Citation Nr: 22005131 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 18-02 281 DATE: February 1, 2022 ORDER Entitlement to an initial rating in excess of 50 percent for chronic sinusitis is denied. FINDING OF FACT The Veteran is in receipt of a 50 percent rating, the highest schedular rating for sinusitis. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.16, 4.97, Diagnostic Code 6512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1995 to January 1999. In August 2021, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (Board) in August 2021 for additional development. It now returns for further appellate review. 1. Chronic Sinusitis The Veteran initially sought a compensable rating for his service-connected chronic sinusitis. See August 2017 Notice of Disagreement (NOD). While the claim was on remand, the Veteran was granted a 50 percent rating effective March 27, 2014, the date service connection was granted. See October 2021 Rating Decision. Discussion The Veteran's chronic sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6512. This Diagnostic Code provides that 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, the maximum schedular 50 percent rating is assigned. The Veteran is already in receipt of a 50 percent rating, which is the maximum schedular rating available under DC 6512. 38 C.F.R. § 4.97. As such, a higher schedular rating is not available. Accordingly, the Board concludes that an increased schedular rating in excess of 50 percent for the Veteran's service-connected chronic sinusitis is not warranted. AB v. Brown, 6 Vet. App. 35, 38 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board considered whether a referral for extra-schedular consideration is warranted. However, the Board finds that Veteran's symptoms have been adequately compensated by the rating schedule. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extra-schedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with his employment or frequent periods of hospitalization that would render impractical the application of the regular scheduler standards. See 38 C.F.R. § 3.321 (b)(1) (2017); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's overall disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The Board acknowledges the Veteran's report of symptoms such as headaches, nasal discharge, obstructive sleep apnea, and deviated septum. See August 2021 Hearing Transcript. However, the August 2021 VA examiner opined that the Veteran's deviated septum was not related to or caused by the Veteran's service-connected chronic sinusitis. See August 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Additionally, the Board notes that the Veteran is service-connected for migraine headaches and obstructive sleep apnea. See October 2021 Rating Decision Codesheet. As such, the Veteran's migraine headaches and obstructive sleep apnea are compensated under separate DCs. Notably, the Veteran's sinusitis symptoms such as sinus pain, nasal discharge, sinus infections are all common symptoms of sinusitis and do not present such an exceptional disability picture that the available schedular ratings are inadequate. Further, the Veteran stated at the September 2021 VA examination that his sinusitis did not affect his ability to work. See September 2021 Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx, and Pharynx DBQ. The primary purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties due to sinusitis. Accordingly, the Board finds that the weight of evidence does not demonstrate that the symptoms associated with sinusitis and resulting difficulties tare not contemplated by the rating schedule. Therefore, the Board finds that the weight of the competent and probative evidence is against finding such an exceptional disability picture as to render the schedular criteria inadequate. As such referral for extra-schedular rating is not warranted. In sum, the Veteran has been assigned the maximum 50 percent rating for the Veteran's chronic sinusitis dating back to August 27, 2014, which covers the entire period on appeal. This constitutes the maximum assignable rating under such DC 6512. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). There is otherwise no appropriate rating code which could provide a schedular disability rating in excess of 50 percent, especially when a condition is specifically listed in the rating schedule, like here, VA must apply the DC that specifically pertains to the listed condition to determine the appropriate disability evaluation. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Additionally, the Veteran's symptoms have been compensated under DC 6512 or other service-connected conditions such as obstructive sleep apnea and migraine headaches under separate DCs for those conditions. (Continued on the next page) The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. As the preponderance of the evidence is against the claim, the statutory provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Therefore, a rating in excess of 50 percent is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.