Citation Nr: 22010292 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 19-26 901 DATE: February 23, 2022 ORDER Entitlement to a rating in excess of 10 percent for chronic recurrent sinusitis is denied. REMANDED Entitlement to a rating in excess of 30 percent prior to July 1, 2020 and in excess of 10 percent thereafter for eustachian tube dysfunction with otitis media (ear condition) is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease with residual scars (knee condition) prior to June 30, 2020 and in excess of 30 percent following a temporary total rating effective August 1, 2021 is remanded. Entitlement to a rating in excess of 10 percent for lumbar degenerative disc disease (back condition) prior to June 13, 2019 and in excess of 20 percent thereafter is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran's sinusitis has manifested, at worst, as three non-incapacitating episodes within twelve months characterized by headaches, pain and purulent discharge or crusting. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training in the United States Air Force Reserve from February 1990 to July 1990 and on active duty from January 1991 to June 1991 with additional training service in the Air Force Reserve until 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2017 and December 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The May 2017 decision granted service connection for eustachian tube dysfunction and assigned a 30 percent rating effective December 19, 2016 and granted service connection for tinnitus and assigned a 10 percent rating effective the same date. The December 2017 decision continued a 10 percent rating each for sinusitis, left knee, and lumbosacral strain and denied a TDIU. In July 2019, the RO increased the lumbosacral spine rating to 20 percent, effective June 13, 2019 and granted service connection for left lower extremity radiculopathy and assigned a 10 percent rating, effective June 13, 2019. In July 2019, the RO proposed to reduce the rating for eustachian tube dysfunction to noncompensable and in April 2020 reduced the rating to 10 percent, effective July 1, 2020. In April 2021 the Veteran testified at a hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of the hearing is of record. Increased Rating For the entire rating period, the Veteran's sinusitis is rated at 10 percent under the criteria found at 38 C.F.R. § 4.97, DC 6513, under the General Rating Formula for Sinusitis. See 38 C.F.R. § 4.97. Under the General Rating Formula for Sinusitis, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted for 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 evaluation is warranted 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. A 50 percent evaluation 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. The maximum evaluation allowable under the general rating formula is 50 percent. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6513. Entitlement to a rating in excess of 10 percent for sinusitis The Veteran was granted service connection for sinusitis at a 10 percent rate in January 2011, with an effective date of April 26, 2010. In September 2017 the Veteran submitted a claim for a total disability rating based on individual unemployability that implied a claim for increased rating for already service-connected sinusitis. A VA examination was provided in November 2017. There, the Veteran reported that "she still gets sinus infections" and was constantly congested. She reported that for treatment she used nasal washes alternating with Flonase, along with daily loratadine. The VA examiner stated that there were no evaluations or treatment for acute episodes of sinusitis noted in the available medical records over the past 12 months, though ongoing treatment for chronic sinusitis symptoms were noted. In total, three non-incapacitating episodes of sinusitis, characterized by headaches, pain and purulent discharge or crusting were noted in the past 12 months, without any incapacitating episodes. No functional limitations were found due to the Veteran's sinus condition. See November 2017 C&P Exam. In December 2017 the Veteran's claim was denied by the RO, and she submitted a notice of disagreement (NOD) in February 2018. The Board has reviewed the Veteran's medical treatment records from one year earlier than the claim, beginning in September 2016. These records show continual complaint and treatment for sinusitis, but does not show any incapacitating episodes, nor does it show any surgery during the appellate period. Likewise, the Veteran's social security administration records (SSA) do not show that the Veteran has been incapacitated by her sinusitis. In June 2019 the Veteran was provided a VA examination for her sinusitis. The Veteran reported near constant sinus congestion. Non-incapacitating episodes, characterized by headaches, pain or discharge were found to occur once in the past twelve months. No incapacitating episodes were found. See June 2019 C&P Exam. The Veteran was provided a statement of the case (SOC) in July 2019 explaining the denial and the Veteran perfected her appeal in August 2019 via VA Form 9, in which she requested a hearing before a VLJ. She was provided another VA examination in September 2020. She reported having a loss of balance, loss of hearing and occasional light headaches. The symptoms of loss of balance and hearing are addressed below with the investigation of eustachian tube and ear infections. The examiner found that she had three non-incapacitating episodes in the last 12 months, but she had no incapacitating episodes that required prolonged use of antibiotic treatments. See September 2020 C&P Exam. A hearing was provided in April 2021. The Veteran testified that she took medication for her sinusitis, in the form of budesonide, Flonase and fexofenadine. She stated that these medications were not antibiotics, though she believed that she had been on unspecified antibiotics. At the hearing, the undersigned VLJ noted that the Veteran was a pharmacy technician, and as such accepted the Veteran's testimony about her medications. See April 2021 Hearing Transcript. The claim is now properly before the Board. A review of the record does not show any medical evidence that her sinusitis manifested by three or four non-incapacitating episodes per year with symptoms such as headaches, pain, purulent discharge or crusting, nor does the record show that her condition was characterized by six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. For these reasons, the evidence does not support the assignment of an initial rating in excess of 10 percent for sinusitis under DC 6513. 38 C.F.R. §§ 4.3, 4.7. The Board has further considered whether the increased and initial rating appeals warrant referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. In the present case, the Veteran believes that her sinusitis is characterized by congestion, pain, hearing loss, tinnitus, loss of balance and scarring. The Board notes that the Veteran is currently service-connected for tinnitus and at the September 2020 VA examination, no scarring was found. Regarding congestion, and pain, the Board finds that these symptoms have been considered in DC 6513, which contemplates both non-incapacitating and incapacitating episodes due to headaches, pain, discharge and crusting. See DC 6513. 38 C.F.R. §§ 4.3, 4.7. Regarding the Veteran's claim that her sinusitis has caused hearing loss, the Veteran is competent to report that she has experienced such a symptom, the Board finds that the Veteran does not have the education, skills or expertise to make such a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). A careful review of the Veteran's medical record does not contain any evidence of a medical professional finding that the Veteran suffers from hearing loss due to her service-connected sinusitis. As the first prong of the Thun analysis has not been met, the Board finds that the schedular rating criteria is adequate and no extraschedular referral is warranted in this case. 38 C.F.R. § 3.321 (b)(1). REASONS FOR REMAND Entitlement to a rating in in excess of 30 percent for an ear condition prior to July 1, 2020 and in excess of 10 percent thereafter Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease with residual scars (knee condition) prior to June 30, 2020 and in excess of 30 percent following a temporary total rating effective August 1, 2021 Entitlement to a rating in excess of 10 percent for a lumbar degenerative disc disease (back condition) prior to June 13, 2019, in excess of 20 percent until September 3, 2020, and in excess of 10 percent thereafter The Veteran submitted a claim for increased rating for the ear condition in December 2016 and for other service-connected disabilities in a September 2017 claim for a TDIU. The Veteran contends that all of the above conditions on appeal have worsened since her last examinations. In June 2019 the Veteran was provided a VA examination for her ear condition. She reported ongoing problems with right ear fullness as well as eustachian tube problems and tinnitus. See June 2019 C&P Exam. The Veteran testified at her Board Hearing that she now suffers from hearing loss, pressure and an echoing sensation described as "like a tunnel in the ear." See April 2021 Hearing Transcript, p. 3. The Veteran was provided examinations in May 2017, November 2017, and December 2017. In June 2019, the Veteran was provided a VA examination for a left knee condition, in which the Veteran reported constant sharp pain and swelling with daily use, with pain walking upstairs, walking for longer than 20 minutes or standing for longer than 20 minutes. The Veteran reported that she used a cane when leaving her home. See June 2019 C&P Exam. The Veteran has since testified at her Board Hearing that her left knee condition has worsened. She testified that because of her knee she is completely unable to kneel down and that she now has to wear her knee brace all of the time. See April 2021 Hearing Transcript, p. 4. It also appears that the Veteran was assigned a 30 percent rating one year following a total knee replacement without the required re-examination. 38 C.F.R. § 4.71a, Diagnostic Code 5055 Note. In September 2020 the Veteran was provided a VA examination for her back condition. The Veteran reported straining when bending and being unable to lift more than 3-5 pounds. She reported using a cane for mobility. See September 2020 C&P Exam. She has since testified at her Board Hearing that she now uses a cane and a back brace for mobility and that she was in daily pain. The Veteran stated that she required injections in her back and tramadol for pain management. See April 2021 Hearing Transcript, pp. 5, 12. Generally, the passage of time since the most recent VA examination is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). However, when a Veteran indicates that her symptoms have increased in severity since the previous examination, a new VA examination is warranted. Accordingly, new VA examinations should be afforded to the Veteran in this case. See Snuffer, 10 Vet. App. at 403. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) The Veteran has raised the contention that she is unable to work due to her service-connected conditions, specifically her back and knee conditions. See April 2021 Hearing Transcript, see also Rice v. Shinseki, 22 Vet. App. 447 (2009). Given that the Veteran's claim of an increased rating for left knee, ear and back conditions have been remanded, the Board finds that the claim of TDIU is inextricably intertwined with the aforementioned claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, a remand is required. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and private medical treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee, post total knee replacement, and lumbar spine degenerative disc disease including lower extremity radiculopathy. The examiner(s) should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner(s) must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner(s) should identify any symptoms and social and occupational impairment due to the Veteran's service-connected conditions alone and individually. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected eustachian tube dysfunction with otitis media including any impact on hearing acuity. The examiner(s) should provide a full description of the features of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must consider the Veteran's contentions that she has polyps, tinnitus, recurring infections, dizziness and loss of balance, and loss of hearing acuity. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.