Citation Nr: 21041285 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-46 040 DATE: July 8, 2021 ORDER Prior to November 20, 2017, an initial compensable rating for chronic sinusitis is denied. From November 20, 2017, a 50 percent initial rating for chronic sinusitis is granted. An initial 10 percent rating for gastroesophageal reflux disease (GERD) for the entire appeal period is granted. Prior to January 15, 2019, an initial 30 percent rating for muscle contraction headaches is granted. An initial compensable rating for a right ring finger status post fracture, is denied. FINDINGS OF FACT 1. Prior to November 20, 2017, chronic sinusitis resulted in no incapacitating episodes and only in non-incapacitating episode during a 12-month period. 2. From November 20, 2017, chronic sinusitis resulted in repeated episodes of sinusitis treated with antibiotics, despite a history of two prior sinus surgeries. 3. Throughout the appeal period, the Veteran's GERD has manifested with chest pain, substernal arm pain, and other symptoms, but was not productive of considerable impairment of health. 4. Prior to January 15, 2019, the Veteran's headaches resulted in prostrating attacks that were not very frequent and prolonged and did not result in severe economic inadaptability. 5. The Veteran is assigned the maximum schedular rating for limitation of motion of the right ring finger. CONCLUSIONS OF LAW 1. Prior to November 20, 2017, the criteria for an initial compensable rating for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Code (DC) 6513. 2. From November 20, 2017, the criteria for a 50 percent initial rating for chronic sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, DC 6513. 3. The criteria for an initial 10 percent rating for GERD for the entire appeal period, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, DC 7346. 4. Prior to January 15, 2019, the criteria for an initial 30 percent rating for muscle contraction headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8100. 5. The criteria for a compensable rating for the right ring finger, status post fracture, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from February 1980 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision. It was previously remanded by the Board for development in November 2018. During the pendency of the appeal, the Veteran was granted a 50 percent rating for his headaches effective January 15, 2019. This is the maximum schedular rating available for that condition, and the Veteran has not asserted that his headaches warrant an extraschedular rating or result in any symptoms not contemplated by the applicable rating criteria. Therefore, the 50 percent rating is a full grant of the benefit sought on appeal, and the Board will limit its discussion to the rating warranted prior to that date. Increased Ratings 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 the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Chronic sinusitis prior to November 20, 2017 The Veteran's sinusitis is rated under DC 6513, which is part of the General Rating Formula for Sinusitis found in 38 C.F.R. § 4.97. At present, he is assigned a 0 percent rating prior to September 30, 2019, and a 30 percent rating thereafter. Under that formula, a noncompensable rating is assigned when sinusitis is detected by x-ray only. A 10 percent rating requires 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 requires 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 requires osteomyelitis following radical surgery; 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 states that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The Board finds that a compensable rating is not warranted prior to November 20, 2017. Private treatment records show the Veteran underwent sinus surgeries in January 2011 and August 2011. However, a June 2012 noted chronic sinusitis but no active signs or symptoms. The examiner also noted no incapacitating episodes and only 1 non-incapacitating episode of sinusitis in the past 12 months. There is no evidence specific to sinusitis for remainder of the period through November 20, 2017. Because the evidence shows no incapacitating episodes, and only 1 non-incapacitating episode, the criteria for a compensable rating have not been met. 2. Chronic sinusitis from November 20, 2017 From November 20, 2017, a 50 percent rating is warranted. As noted above, the Veteran had a history of sinus surgeries in January 2011 and August 2011. Starting in November 2017, he had documented sinusitis treated with antibiotics. He experienced similar episodes and treatment in March 2018, June 2018, January 2019, and July 2020. During that time, he had a September 2019 VA examination in which he reported having 5 to 7 sinus infections a year. In view of his prior surgical history and his ongoing episodes of sinusitis, the Board finds that his overall disability picture approximates the criteria for the 50 percent rating, which is the maximum schedular rating available. 3. GERD The Veteran's GERD is rated under 38 C.F.R. § 4.114, DC 7399-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. 38 C.F.R. § 4.27. DC 7346 addresses hiatal hernia. A 30 percent rating is assigned when there is persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is assigned when two or more of the symptoms for the 30 percent evaluation are present with less severity. The Veteran is currently assigned a 0 percent rating prior to September 30, 2019, and a 10 percent rating thereafter. The Board finds that a 10 percent rating, but no higher, is warranted for the entire period. A June 2012 VA examination noted chest pain and substernal arm pain. These two symptoms satisfy the 10 percent rating criteria. However, a higher 30 percent rating is not warranted because there is no indication that GERD was productive of considerable impairment of health. The VA examination and available outpatient treatment records do not document any weight loss, anemia, or other manifestation of impairment beyond the documented symptoms themselves. The criterion of "considerable impairment of health" is what differentiates the 30 percent rating from the 10 percent rating, and because that criterion has not been met, the higher rating is not appropriate. 4. Muscle contraction headaches prior to January 15, 2019 The Veteran's headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100, for migraine. Prior to January 15, 2019, he is assigned a 0 percent rating. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for prostrating attacks occurring on average once a month over several months. A maximum 50 percent is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The Board finds that a 30 percent rating is warranted prior to January 15, 2019. Private records from October 2011 document daily headaches, with "bad" ones occurring up to 3 times a week. In November 2011, he reported having a bad migraine headache the prior week, and that his headaches had returned to the "ones he was used to." An August 2017 private record noted that headaches occurred every day but reached "10/10" severity about once a week. However, a higher 50 percent rating is not warranted. A June 2012 VA examination indicated that the Veteran had prostrating attacks of non-headache pain more than once per month, but that he did not experience very frequent prostrating and prolonged attacks. In addition, while the Veteran reported in October 2017 that his migraine headaches seriously hampered his ability to work, the available treatment records and other evidence do not show any reference to missed work hours or other indication of economic inadaptability. Therefore, the criteria for the higher 50 percent rating are not met during this period. 5. Right ring finger The Veteran's right ring finger disability is rated under 38 C.F.R. § 4.71a, DC 5230. That code provides a single 0 percent rating for any limitation of motion of the finger. Notably, DC 5226, which addresses favorable or unfavorable ankylosis (fixation) of the ring finger, also provides for a 0 percent rating. In a June 2012 statement, the Veteran indicated that he had limitation range of motion of the finger, with associated soreness and stiffness with use. A VA examination from that same month documented limited range of motion of the finger. Unfortunately, the rating criteria do not provide for a higher rating for limitation of motion of the ring finger, and therefore the claim must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.