Citation Nr: 21032509 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-40 889 DATE: May 27, 2021 ORDER Entitlement to an initial rating higher than 10 percent for sinusitis is denied. Entitlement to a compensable initial rating for allergic rhinitis is denied. FINDINGS OF FACT 1. Throughout the claims period, the Veteran's sinusitis symptoms have not more nearly approximated incapacitating episodes or more than six non-incapacitating episodes per year of sinusitis. 2. Throughout the period of the claim, the Veteran's allergic rhinitis has not been manifested by or more nearly approximated polyps nor has it produced or more nearly approximated greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for sinusitis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.97, Diagnostic Code (DC) 6513. 2. The criteria for entitlement to an initial compensable rating for allergic rhinitis have not been met. 38 C.F.R. §§ 3.655, 4.97, DC 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1992 through October 1999. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, granted service connection for sinusitis and rhinitis, assigning a 10 percent and 0 percent evaluation respectively, effective August 3, 2006. The Veteran filed a Notice of Disagreement in June 2013, appealing the initial ratings assigned. A Statement of the Case was issued in October 2015 continuing the RO's rating assignments. The Veteran perfected his appeal in November 2015. These matters were remanded several times. Most recently, in November 2019, when the claims were remanded for additional evidentiary development and an addendum opinion by a VA examiner as to whether the Veteran's deviated septum could result in nasal blockage. In September 2020, the RO issued a supplemental statement of the case (SSOC) continuing the 10 percent disabling rating for sinusitis and 0 percent for allergic sinusitis. Higher Initial Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, [w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's sinusitis is rated under Diagnostic Code 6513. Diagnostic 6513, applicable to maxillary sinusitis is to be rated under the General Rating Formula for Sinusitis. The General Rating Formula for Sinusitis provides a 30 percent rating is assigned 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 50 percent rating 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 to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means an episode that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. Entitlement to a higher initial rating for sinusitis. Service connection for sinusitis was awarded in a March 2013 rating decision and was evaluated at 10 percent disabling. The Veteran contends that his symptoms of sinusitis warrant a higher rating. The Veteran's initial 10 percent evaluation was awarded under Diagnostic Code 6513 and the General Rating Formula for Sinusitis. Under the rating formula, a noncompensable evaluation is assigned when sinusitis is detected by X-ray only. A 10 percent rating is assigned 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 rating is assigned 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 rating 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. 38 C.F.R. § 4.97, Diagnostic Code 6513. For the following reasons, the Board finds that an initial 30 percent rating is warranted for the Veteran's sinusitis. The medical and lay evidence establish that the Veteran's sinusitis is productive of several episodes of non-incapacitating symptoms per year. The manifestations of these episodes include headaches, sinus pain, mucus-related symptoms, and congestion. A March 2007 VA examination report indicates that the Veteran had recently experienced three or four sinus infections within the last year and had been prescribed antibiotics. The examination revealed minimal swelling with no significant evidence of nasal obstruction. There were no nasal polyps or crusting present. The Veteran reported frequent sinus infections with nasal drainage and discharge. He reported using Claritin or Clarinex several times a week to control nasal stuffiness. The examiner also found no causal relationship between the Veteran's nasal septoplasty surgery in May 1997 and his current symptoms, as nasal septoplasty would have been performed to correct a deviation of the nasal septum, which is a mechanical problem as opposed to sinusitis, which is an inflammatory issue. In June 2008, the Veteran appeared at a hearing before a Decision Review Officer. He testified to having frequent sinus headaches, infections and discharge from his nose, which could be heavy at times. He stated that his nose feels blocked and he takes prescription medication three to four times a week, including a steroid. A December 2011 VA examination report indicates the examiner found there was no significant obstruction in either nose cavity and no nasal polyps or crusting present. He characterized the examination as essentially normal, noting the Veteran's symptoms appear to be under excellent control with medication. The Veteran reported continued nasal congestion and sinus infections. In a November 2014 examination report, the examiner indicated that the Veteran had tenderness of affected sinus, purulent discharge, and crusting. The examiner noted no nasal obstruction bilaterally. The Veteran reported that he occasionally blows out blood and still experiences nasal drainage and sinus congestion, for which he has been prescribed antibiotics at least four times. An April 2019 VA examination report notes the Veteran was experiencing headaches, sinus pain, tenderness and crusting. It also indicates the Veteran had four non-incapacitating episodes of sinusitis in the past twelve months, for which he was prescribed antibiotics. The examiner indicated that he did not observe nasal obstruction affecting over 50 percent of the nasal passage. The Veteran reported to the examiner that his primary care physician told him his condition was getting worse, and he would likely need surgery. In November 2019, these matters were remanded to obtain any outstanding medical evidence and an addendum opinion as to whether the Veteran's nasal septum deviation results in nasal obstruction. In a March 2020 addendum opinion, he stated that there is no nexus between the Veteran's deviated septum, for which he received septoplasty surgery in 1997 and his recurrent sinus symptoms. He explained that septoplasty is done for mechanical construction, whereas sinus infections are related to an inflammatory etiology. The above evidence reflects that the sinusitis symptoms have fluctuated during the lengthy appeal period, but there have not been incapacitating episodes as defined in the Note to the general rating formula, and there have not been more than six non-incapacitating episodes per year. In addition, there has not been radical surgery with chronic osteomyelitis, or purulent discharge or crusting after repeated surgeries. The preponderance of the evidence is therefore against a higher initial rating and the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to a higher initial rating for allergic rhinitis. The Veteran's allergic rhinitis is rated under 38 C.F.R. § 4.97, DC 6522. Under DC 6522, a 10 percent 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. A 30 percent is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. The Veteran underwent a VA examination in September 2008. At that time the examiner found no evidence of significant nasal obstruction or nasal polyps and there is no evidence that the Veteran reported polyps or nasal blockage when receiving treatment for his allergic rhinitis. December 2011, November 2014, June 2017, and August 2019 VA examinations similarly showed no obstruction or polyps. Thus, the preponderance of the evidence reflects that the Veteran's allergic rhinitis symptoms have not more nearly approximated the degree of obstruction or polyps required for a compensable rating. The benefit of the doubt doctrine is, therefore, not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Conclusion The Board has considered the Veteran's claims and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to these claims. 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). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.K. Donaldson, 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.