Citation Nr: 21039822 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-10 939 DATE: July 1, 2021 ORDER Entitlement to an increased, 30 percent rating, but no higher, for sinusitis from October 30, 2018, but no earlier, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. From October 14, 2011 until October 30, 2018, symptoms of the Veteran's sinusitis have most nearly approximated six or less non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting; incapacitating episodes are not indicated. 2. From October 30, 2018, symptoms of the Veteran's sinusitis have most nearly approximated more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting; multiple surgeries or single radical surgery with chronic osteomyelitis are not indicated. CONCLUSIONS OF LAW 1. From October 14, 2010 until October 30, 2018, inclusive of the one year look back period for an increased rating claim, the criteria for a rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1-4.7, 4.10, 4.97, Diagnostic Code (DC) 6513. 2. From October 30, 2018, the criteria for a rating of 30 percent, but no higher, for sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1-4.7, 4.10, 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to September 2003 and earned a Combat Action Ribbon for participation in Operation Iraqi Freedom. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 Regional Office (RO) rating decision that, in relevant part, denied a rating in excess of 10 percent for service-connected sinusitis. In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In October 2019, the Board, in relevant part, remanded this claim for additional development, and it has returned to the Board for review. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claim is also subject to the October 2019 Board remand. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). For remand development, the agency of original jurisdiction (AOJ) sent the Veteran a December 2019 letter requesting that he identify all healthcare providers providing sinusitis treatment since 2016, in particular, the provider furnishing the 2016 sinus surgery and complete private medical record release authorizations. He was also informed that he could directly submit private medical records to VA. He did not respond to this notice. The AOJ obtained VA treatment records through December 2019. The Veteran was afforded a January 2020 VA-contract sinusitis examination that was responsive to the pertinent rating criteria for sinusitis. In the May 2021 brief, the representative noted that the 2016 sinus surgery medical records were not available and requested a remand unless the record showed that the 2016 surgery had no effect on the claim. Updated VA treatment records and the January 2020 VA-contract examination summarize the Veteran's service-connected sinusitis symptoms before and following the 2016 sinus surgery. The above December 2019 development letter substantially complies with the remand instructions for requesting the private medical records at issue. In sum, the Veteran was specifically instructed about how to submit the outstanding 2016 private medical records concerning the sinus surgery and declined to do so. He has not provided any report requesting additional time or that he is in the process of locating these private medical records to warrant further delay. With this background, the AOJ made reasonable efforts to obtain the private medical records concerning the 2016 sinus surgery and substantially complied with the October 2019 Board remand. Id.; 38 C.F.R. § 3.159(c)(1). Based on the above, appellate adjudication for this claim may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Entitlement to an increased rating for sinusitis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). 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. § 4.3. The Veteran is service-connected for sinusitis with assigned ratings under DC 6513. 38 C.F.R. § 4.97, DCs 6513. He currently has the following ratings for service-connected sinusitis: 10 percent from October 14, 2011 (date of increased rating claim); and 30 percent from January 30, 2020. Sinusitis is rated according to the General Rating Formula for Sinusitis (General Rating Formula). Under the General Rating Formula, the following ratings apply: 10 percent rating is warranted for one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting; 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; and a 50 percent rating is warranted for chronic sinusitis following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, DC 6513 A note accompanying DC 6513 states that an incapacitating episode is defined as one requiring bed rest and treatment by a physician. The Veteran filed an increased rating claim for sinusitis on October 14, 2011. Thus, the pertinent evidentiary period begins October 14, 2010, to include the one year look back period for increased rating claims. 38 C.F.R. § 3.400(o). November 2010 private medical records showed that the Veteran complained about a left sided headache lasting one month. For the past two weeks, he had upper respiratory symptoms to include runny nose, stuffy nose, headache, sinus pressure, and postnasal drip, among others. He was currently using Claritin and Flonase for treatment. Ear, nose and throat (ENT) clinical evaluation showed tender sinuses, postnasal drip and nasal mucosa congestion as well as ear redness and fluid. The clinician ordered a computerized tomography (CT) scan to rule out sinusitis, antibiotics for otitis and using Allegra and Flonase for allergies. The following November 2010 CT sinus scan showed mucous membrane thickening of the sinuses that ranged from minimal to severe. March 2011 private medical records reflected that the Veteran had sinus congestion with nasal drainage. The additional handwritten notes are partially illegible but appear to reference body aches. Respiratory review was positive for nasal and chest congestion. The clinician assessed acute sinusitis and although not entirely clear from the handwriting, appeared to prescribe Augmentin with 20 pills. June 2011 private medical records referenced a four day history of symptoms including runny nose, sinus pain and drainage among others. Clinical evaluation was notable for mucosal edema. The clinician assessed acute sinusitis and although not entirely clear from the handwriting appears to prescribe Amoxil. August 1, 2011 private medical records showed that the Veteran had a three day history of earache, sore throat, migraines, and neck pain. The clinician assessed acute otalgia and sinusitis. He prescribed Bactrim. The amount is illegible. August 15, 2011 private medical records noted complaints of upper respiratory symptoms for the past two weeks. Current medication list did not include an antibiotic. However, the clinician noted that the Veteran was also recently treated with antibiotics following cord in chest, deep tissue pain affecting the right side of the neck and severe migraine. Clinical evaluation showed nontender sinus, postnasal drip and nasal mucosa congestion. The clinician assessed allergic rhinitis, acute sinusitis, otitis media, among other disorders. He recommended a treatment regimen for allergic rhinitis. On October 14, 2011, the Veteran filed an increased rating claim for sinusitis. In May 2012, the Veteran reported that he had chronic sinusitis since service. During active episodes, he was unable to work or even drive. He constantly took sudafed and avoided allergens as preventative measures. He was unable to tolerate smoky environments. Since he had originally filed his claim, the disorder had become more common and problematic. He had submitted all private medical records. In July 2013, Dr. D completed a Disability Benefits Questionnaire (DBQ) for the Veteran. He diagnosed chronic sinusitis and allergic rhinitis. The symptoms started during military service and were progressively worsening. Dr. D reported maxillary and frontal sinusitis with accompanying symptoms of sinusitis episodes and headaches. He described it as recurrent acute sinusitis flare-up with headache. He reported that the Veteran had two non-incapacitating episodes per year and no incapacitating episodes. The Veteran did not have any history for sinus surgery. Dr. D stated that the ENT symptoms would not affect the Veteran's ability to work. January 2016 private medical records showed that the Veteran sought an evaluation for possible sinus polyp. In pertinent part, he was currently diagnosed with an upper respiratory infection. He had a week-long course of Ciprofloxacin and Zithromax (Z-Pak) that had been discontinued. The clinician stated that the current symptoms were likely viral and should improve. If no improvement occurred within a week, antibiotics may be needed. February 2016 private medical records reflected a bronchitis diagnosis based upon symptoms of fever, cough, chills and nasal drainage over the past 4 to 5 days. The Veteran received Zithromax for treatment. On February 24, 2016, the Veteran had a VA sinusitis examination. The VA clinician diagnosed chronic sinusitis and allergic rhinitis. He noted the sinusitis and rhinitis history following the military wisdom tooth removal surgery. The Veteran took antibiotics for chronic sinusitis and nasal sprays for rhinitis. Sinusitis symptoms affected the maxillary and ethmoid sinuses. Current symptoms included episodes of sinusitis. The Veteran had four non-incapacitating episodes of sinusitis over the past 12 months. He did not have any history of sinus surgery. The clinician stated that sinusitis would not affect the Veteran's ability to work. August 2017 VA treatment records included complaints about a three week history for nasal drainage. The clinician ordered a prescription nasal spray and educated the Veteran about the sign of sinus infection. However, as there was no current infection, antibiotic treatment was not warranted. In October 2018, the Veteran had a Board hearing. He referenced having 2016 sinus surgery. He continued to experience sinus infections following the surgery after he stopped taking postoperative antibiotics. He had sinusitis episodes at least seven times per any 12 month period. The representative then asserted that following the 2016 sinus surgery, the Veteran had near constant sinusitis. In October 2018, the Veteran's wife reported that the Veteran had continuous sinus symptoms of facial tenderness, stuffy nose, frontal headaches and eye pain. He used over the counter medication for treatment that was not very effective. He also had ear pain symptoms associated with sinusitis episodes. In December 2018, E.L. reported that the Veteran had sinus infections every month and that every time he stopped taking antibiotics, a sinus infection would return. He noted due to sinusitis, the Veteran was unable to tolerate smoky environments. He encouraged the Veteran to have sinus surgery, but it did not resolve his symptoms. In December 2018, the Veteran's mother reported that his sinusitis symptoms affected his normal daily activities. The Veteran had to rest in bed during sinus episodes and was unable to work as a construction manager because the work site air quality exacerbated his sinusitis symptoms. He continued to have the same symptoms following the sinus surgery. August 2019 VA primary care records noted the allergic rhinitis and sinus surgery. The Veteran currently used Flonase nasal spray for treatment. In January 2020, the Veteran had a VA-contract sinus examination with a physician. The physician diagnosed chronic sinusitis and allergic rhinitis. She noted the pertinent medical history. The Veteran reported that he had episodic sinus that required up to 10 days of antibiotics and these episodes occurred at least 12 times per year. He had nasal surgery but could not state the exact date. He took multiple medications but continued to experience persistent symptoms. He reported that his symptoms were worse prior to the sinus surgery. Following surgery, they slightly improved but were persistent. He currently experienced symptoms on a monthly basis and needed 10 days of antibiotics per episode. He also experienced allergic rhinitis symptoms of itchy nose, clear drainage and nasal discharge. The physician reported periodic antibiotic treatment, antihistamine, nasal spray, decongestant and sinus surgery as treatment. Clinical evaluation showed maxillary, frontal and ethmoid sinus symptoms. Symptoms included headaches, sinus pain, tenderness, purulent discharge, crusting and tooth pain. The physician reported 7 or more non-incapacitating sinusitis episodes in the past 12 months. However, incapacitating episodes, defined as one requiring bed rest and treatment by a physician, were not indicated. The physician noted bilateral nasal endoscopic surgery per the Veteran's reports. The Veteran reported having his sinuses unplugged and cleaned. He was unsure of the exact date but confirmed it was with a private provider. Osteomyelitis or additional surgery was not indicated. The Veteran had to change jobs to work inside due to his sinusitis symptoms. The physician commented that there appeared to be a worsening of the Veteran's symptoms with an increase in frequency. She reported that symptoms initially improved following the sinus surgery but have returned and were persistent with increased frequency. She noted that 10 day antibiotic courses were required for treatment. For the following reasons, a 30 percent rating, but no higher, is warranted for service-connected sinusitis from October 30, 2018, but no earlier. The July 2013 DBQ and February 2016 VA examination report reflect that the Veteran did not have incapacitating episodes of sinusitis and had 6 or less non-incapacitating sinusitis episodes per year. These reports are highly persuasive since they are authored by medical professionals based upon a review of the record, including the Veteran's reports. Prior to October 30, 2018, the Veteran's reports concern recurring sinus symptoms but do not clearly identify a sinusitis episode frequency of more than 6 non-incapacitating episodes during a preceding 12 month period. It was only at the October 2018 hearing that the Veteran asserted his sinusitis episodes manifested at a frequency of 7 or more per year. It is unclear precisely when the frequency of the Veteran's sinusitis episodes increased. October 30, 2018 is the first factually ascertainable report about a frequency of non-incapacitating sinusitis episodes occurring more than 6 times per year to warrant a 30 percent rating for sinusitis. 38 C.F.R. § 3.400(o). It is corroborated by the January 2020 VA-contract examination report. Accordingly, from October 28, 2018, a 30 percent rating for sinusitis is warranted, and prior to October 28, 2018, a rating in excess of 10 percent for service-connected sinusitis is not warranted. Padilla-Fargas v. Wilkie, No. 19-0717 (Vet. App. Mar. 13, 2020) (mem dec); Calhoun v. Wilkie, No. 18-4896, 2019 U.S. App. Vet. Claims LEXIS 1282 (July 24, 2019 (mem dec) (criticizing the Board for finding a staged rating warranted as if a disability suddenly worsened on the day of a VA examination); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). See also Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (an "effective date should not be assigned mechanically" based on test results, but rather "all of the facts should be examined to determine" the appropriate effective date); Id. A 50 percent rating is not warranted at any point in the appeal period. The evidence of record does not show that the Veteran underwent multiple surgeries to alleviate his sinusitis or that his 2016 surgery was radical surgery with chronic osteomyelitis as a residual, as required in the criteria for a 50 percent rating. 38 C.F.R. § 4.97, DC 6513. Thus, a rating of 50 percent is not warranted. (Continued on the next page) For the above reasons, the Board finds that the sinusitis symptoms more nearly approximated the 30 percent rating criteria, but no higher, from October 30, 2018, but no earlier. As the preponderance of the evidence is against a higher rating at any time during the appeal period, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.