Citation Nr: 22007828 Decision Date: 02/10/22 Archive Date: 02/10/22 DOCKET NO. 17-08 275 DATE: February 10, 2022 ORDER Entitlement to an initial compensable evaluation for chronic non-suppurative otitis media (serous) is denied. Entitlement to an initial 10 percent rating for pharyngitis, for the period from February 28, 2013, to February 12, 2015, is granted. Entitlement to an initial rating in excess of 10 percent for pharyngitis is denied. Entitlement to an initial compensable rating for allergic rhinitis, prior to March 25, 2021 is denied. Entitlement to a rating in excess of 30 percent for allergic rhinitis from March 25, 2021 is denied. Entitlement to an initial compensable rating for chronic sinusitis for the period from February 28, 2013, to September 1, 2015, is denied. Entitlement to a rating of 50 percent for chronic sinusitis for the period from September 1, 2015, to September 1, 2016, is granted. The reduction of the disability rating for chronic sinusitis from 50 percent to 0 percent disabling, effective January 1, 2019, was improper and the previously assigned 50 percent disability rating from January 1, 2019, is restored. Entitlement to a rating in excess of 50 percent for chronic sinusitis for the period from September 1, 2015, forward is denied. REMANDED Entitlement to service connection for bilateral leg disability, to include leg cramping is remanded. Entitlement to a total disability individual unemployability (TDIU) rating is remanded. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's chronic non-suppurative otitis media (serous) has manifested in no worse than Level II hearing acuity in both ears. 2. For the period from February 28, 2013 to February 12, 2015, affording the benefit of the doubt, the Veteran's pharyngitis symptomatology was equivalent to chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane. 3. The weight of the evidence reflects that for no portion of the period on appeal, has the Veteran's pharyngitis symptoms been manifested by thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 4. For the period on appeal prior to March 25, 2021, the Veteran's allergic rhinitis did not result in greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 5. From March 25, 2021, forward, the Veteran's allergic rhinitis has been assigned a 30 percent rating, which is the maximum schedular rating authorized under the applicable criteria. 6. For the period from February 28, 2013, to September 1, 2015, the Veteran did not have one to two incapacitating episodes of sinusitis requiring prolonged antibiotic treatment per year, three to six non-incapacitating episodes per year, or any history of sinus surgery. 7. For the period from September 1, 2015, September 1, 2016, the Veteran experienced near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge 8. The reduction of the Veteran's service-connected chronic sinusitis rating from 50 percent to 0 percent, effective January 1, 2019, was improper because the record did not clearly establish material improvement. 9. For the period from September 1, 2015 forward, the Veteran's service-connected chronic sinusitis is assigned the maximum schedular rating of 50 percent, as well as separate ratings under diagnostic code (DC) 6522 for allergic rhinitis and DC 6516 for his pharyngitis, co-existing respiratory conditions, and there are no additional applicable co-existing respiratory conditions. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for chronic non-suppurative otitis media have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, DC 6201. 2. For the period from February 28, 2013 to February 12, 2015, the criteria for a disability rating of 10 percent, but no higher, for pharyngitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6516. 3. For the entire period on appeal, the criteria for a disability rating in excess of 10 percent for pharyngitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6516. 4. For the initial rating period on appeal prior to March 25, 2021, the criteria for a compensable disability rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.97, DC 6522. 5. Beginning March 25, 2021, the criteria for a disability rating in excess of 30 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.97, DC 6522. 6. For the period from February 28, 2013 to September 1, 2015, criteria for an initial compensable rating for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, DC 6513. 7. For the period from September 1, 2015 to September 1, 2016, criteria for a 50 percent rating for chronic sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, DC 6513. 8. The reduction of the disability rating assigned for chronic sinusitis from 50 percent to 0 percent disabling, effective January 1, 2019, was improper and the 50 percent disability is restored. 38 U.S.C. § 1155; 38 C.F.R. § 3.105. 9. For the period from September 1, 2015 forward, the criteria for a rating in excess of 50 percent for chronic sinusitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.96, 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board videoconference hearing in January 2020. A transcript is of record. Historically, a January 2015 rating decision granted service connection for chronic sinusitis with allergic rhinitis and pharyngitis and rated it noncompensable from February 28, 2013. The Veteran timely filed a notice of disagreement (NOD) with this decision. In January 2017, the RO issued an additional rating decision increasing the Veteran's chronic sinusitis from noncompensable to a rating of 50 percent from September 1, 2016, and separately increased his pharyngitis from noncompensable to 10 percent from February 12, 2015. See AB v. Brown, 6 Vet. App. 35 (1993). The noncompensable rating assigned for his rhinitis was continued. An October 2018 rating decision reduced the Veteran's sinusitis rating from 50 percent to noncompensable from January 1, 2019. That said, in January 2017, the RO issued a statement of the case (SOC) as to the pharyngitis but did not specifically adjudicate his still pending claims for increased rating for sinusitis or rhinitis. Review of the record establishes that the claims were initially adjudicated together as a single issue when a January 2015 rating decision granted service connection for "chronic sinusitis with allergic rhinitis and pharyngitis." As such, the Board considers all issues to be properly within its jurisdiction. The aforementioned is reflected in the issues listed above. This matter was remanded in May 2020 for further development. While pending return to the Board, the RO granted service connection for costochondritis, pes planus, and plantar warts. The Board considers these awards a full grant of the benefits sought on appeal and therefore, these issues are considered no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In addition, the RO granted increased ratings for the Veteran's rhinitis and sinusitis disabilities, 30 and 10 percent, respectively, from March 25, 2021. The Veteran has continued his appeals. See AB v. Brown, 6 Vet. App. 35 (1993). INCREASED RATING Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by DC. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial compensable evaluation for chronic non-suppurative otitis media (serous). The Veteran seeks an initial compensable rating for his chronic non-suppurative otitis media. As this claim stems from the initial grant of service connection, the relevant period on appeal is from date of service connection, February 28, 2013, forward. Following consideration of the record, an increase rating is not warranted for any portion of the period on appeal. DC 6201 directs that chronic nonsuppurative otitis media with effusion (serous otitis media) should be rated as hearing impairment. 38 C.F.R. § 4.87. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method for rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz). Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hz divided by 4. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A September 2016 VA examination reveals that the Veteran reported speaking and turning the television up too loud. He also reported being unable to understand others on the phone. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 30 30 30 28.75 84 LEFT 30 35 30 45 35 96 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A July 2021 VA examination reveals that the Veteran reported listening to the television louder than his family prefers and difficulty communicating with others as well as asking others to repeat themselves. He also reported that his hearing loss causes him difficulty with his job at the school board. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 65 65 70 61.25 94 LEFT 50 65 70 75 65 94 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Treatment medical records do not contain audiological testing results worse than above. Based on the evidence above, compensable rating for the Veteran's bilateral hearing loss is not warranted for any portion of the appeal. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his statements of difficulty communicating with others, and having to increase the television volume. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating for hearing loss for any portion of the period on appeal. As the most probative evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). 2. Entitlement to an initial rating compensable rating for pharyngitis prior to February 12, 2015. 3. Entitlement to a rating in excess of 10 percent for pharyngitis for the period from February 12, 2015. The Veteran seeks increase ratings. As this claim stems from the initial grant of service connection, the relevant period on appeal is from date of service connection, February 28, 2013, forward. He is currently assigned a non-compensable rating for the period prior to February 12, 2015, and a 10 percent thereafter under DC 6599-6516. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. DC 6516 provides that chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane is rated as 10 percent disabling. Chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy is rated as 30 percent disabling. 38 C.F.R. § 4.97. Following consideration of the record, entitlement to an initial 10 percent rating from February 28, 2013, to February 12, 2015, is warranted. However, a rating in excess of 10 percent is not warranted for any portion of the period on appeal. Turning to the record, per the Veteran, throughout the appeal his condition manifested in symptomatology equivalent to hoarseness and inflammation of the vocal cords. He testified on Board hearing to experiencing strep throat for years on-and-off that required emergency room treatment. Treatment records support his assertions. From the start of the appeal forward, the Veteran has been prescribed varying medications including lozenges and throat spray to treat his symptomatology which regularly included throat pain. These records also reflect he sought emergency room treatment for his condition. In affording the Veteran the full benefit of the doubt, the Board finds his symptoms have been equivalent to a 10 percent rating. The Board acknowledges that the Veteran's January 2015 examination was negative for the presence of chronic laryngitis. Nevertheless, the collective evidence, when paired with the Veteran's lay assertions and treatment records, sufficient to support symptomatology equivalent to an initial compensable rating of 10 percent for the period from February 28, 2013, to February 12, 2015. That said, a rating in excess of 10 percent is not warranted for any portion of the period on appeal. A 30 percent rating requires the presence of chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy. The claims file is negative for such finding. The January 2015, September 2016, and March 2021 VA examinations, at worst, indicate the Veteran experienced incomplete organic aphonia and chronic infection of the pharynx treated on occasions with antibiotics. However, they are silent for a finding chronic laryngitis or evidence that the Veteran's chronic infection of the pharynx is manifested by thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Treatment medical records are also negative for these findings. Thus, the record does not contain evidence of symptoms contemplated by the criteria for a 30 percent. The Board acknowledges that the Veteran is competent to report symptoms of hoarseness, sore throat, and difficulty swallowing. However, as a layperson the Veteran is not competent to distinguish between inflammation of cords or mucous membranes and thickening or nodules cords, polyps, and submucous infiltration. As to the overall level of impairment, the Board assigns greater probative value to the conclusions reached on the VA examination, as it was predicated on a review of the claims file, interview of the Veteran, and physical examination of the Veteran by a skilled medical professional. The Board has also considered DC 6518 (laryngectomy), 6519 (complete organic aphonia), 6520 (stenosis of larynx) and 6521 (injuries to the pharynx). 38 C.F.R. § 4.97. However, those DCs are not applicable as there is no evidence of pharynx injury, pharynx stricture, pharynx or nasopharynx obstruction, chemical burn, granulomatous disease, nasal regurgitation and speech impairment, complete aphonia, stenosis of the larynx, or a prior laryngectomy. The Board thereby finds that an initial 10 percent rating is warranted for the Veteran pharyngitis for the period from February 28, 2013, to February 12, 2015. However, the persuasive of the evidence of records is against a rating in excess of 10 percent, for any portion of the appeal. 4. Entitlement to an initial compensable evaluation for rhinitis. 5. Entitlement to an evaluation in excess of 30 percent prior to March 25, 2021, for rhinitis. The Veteran's claim for increase ratings for rhinitis stems from the initial grant of service connection. The relevant period on appeal is from date of service connection, February 28, 2013, forward. He is currently assigned a non-compensable rating for the period prior to March 25, 2021, and a 30 percent rating thereafter under DC 6522. Under Diagnostic Code 6522, a 10 percent rating is assigned for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side; and a 30 percent rating is assigned for allergic or vasomotor (non-allergic) rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. Turning to the record, January 2015 and September 2016 VA examinations were negative for a finding of greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. Examinations were also negative for complete obstruction of either left or right-side obstruction due to rhinitis. The Veteran also did not have granulomatous conditions. 2016 examination also expressly found no permanent hypertrophy of the nasal turbinates and nasal turbinates. Of note, March 2021 examination mirrored the above, except for being positive for permanent hypertrophy of the nasal turbinates and nasal polyps. Treatment medical records do not reflect symptomatology worse than what has been stated. Based on the evidence of record, the Board finds that an initial compensable rating is not warranted prior to March 25, 2021. During this period, the Veteran's rhinitis was primarily manifested by nasal secretions and without nasal polyps. The criteria for a compensable rating is not warranted. The objective medical evidence, to include the VA examination reports and diagnostic testing, does not show that the Veteran's allergic rhinitis resulted in polys or greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction of one nasal passage during the applicable period. The Board acknowledges the Veteran's reports that he experienced nasal congestion. However, the Veteran is not competent to determine the degree in which his nose was obstructed. The Veteran's allergic rhinitis is simply not shown to exhibit any compensable manifestations. As such, the Board concludes that an initial compensable rating is not warranted under DC 6522 for the appeal period prior to March 25, 2021. Consideration has been given to the Veteran's statement that his rhinitis is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a compensable disability evaluation have been met. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board additionally notes that no other diagnostic code is for consideration as the Veteran does not meet the requirements for compensable rating for bacterial rhinitis (6523) or Granulomatous rhinitis (6524). See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Moreover, as stated above, he does not meet the requirements of respiratory conditions under DC 6518 (laryngectomy), 6519 (complete organic aphonia), 6520 (stenosis of larynx) or 6521 (injuries to the pharynx). 38 C.F.R. § 4.97. Regarding the period from March 25, 2021, the maximum rating available for allergic rhinitis under DC 6522 is 30 percent. Entitlement to an increased rating in excess of 30 percent for service-connected allergic rhinitis is not warranted. The Board finds that a rating in excess of 30 percent is also not warranted during this portion of the appeals period under any other DC. In this regard, where a condition is listed in the schedule, rating by analogy is not appropriate. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). For these reasons, the Board finds that a persuasive of the evidence is against the claim for a compensable rating for allergic rhinitis prior to March 25, 2021, and for a rating in excess of 30 percent thereafter. Because the persuasive of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to an initial compensable rating for sinusitis prior to September 1, 2016. 7. Entitlement to a rating in excess of 50 percent for sinusitis from September 1, 2016 to January 1, 2019. 8. Entitlement to a compensable rating for sinusitis from January 1, 2019 to March 25, 2021, to include the propriety of the reduction from 50 percent to noncompensable from January 1, 2019. 9. Entitlement to a rating in excess of 10 percent for sinusitis from March 25, 2021. The Veteran seeks increase ratings for his chronic sinusitis, which stems from the initial grant of service connection. The relevant period on appeal is from date of service connection, February 28, 2013, forward. In relation thereto, the Veteran has been rated noncompensable from February 28, 2013, to September 1, 2016; 50 percent from September 1, 2016, to January 1, 2019; noncompensable from January 1, 2019, to March 25, 2021; and 10 percent from March 25, 2021 forward. Throughout the period on appeal, the Veteran's chronic sinusitis has been rated under 38 C.F.R. § 4.97, DC 6513, Sinusitis, maxillary, chronic. Under DC 6513, a 10 percent rating is assigned where one or two incapacitating episodes of sinusitis per year require prolonged (lasting 4 to 6 weeks) antibiotic treatment or where there are three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned when there are 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. The next and highest scheduler rating of 50 percent is assigned 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. 38 C.F.R. § 4.97, DC 6513. Turning to the record, the Board will first address the period from February 28, 2013, to September 1, 2016. On January 2015 VA examination, the Veteran had episodes of sinusitis. He did not have non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting the past 12 months. The Veteran also did not have incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months. He was negative for sinus surgery. The examiner indicated that the Veteran's sinuses were not currently affected by his chronic sinusitis. Treatment medical records do not reflect symptomatology worse than noted on VA examination. The Board finds that the competent and probative medical and lay evidence does not warrant an initial compensable rating. In this regard, the Veteran's VA examination reports as well as VA treatment records associated with the claims file do no show he reported or was assessed with one or two incapacitating episodes of sinusitis per year require prolonged (lasting 4 to 6 weeks) antibiotic treatment or that he experienced three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. In sum, the evidence does not show a disability picture with incapacitating episodes or three or more non-incapacitating episodes to warrant a compensable rating prior to September 1, 2015. See 38 C.F.R. § 4.97, DC 6513. The Veteran's belief that he is entitled to a higher initial rating for his sinusitis is outweighed by the competent medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination report, and treatment records, that were recorded following physical examinations of the Veteran than to the Veteran's general belief that he is entitled to a higher rating. Accordingly, the Board finds that a persuasive of the evidence is against an initial compensable rating for sinusitis prior to September 1, 2015, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. That said, the Board finds that a 50 percent rating is warranted for the period from September 1, 2015, to September 1, 2016. In that regard, a indicated above, a 50 percent is assigned 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. 38 C.F.R. § 4.97, DC 6513. Per a September 1, 2016, VA examination, the Veteran suffered from near constant sinusitis (at least weekly), headaches, tenderness of affected sinus, purulent discharge. His headaches were described as present in the frontal region of his head, with tenderness over frontal/maxillary sinuses. He also experienced occasional dark nasal discharge. Importantly, the examiner indicated that the Veteran suffered from both non-incapacitating and incapacitating episodes of his sinusitis during the year prior to examination. In affording the Veteran the benefit of the doubt, a 50 percent rating is warranted beginning September 1, 2015, one year prior to the date of VA examination. However, a rating in excess of 50 percent is not warranted as it is the maximum schedular rating for sinusitis. See 38 C.F.R. § 4.97, DC 6513. The record does not show other symptoms attributable to the Veteran's chronic sinusitis with allergic rhinitis and pharyngitis that are not contemplated by the rating criteria. Moreover, per the record, the Veteran does not have other coexisting respiratory conditions such as deviated nasal septum, traumatic only; laryngectomy; complete aphonia; pharyngeal injury; anatomical loss of part of the nose; benign or malignant neoplasm of the sinus, nose, throat, larynx or pharynx; bacterial rhinitis; and/or granulomatous rhinitis. He is already in receipt of separate ratings for his allergic rhinitis and pharyngitis. As there is no legal basis upon which to award a higher schedular rating for chronic sinusitis, the Veteran's appeal for a rating in excess of 50 percent for chronic sinusitis, from September 1, 2015, to January 1, 2019, is denied. Turning to the period from January 1, 2019, to March 25, 2021, the Veteran is in receipt of a noncompensable rating. Prior to addressing the applicability of increase rating for this period, the Board must first consider the propriety of the RO's reduction of the Veteran's 50 percent rating to noncompensable beginning January 1, 2019. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. A veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to a veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). A veteran's disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. 38 U.S.C. § 1155. Additionally, in certain rating reduction cases, the recipients of VA benefits are to be afforded greater protections. These additional protections apply in cases involving ratings that have continued for long periods of time at the same level (that is, five years or more); for ratings in effect for fewer than five years, reduction is warranted if the evidence shows improvement of the condition. 38 C.F.R. § 3.344. Said more simply, in determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the agency of original jurisdiction (AOJ) satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. Regarding the initial question, the procedural requirements have been met. In the instant case, in an April 2017 rating decision, the RO proposed to reduce the Veteran's sinusitis rating from 50 percent disabling to noncompensable. The RO predicated the reduction on the findings of a March 2017 VA examination which showed improvement in his condition. April 2017 correspondence explained the effect the proposed reduction would have on the Veteran's combined disability evaluation and informed the Veteran of his options to submit additional evidence and request a personal hearing. In May 2017, the Veteran submitted disagreement with the reduction and requested a personal hearing. A hearing was scheduled for October 24, 2018, but the Veteran did not attend the hearing. Final action to reduce the 50 percent rating to 0 percent was taken pursuant to 38 C.F.R. § 3.105(e) in October 2018. The Veteran was informed of that decision by letter dated October 30, 2018. The reduction was made effective beginning January 1, 2019. The RO complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Moreover, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). The Veteran has not asserted that these procedural provisions were not followed. Thus, the Board finds that the RO appropriately followed the procedural actions to accomplish the discontinuance of the 50 percent rating, which resulted in a reduction of the Veteran's benefits. The remaining question is whether the reduction in the disability rating is warranted based on the medical and lay evidence of record. As indicated above, a 50 percent is assigned 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. 38 C.F.R. § 4.97, DC 6513. The Veteran's 50 percent rating was predicated on a September 1, 2016, VA examination. On examination the Veteran's sinusitis was noted to impact the maxillary and frontal sinus. As stated, symptoms associated with his condition were near constant sinusitis (at least weekly), headaches, tenderness of affected sinus, purulent discharge. His headaches were described as present in the frontal region of his head, with tenderness over frontal/maxillary sinuses. He also experienced occasional dark nasal discharge. He was noted to experience non-incapacitating episodes 7 or more times over the past year. He also experienced incapacitating episodes at least twice in the previous 12 months. Per the April 2017 rating decision, the proposal of reduction was predication on a March 10, 2017, VA examination which demonstrated improvement in the Veteran's chronic sinusitis. The March 2017 examination was an obstructive sleep apnea (OSA) examination and not a sinusitis examination. That said, at the time of examination, the Veteran reported not being on medication or antihistamines and denied being regularly followed by an ear, nose, and throat specialist or allergist. He also denied receiving diagnostic testing as to the severity of his condition. However, he maintained experiencing nasal congestion and discharge "most of the time." Diagnostic testing completed at the time of examination revealed no evidence of infection or aggressive features. Based on the above 2017 examination findings, the RO proposed reduction as the Veteran's chronic sinusitis had improved. The Board finds that the reduction was not proper and that a restoration of the 50 percent rating is therefore warranted. While there were indeed indications of improvement, the burden to justify a reduction in disability rating is on VA and must comply with applicable standards. See Brown v. Brown, 5 Vet. App. 413 (1993). That burden has not been met. The Veteran's disability rating was reduced based on the findings of a VA examination. The examination was prepared in conjunction with OSA testing. As a result, the examination on its face did not directly address the relevant symptomatology requisite to ascertain the severity of the Veteran's condition. To that end, the examination report is negative for direct questioning as to the Veteran suffering from headaches, pain, or sinus tenderness. Moreover, although the Veteran denied seeing a regular care provider, the examiner did not inquire as to whether he nevertheless experienced incapacitating or non-incapacitating episodes. The evidence of record did not clearly demonstrate sustained improvement. Additionally, it is not shown that such material improvement of the condition actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. The record shows that while the RO indicated improvement in the Veteran's sinusitis, it analyzed the reduction of the 50 percent rating just as it would a claim for an increased rating. The RO focused on what the evidence must show for specific rating percentages rather than discussing any overall improvement of the Veteran's service-connected disability and whether such improvement will be maintained under the ordinary conditions of life. Critically, sustained improvement of sinusitis is not confirmed. This is especially true as the 2017 VA OSA examination was not thorough or adequate as to the specific elements associated with a sinusitis examination. The 2017 examination also failed to adequately address the Veteran's complete symptomatology history. The examiner focused on which symptoms were "most bothersome" to the Veteran at the time of the examination. That said, the Veteran's competent and credible statements reflect that his sinusitis symptoms are the same as they were when service connection was first established, and that they continued to require emergency care as is reflected by VA treatment records. The evidence does not support the conclusion that the Veteran experienced actual improvement in his chronic sinusitis at the time of record. In light of the foregoing, the Board concludes that the Veteran's service-connected chronic sinusitis was not shown to have improved at the time of the October 2018 rating decision. The reduction of the Veteran's rating for his service-connected chronic sinusitis was improper. See 38 C.F.R. § 3.344. What remains for consideration is whether a rating in excess of 50 percent is warranted for the period from January 1, 2019 forward. As stated, a rating in excess of 50 percent is the maximum schedular rating for sinusitis. See 38 C.F.R. § 4.97, DC 6513. The record during this period again does not show other symptoms attributable to the Veteran's chronic sinusitis with allergic rhinitis and pharyngitis that are not contemplated by the rating criteria. Similarly, the record, remains negative for coexisting respiratory conditions other those he is already in receipt of separate ratings for namely, allergic rhinitis and pharyngitis. As there is no legal basis upon which to award a higher schedular rating for chronic sinusitis, the Veteran's appeal for a rating in excess of 50 percent for chronic sinusitis, from January 1, 2019 is denied. In summary, an initial compensable rating from February 28, 2013, to September 1, 2015, is denied; a rating of 50 percent but no higher from September 1, 2015, to September 1, 2016, is granted; a rating in excess of 50 percent from September 1, 2015, to January 1, 2019 is denied; a 50 percent rating from January 1, 2019, is restored; and a rating in excess of 50 percent from January 1, 2019 is denied for the Veteran's chronic sinusitis. REASONS FOR REMAND 10. Entitlement to service connection for bilateral leg disability, to include leg cramping. This matter was remanded for a nexus opinion. In March 2021, a VA examiner opined that service connection for the Veteran's claimed disability was not warranted. In so doing, the examiner indicated the Veteran's "bilateral knee strain and musculoskeletal disorder lower extremities appears to be [a] vague musculoskeletal disorder and I am unable to find a definitive nexus to service." This opinion is insufficient as it fails to provide a rationale or to address the relevant lay and medical evidence of record. A remand is warranted for an addendum. Moreover, an opinion as to secondary service connection should be obtained addressing whether the Veteran's service-connected disabilities aggravate his condition. 11. Entitlement to a TDIU. The issue of TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). In the present case, as discussed above, VA examinations and treatment records indicate that the Veteran's service-connected disabilities functionally impact his ability to work. That said, the claims file is currently negative for a detailed accounting of the Veteran's work history throughout the period on appeal. Such an accounting is critical as the record indicates the Veteran has been unemployed or employed temporarily/part-time for portions of the appeal period. Given the above, remand is required to obtain the Veteran's employment history. The matters are REMANDED for the following action: 1. Obtain a complete post service employment and education history of the Veteran. The employment history should indicate the type of position, whether any position held was full time or part time (including hours per week worked if part time) and the wages earned. Any employment accommodations should be described in detail, to include employment with VA. 2. Obtain an addendum opinion from a VA physician, or other appropriate medical professional if a physician is not available and the examiner's qualifications are adequately identified, addressing whether the Veteran has bilateral leg disabilities, manifesting currently or for any identified period of time during the appeal, that: (a.) are at least as likely as not related to active service. (b.) is proximately due to a service-connected disability(ies) or symptoms or treatment/medications related thereto. (c.) underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability(ies) or symptoms or treatment/medications related thereto. (d.) The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. Any additional examinations or testing necessary for an adequate opinion should be conducted. A complete rationale for the opinions must be provided. If the VA examiner is unable provide an opinion without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.