Citation Nr: 21032895 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-19 413 DATE: May 28, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to October 17, 2019, for service-connected sinusitis is denied. Entitlement to a disability rating in excess of 50 percent on or after October 17, 2019, for service-connected sinusitis is denied. FINDINGS OF FACT 1. For the period on appeal prior to October 17, 2019, the Veteran's service-connected sinusitis resulted in, at most, three non-incapacitating episodes per year, characterized by headaches, pain, and purulent discharge or crusting. 2. From October 17, 2019, the Veteran's service-connected sinusitis resulted in near constant symptomology, characterized by headaches, pain, and purulent discharge or crusting after repeated surgeries. CONCLUSIONS OF LAW 1. For the period on appeal prior to October 17, 2019, the criteria for a disability rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6513. 2. The criteria for a rating in excess of 50 percent for sinusitis since October 17, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1990 to August 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018 and was remanded for additional development. The case is once again before the Board. The Veteran's April 2016 VA Form 9, Appeal to Board of Veterans' Appeals did not request a hearing. Later, in a February 2021 statement, the Veteran indicated that she would like a hearing. Subsequently, in April 2021, the Veteran submitted a statement withdrawing her hearing request. See April 2021 Hearing Request correspondence. Her hearing request is, therefore, considered withdrawn. 38 C.F.R. § 20.704(e). Increased rating for sinusitis The Veteran contends that her sinusitis symptoms are more severe than reflected by her disability rating. For the period on appeal, the Veteran's sinusitis has been rated 10 percent disabling prior to October 17, 2019, and 50 percent disabling thereafter. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where 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. 38 C.F.R. § 4.7. All forms of sinusitis are rated under the General Rating Formula for Sinusitis. Under the General Formula, a noncompensable or zero percent rating is assigned where sinusitis is detected by x-ray only. A 10 percent evaluation is assigned where there are 1 or 2 incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned where there are 3 or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Finally, a 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or when there is 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, DC 6513. The regulation defines an incapacitating episode as one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. Prior to October 17, 2019 As noted, the Veteran's sinusitis is assigned a 10 percent disability rating prior to October 17, 2009. For the reasons set forth below, the Board finds that a disability rating in excess of 10 percent is not warranted at any time prior to October 17, 2019. The Veteran was afforded a VA examination to determine the nature of her sinusitis in November 2011. During the examination, the Veteran reported that she has "sinus infections often" and the examiner reported that she experiences "episodes of sinusitis" that include headaches, pain, tenderness, and purulent discharge. It was noted that she experienced three non-incapacitating episodes of sinusitis during the past 12 months characterized by headaches, pain, and purulent discharge. There were no episodes of incapacitating sinusitis. In February 2013, the Veteran had a bilateral inferior turbinate reduction. The record also reflects that the Veteran underwent a nasal turbinate reduction in 1995 that resulted in "significant relief for several years." See a January 2013 VA treatment record. As documented below, although the Veteran has undergone repeated surgeries, the record does not indicate that she has experienced "near constant" sinusitis. Following the February 2013 surgery, outpatient treatment records from September 2013 document that the Veteran was treated for complaints of "throat irritation, drainage, nasal congestion" with sinus pressure that had been ongoing for a "couple weeks." She was noted to have tender frontal sinuses and diagnosed with acute sinusitis. Although the exact date is unclear, her symptoms appear to have resolved sometime between October 9, 2013 and November 15, 2013 when another physical examination did not reveal or document any sinus complaints. The Veteran was not seen again for sinus issues until February 14, 2014 when it was noted that she had sinusitis which onset a week prior and that it was already resolving. From there, the Veteran was treated again in September 2014 when she complained of a sore throat and sinus congestion. It was noted that this episode was "almost gone" on September 23, 2014. Again, it is unclear when her symptoms fully resolved, but a treatment record from October 21, 2014 documents an examination of her head and lungs and did not identify any sinus complaints. In January of 2015, the Veteran complained of nasal congestion, sinus pressure, and discolored phlegm which onset three days prior. She was diagnosed with acute sinusitis/bronchitis and her symptoms were noted to be "getting better" on February 12, 2015 and appear to have resolved prior to treatment in March 2015 when the Veteran was next examined by VA. There appears to have been no follow-up complaints until August 25, 2015 when the Veteran wished to discuss sinus drainage. The Veteran's treatment records from 2016 and 2017 paint a similar picture with documented complaints of sinus pain and drainage followed by treatment and a resolution of her symptoms for extended periods. See February 2015, August 2016, March 2017, and August 2017 treatment records. Treatment records from 2018 also do not contain evidence indicating a worsening of her symptoms. To summarize, the Veteran's medical records do not indicate that she experiences near constant sinusitis." Instead, the records indicate that she experiences episodes that resolve for several months following treatment. The record also does not indicate that she experiences more than six episodes of non-incapacitating sinusitis or that she has incapacitating episodes. As such, the preponderance of the evidence is against the application of a disability rating in excess of 10 percent prior to October 17, 2019. On and after October 17, 2019 At an October 17, 2019 VA examination, the Veteran reported frontal and maxillary sinus congestion once to twice per week, headaches three times per week, maxillary pain twice a week, purulent discharge every three months and nasal crusting every three months. The Veteran did not report any non-incapacitating or incapacitating episodes of sinusitis in the past 12 months. Diagnostic testing revealed thickening of the sinuses. The Veteran has been rated at 50 percent since October 17, 2019, the date the record demonstrated the increase in the Veteran's sinusitis disability. Her sinusitis is evaluated as 50 percent disabling, which is the maximum schedular rating available for this disability. See 38 C.F.R. § 4.97, DC 6513. There is no legal basis upon which to award a higher schedular rating. The Board has also considered whether higher evaluations are warranted under other diagnostic codes. However, the Veteran does not have any of the diseases of the nose and throat for which a higher evaluation is allowed, such as total laryngectomy, complete organic aphonia, stenosis of the larynx, or granulomatous rhinitis. Therefore, sinusitis has not shown to involve any other factor that would warrant evaluation of the disability under other provisions of the rating schedule. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.