Citation Nr: 21032070 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-28 576 DATE: May 25, 2021 ORDER The appeal seeking a rating higher than 50 percent for sinusitis is dismissed. An effective date of November 21, 2012, for a 50 percent rating for sinusitis is granted. REMANDED A compensable rating for Traumatic Brain Injury (TBI) is remanded. A compensable rating for headaches associated with TBI is remanded. A rating higher than 50 percent for posttraumatic stress disorder (PTSD) is remanded. Service connection for a dental condition/loss of teeth is remanded. FINDINGS OF FACT 1. In a February 2020 hearing before the undersigned Veterans' Law Judge, the Veteran requested to withdraw from appellate status the claim for a rating higher than 50 percent for sinusitis. 2. Resolving any reasonable doubt in favor of the Veteran, as of his November 21, 2012, claim he had near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for a rating higher than 50 percent for sinusitis are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 2. The criteria for an effective date of November 21, 2012, for a 50 percent rating for sinusitis are met. 38 U.S.C. § 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to September 1976. The Veteran testified before the undersigned Veterans Law Judge at a hearing in February 2020; a copy of the transcript is of record. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Sinusitis In his February 2020 hearing, the Veteran's representative stated that the Veteran wished to withdraw his request for a rating higher than 50 percent for sinusitis and did not wish to pursue any further appellate action regarding the aforementioned issue. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45 (2011). As such, there remains no allegation of error of fact or law for the Board to address regarding the Veteran's claim for a rating higher than 50 percent for sinusitis. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. Earlier Effective Date The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). Sinusitis The Veteran was granted service connection for sinusitis as of his November 21, 2012, claim at a noncompensable (0%) rate under DC 6513. His rating was increased to 50 percent as of a May 20, 2017, VA examination. DC 6513 provides a 50 percent rating for sinusitis 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 30 percent rating 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 10 percent rating is provided 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. After review of the record, the Board finds that the 50 percent rating for the Veteran's sinusitis is warranted as of his November 21, 2012, filing of his claim. The Veteran's 2017 VA examination specifically reported that the Veteran had undergone a CT scan in 2009 which showed traumatic changes of his left maxillary sinus and mild mucoperiosteal thickening in the left maxillary sinus. The examiner found that the Veteran had near constant sinusitis which included pain, headaches, tenderness, and purulent discharge. The Veteran reported these symptoms had persisted since his in-service injury and that he had undergone multiple surgeries after his in-service injury to repair his face and sinus area. Based on the Veteran's credible testimony and the 2009 CT scan which showed damage to the Veteran's left maxillary sinus, the Board finds that the 50 percent rating for the Veteran's sinusitis is warranted as of his November 21, 2012, grant of service connection. There is no evidence which discredits the Veteran's report of persistent sinusitis symptoms as of his 2012 claim for service connection. The Board does note a 2013 VA examination which diagnosed the Veteran with rhinitis and did not find any sinusitis symptoms. However, as the examiner did not note or review the 2009 diagnostic film associated which cleared showed traumatic injury to the Veteran's left maxillary sinus or take into consideration the Veteran's 2009 diagnosis of sinusitis, the Board does not afford that examination any probative weight. Resolving any reasonable doubt in favor of the Veteran, the Board finds that a November 21, 2012, effective date for the 50 percent rating for the Veteran's sinusitis is warranted. REASONS FOR REMAND TBI Headaches PTSD The Veteran's last VA examination regarding his TBI and Headaches was in 2017. The Veteran testified in his 2020 hearing that his symptoms had increased in severity. More contemporaneous examinations are warranted. The Veteran's last PTSD examination was in 2019. However, his 2020 hearing testimony indicated that his symptom had increased in severity from what is reflected in the 2019 examination. The Board finds that a new examination is warranted. Loss of Teeth In his February 2020 hearing, the Veteran discussed his in-service accident and the resulting loss of his teeth. The examination performed in 2017 did not have benefit of the Veteran's testimony regarding his in-service accident and resulting damage to his teeth. As such, the Board finds a new examination is warranted. The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the severity of the Veteran's TBI residuals, including headaches. All necessary tests and studies should be accomplished. If it is determined that more than one type of examination is needed to properly evaluate the Veteran's TBI residuals such additional examination(s) should be scheduled. Following examination and review of the claims file, it should be specifically indicated whether any cognitive and physical dysfunctions are present as a result of the TBI. For any subjective symptoms that are residuals of TBI, the examiner should also address the extent to which such symptoms interfere with work, instrumental activities of daily living, or work, family, or close relationships. Regarding the Veteran's headaches, the examiner should elicit a full history from the Veteran concerning his headache symptomatology, including: the type and frequency of headaches, whether they included characteristic prostrating attacks, and whether they were productive of severe economic inadaptability. The examiner should discuss the Veteran's lay statements, including his February 2020 testimony, regarding any symptoms he has experienced relating to his TBI and headaches. The rationale for all opinions offered should be provided. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD. 3. Schedule the Veteran for an examination by a dentist to determine the nature and etiology of the loss of his teeth. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's loss of teeth was incurred in, or due to, the Veteran's service, specifically to include the Veteran's in-service facial/jaw injury. The Veteran's lay statements regarding onset and continuity of symptomology, specifically his February 2020 hearing testimony, should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.