Citation Nr: 21040660 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-01 517 DATE: July 6, 2021 ORDER Entitlement to an initial compensable disability rating for service-connected chronic sinusitis is denied. FINDING OF FACT The Veteran's chronic sinusitis manifests as a diagnosed disability with nasal congestion but no incapacitating episodes, and the record does not provide information as to how many non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting occurred per year. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.655, 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1980 to September 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for additional development in September 2018 and November 2020. Entitlement to an initial compensable disability rating for service-connected chronic sinusitis is denied. In September 2018, the Board remanded the issue to obtain a new VA examination. In response to the remand directives, the Agency of Original Jurisdiction (AOJ) attempted to schedule the Veteran for VA examinations, but the Veteran did not reply. In October 2019 and May 2020, the Veteran's attorney notified VA that the Veteran had experienced a severe stroke and that she was attempting to obtain his status. The Board determined that the Veteran should be afforded another opportunity to receive a VA examination and remanded the issue again. Pursuant to the November 2020 remand directives, the AOJ made multiple attempts to schedule the Veteran for a new VA examination. He did not reply. Neither the Veteran nor his attorney provided information as to why the Veteran failed to report to these examinations and he has not updated his mailing address. The Veteran's attorney stated that she has not been able to contact the Veteran. The Board notes that VA had spelled the Veteran's attorney's address incorrectly in correspondence, but this was subsequently corrected in an April 2021 letter. Throughout the period on appeal, VA has listed the Veteran's address as being on "Chelsen" Drive, but it is "Chelsea" Drive. However, even though the spelling of the address was one letter off, he consistently responded to VA correspondence that was sent using "Chelsen." Therefore there is actual notice that it was being routed to "Chelsea" Drive. Mail sent to "Chelsen" Drive has not been returned to VA. The duty to assist is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The AOJ made multiple attempts to schedule the Veteran for VA examinations and he did not reply. There was therefore substantial compliance with the remand directives with regard to the issue being decided below. Stegall v. West, 11 Vet. App. 268 (1998). When entitlement to a benefit cannot be established without a VA examination, and the Veteran, without good cause, fails to report for it, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c), as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. 38 C.F.R. § 3.655(a). Although the Veteran has had a stroke, VA made multiple attempts to schedule an examination using his address of record. He has not provided an updated address and has not communicated with VA in any way, and has not asserted that the stroke he had in 2018 prevented him from attending an examination in 2020 or 2021. Good cause has not been shown. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). When, as in this case, the Veteran appeals from an original assignment of a disability rating, the claim is classified as an original claim, as opposed to one for an increased rating. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); Turk v. Peake, 21 Vet. App. 565 (2008). The Board will decide the claim based on the evidence of record. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased 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). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations should be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under the General Rating Formula for Sinusitis (38 C.F.R. § 4.97, Diagnostic Codes 6510-6514), a noncompensable rating is assigned if the chronic sinusitis is detected by x-ray only. The next-higher 10 percent rating is warranted for one or two incapacitating episodes 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. Id. 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. Id. A 50 percent rating is warranted 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. While the record reflects that the Veteran had surgery on his sinuses in December 1996, the record does not reflect that he had 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 surgery. A July 2008 CT scan of the Veteran's sinuses indicated that the Veteran had a diagnosis of chronic sinusitis. The Veteran was afforded a VA examination in March 2012. At this time, the examiner noted that the Veteran's nasal sinus disease was non-incapacitating. In his April 2012 Statement in Support of Claim, the Veteran stated that he was hit on the bridge of the nose causing a laceration and permanent scar, resulting in his chronic sinusitis. Further, treatment records from a non-government facility dated May 2013 demonstrate that the Veteran was treated for acute sinusitis four times over the past eight years. Specifically, the Veteran sought treatment once in 2006, once in 2007, once in 2008 and once in 2009 and did not seek treatment from 2010-2013. The Veteran was also afforded a VA examination in November 2015. The examiner noted that the Veteran had diagnoses of chronic sinusitis and allergic rhinitis and had two surgeries for these conditions. The Veteran's chronic sinusitis affects his maxillary and ethmoid sinuses, and the condition causes the Veteran to experience nasal congestion. The examiner reported that the Veteran did not have any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months. At the November 2015 VA examination, the examiner noted that the Veteran had non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months but did not specify how many episodes the Veteran had. The Board does not have adequate information regarding the Veteran's chronic sinusitis. However, as there has been no communication from the Veteran and the Veteran's attorney cannot reach him, further attempts to get this information would be futile. As discussed above, the Board can decide this issue based on the evidence of record. Review of the pertinent evidence of record during the entire initial rating period does not indicate that the Veteran's chronic sinusitis has been characterized by 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. Therefore, the noncompensable rating for the Veteran's chronic sinusitis is appropriate. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.