms warrant a 30 percent rating, effective June 11, 2018, the date when the evidence of record first showed an objective increase in the severity of his service-connected disability. See 38 C.F.R. § 4.97, Diagnostic Code 6522. The Board notes that this is the maximum schedular rating available under Diagnostic Code 6522. Other Considerations The Board observes that the Veteran is already being compensated for having a complete obstruction of his right nasal passage. Therefore, it would be inappropriate for the Board to grant a separate 10 percent rating under 38 C.F.R. § 4.97, Diagnostic Code 6502 (which awards a 10 percent rating for traumatic residuals of a deviated nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side). See 38 U.S.C. § 1155; see also Esteban, 6 Vet. App. 259. The Board notes that the Veteran has not raised any other issues with respect to his claims on appeal, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment records and examination reports, lay statements, and Board hearing testimony, shows that the Veteran remains employed. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.