Citation Nr: 21039737 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-02 689 DATE: July 1, 2021 ORDER Entitlement to an initial 30 percent rating for chronic sinusitis is granted. FINDING OF FACT For the entire appeal period, the evidence is in equipoise as to whether the Veteran has more than six non-incapacitating episodes per year of sinusitis, characterized by headaches, pain, and purulent discharge or crusting. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for an initial 30 percent rating for chronic sinusitis have been met. 38 U.S.C. §§ 1101, 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.27, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The matter comes on appeal from a February 2016 rating decision. The Board remanded the appeal in April 2019 to obtain outstanding private treatment records and for an updated VA examination. The requested development has been completed and the case is once again before the Board. Entitlement to an initial rating in excess of 10 percent rating for chronic sinusitis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6511. The General Rating Formula for Sinusitis provides for a maximum 50 percent rating following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, tenderness of affected sinusitis, and purulent discharge or crusting after repeated surgeries; a 30 percent rating for three or more incapacitating episodes per year of sinusitis requiring prolonged (4-6 weeks or more) antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; a lower 10 percent rating is warranted where there has been one or two incapacitating episodes or three to six non-incapacitating episodes as described by the 30 percent criteria; and a noncompensable rating is assigned where sinusitis has been detected by x-ray only. Incapacitating episodes of sinusitis are ones that requires bed rest and treatment by a physician. The Board finds that the evidence is at least in equipoise as to whether the Veteran has more than six non-incapacitating episodes per year of sinusitis, characterized by headaches, pain, and purulent discharge or crusting under Diagnostic Code 6511. A December 2015 VA examination indicates that the Veteran's diagnosis of chronic sinusitis was manifested by headaches, pain and tenderness of affected sinus, purulent discharge or crusting, four non-incapacitating episodes in the past 12 months, and one incapacitating episode of sinusitis in the past 12 months. Since then, private treatment records showed worsening symptomatology of service-connected chronic sinusitis. In April 2016 the Veteran reported having more frequent sinus infections and he just completed a third round of antibiotics. In June 2016 the Veteran reported he just got over a sinus infection which caused nose bleeds. In July 2016, the Veteran reported having received antibiotics four times over the last year. In January 2017, the Veteran reported getting sinus infections more than four times a year and having sinus problems with pressure, pain, and cannot breathe or sleep. The Veteran had endoscopic sinus surgery in surgery in July 2017, a bilateral ablation of nasal swell body lesions. While post-operative notes show that surgery improved his breathing, the Veteran continued to have recurrent sinus infections shown in private treatment records dated in 2017 and 2018. While most episodes of sinusitis were treated with antibiotics, during the course of treatment in September 2017, the Veteran also made reference to episodes of sinusitis which resolved without treatment. A February 2020 VA examination shows that the Veteran reported that his last episode of sinusitis was in December 2019. He was prescribed oxicodone for constant pressure, and was also treated with a neti pot, Flonase, loratadine with pseudoephedrine, and nasal saline daily. The VA examiner found that the Veteran had chronic sinusitis with episodes of sinusitis, headaches, sinus pain and tenderness, purulent discharge, and crusting with four non-incapacitating episodes in last 12 months and no incapacitating episodes. The Board finds that the February 2020 VA findings are probative as they were based on examination and interview of the Veteran. While VA examinations indicate that the Veteran had four non-incapacitating episodes of sinusitis a year, an August 2020 letter from Dr. W.D. at Bolivar Family Care Center, shows that the Veteran had more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge. He noted that the Veteran was under his care and had a diagnosis of chronic sinusitis. Because Dr. W.D. is the Veteran's treating physician, the Board finds that he is familiar with the Veteran's medical history and treatment. Thus, the Board finds that the August 2020 opinion is also very probative. As such, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran has more than six non-incapacitating episodes per year of sinusitis, characterized by headaches, pain, and purulent discharge or crusting to warrant a higher 30 percent rating under Diagnostic Code 6511. The Board finds that the next higher 50 percent rating is not warranted. While the Veteran did have surgery during the appeal period, the record does not identify radical surgery with chronic osteomyelitis at any time. Private treatment records identify chronic sinusitis with recurrent episodes, but do not show that the Veteran had near constant sinusitis. February 2020 VA examination also indicates that the Veteran had episodes of sinusitis but did not have near constant sinusitis. Thus, the Board finds that the Veteran's sinusitis did not more nearly approximate the criteria for a 50 percent rating under Diagnostic Code 6511. For the reasons discussed, the Board finds that a higher initial 30 percent rating for chronic sinusitis is warranted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.