Citation Nr: 22007202 Decision Date: 02/08/22 Archive Date: 02/08/22 DOCKET NO. 16-61 196 DATE: February 8, 2022 ORDER Prior to January 30, 2020, an initial compensable rating for chronic sinusitis with headaches, is denied. On and after January 30, 2020, a 10 percent disability rating, but no higher, for chronic sinusitis with headaches, is granted. FINDINGS OF FACT 1. Prior to January 30, 2020 the Veteran's chronic sinusitis with headaches had not been productive of 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. 2. From January 30, 2020, the competing lay and medical evidence is in approximate balance regarding whether or not the Veteran's chronic sinusitis has been productive of 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. Thus, the Board resolves the benefit of the doubt in favor of the Veteran. CONCLUSIONS OF LAW 1. Prior to January 30, 2020, the criteria for an initial compensable rating for chronic sinusitis with headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.97, Diagnostic Code (DC) 6513. 2. From January 30, 2020, the criteria for an initial 10 percent disability rating, but no higher, for service-connected chronic sinusitis with headaches. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to January 1990, September 1995 to October 1995 and March 2003 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2020. In April 2020, the Board remanded the Veteran's claim for additional development. The case is once again before the Board. Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. Entitlement to an initial compensable disability rating for chronic sinusitis with headaches The Veteran seeks to establish a compensable disability rating for service-connected chronic sinusitis with headaches, or in the alternative she seeks a separate rating for headaches. See December 2021 Appellate Brief. For the entire appeal period, the Veteran has been in receipt of a noncompensable rating for service-connected sinusitis with headaches under 38 C.F.R. § 4.97, DC 6513. Under the General Rating Formula for Sinusitis, provided for in diagnostic codes 6510 through 6514, a noncompensable rating is assigned where sinusitis is detected by X-ray only. A 10 percent evaluation is assigned where there are 1 or 2 incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned where there are 3 or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Finally, a 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. For VA purposes, an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Note 1. Prior to January 30, 2020 A May 2016 VA sinusitis disability benefits questionnaire (DBQ) reflects that the Veteran had a diagnosis of chronic sinusitis and allergic rhinitis with onset in 1993. Maxillary sinusitis was assessed with symptoms of headaches and purulent discharge. The Veteran was noted to have had two non-incapacitating episodes of sinusitis within the past 12 months. She did not have incapacitating episodes of sinusitis. Sinus surgery had not been performed. There were no other pertinent physical findings, complications, condition, signs, or symptoms related to her sinusitis. X-rays showed complete opacification of maxillary sinus. The examiner noted that the sinus condition did not impact the Veteran's ability to work. Further, the Board notes that the Veteran's treatment records do not reflect that she had chronic sinusitis with 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 to warrant a compensable rating prior to January 30, 2020. Thus, the evidence fails to show that a compensable disability rating is warranted prior to January 30, 2020. From January 30, 2020 During the January 2020 Board hearing, the Veteran testified that her symptoms worsened since her May 2016 examination. See Board hearing transcript, page 7. She testified that when she gets severe flare ups, she will have blurred vision and pain across her face and that the flare ups happen at least once every two months, with a lessening degree during the in between periods. Id. at page 3. She also testified that during flare ups she is incapable of blowing her nose because everything is inflamed and swollen and she has a lot of "postnasal," but when she finds the right medication, her nasal discharge is never ending. Id. at page 4. She takes motrin to alleviate the headaches she experiences during a flare up. Id. The Veteran testified that she is not currently undergoing any kind of specific therapy or assessments for these conditions but that she has in the past. Id. at pages 4-5. On at least three occasions which she could recall she has had to either have a Z-Pak and then a different antibiotic over the course of maybe six to eight weeks in order to clear up the infection. Id. at page 5. She testified that she has never had a surgical procedure, but it has been discussed at one of her appointments. Id. Socially, she is unable to do anything during a flare up. Id. She has been treated by an ophthalmologist for her optical conditions. She testified that she experiences non-severe issues on a daily basis which includes postnasal drip and crusting. Id. at page 8. The Board finds her assertion that she has experienced symptoms such as headaches, postnasal drip and crusting to be both competent and credible. In April 2020, the Board remanded the Veteran's claim for a new VA examination to assess the current severity of her sinusitis. In October 2020, the Veteran was afforded a VA headaches examination. A diagnosis of sinus headache was noted. The Veteran reported her headache pain is most often due to sinus pain/pressure. She reported sinus pain in her maxillary sinuses which travels upward between her eyes and frontal region. The examiner noted headache pain localized to one side of head lasting less than one day. The Veteran did not experience non-headache symptoms associated with headaches, including changes in vision. She was noted to have characteristic prostrating attack of migraine/non-migraine pain with less frequent attacks. With respect to functional impact, the Veteran reported that having to look at a computer screen all day can cause her to develop a headache and she will sometimes be unable to focus due to the intensity of pain. In October 2020, the Veteran was also afforded a VA sinusitis examination. The Veteran reported ongoing sinusitis for the last 25 years which she treated with antibiotics. She reported trying many different preventative and alternative treatment methods but reported her symptoms have persisted. Her current symptoms were noted as constant pressure/tenderness in maxillary sinuses which averages 2/3 out of 10 daily pain. The examiner noted that the maxillary sinuses were affected. Symptoms included episodes of sinusitis, headaches, pain of affected sinus, and tenderness of affected sinus. The Veteran reported that she experiences sinusitis about two to three times a year. She was noted to have had non-incapacitating episodes two times over the past 12 months. She did not have incapacitating episodes (four to six weeks) requiring prolonged antibiotics treatment in the past 12 months. No surgery was noted. There were no other pertinent physical findings, complications, condition, signs, or symptoms related to her sinusitis. Imaging studies revealed severe bilateral maxillary sinus disease. Paranasal sinuses were negative. The examiner noted that she experiences incapacitating pain one time per year, which she described these episodes as "putting her out of commission" due to the intensity. She reported two to three times per year she has difficulty focusing, her eyes get blurry, and she cannot easily complete tasks of her job requirement. In consideration of the above, the Board finds that the competent and probative medical and lay evidence as to whether the Veteran's sinusitis presented with 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 is in approximate balance. The Board further finds that the evidence of record does not a support a rating in excess of 10 percent at any time during the period on appeal. With respect to the Veteran's request for a separate rating for headaches, headaches are specifically contemplated under the ratings criteria for sinusitis. An October 2020 VA examination report diagnosed the Veteran with sinus headaches as opposed to a separate headache disorder. As such, a separate rating is not warranted. See Coepland v. McDonald 27 Vet. App. 333 (2015). Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds a 10 percent disability rating, but no higher, for chronic sinusitis with headaches, from January 30, 2020 is warranted. 38 C.F.R. § 4.97, DC 6513 M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.