Citation Nr: 22010489 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 16-32 417 DATE: February 23, 2022 ORDER Entitlement to an evaluation in excess of 30 percent for chronic sinusitis is denied. FINDING OF FACT The Veteran's chronic sinusitis is not manifested by chronic osteomyelitis following radical surgery or by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 30 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14.14 4.97, Diagnostic Code 6512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from May 1997 to May 2001. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated November 2015 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In October 2018, May 2021, and September 2021, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has been returned to the Board for further adjudication. Increased Rating Chronic Sinusitis A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran contends that his chronic sinusitis is more severely disabling than represented by the currently assigned 30 percent rating. The period on appeal begins on January 13, 2015, the date the Veteran was awarded service connection. The Veteran's chronic sinusitis is currently rated under Diagnostic Code 6512, which evaluates impairment from chronic frontal sinusitis. 38 C.F.R. § 4.97. Under the General Rating Formula for Sinusitis, which includes Diagnostic Code 6512, a 30 percent rating is warranted for 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 is warranted 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, General Rating Formula for Sinusitis. On VA examination in August 2015, the Veteran's symptoms included headaches, tenderness of affected sinus, purulent discharge, and crusting. His sinusitis was noted to be manifested by six non-incapacitating episodes over the past 12 months, but not by incapacitating episodes. There was no history of sinus surgery. In a December 2015 Notice of Disagreement (NOD), the Veteran wrote, My condition has become significantly worse since my diagnosis when I was honorably discharged from the military in 2001. In February 2009, I underwent surgery to correct a deviated septum, this surgery required me to be out of work for four weeks...Although my septum is much straighter now, without blockage, however, my sinus issues persist and continue to impact my quality of life both personally and professionally. My ongoing symptoms consist of frequent sniffling, watery and itchy eyes, itching of the back of the throat area as well as post-nasal drip. Sinus headaches are also a frequent occurrence which can happen multiple times a month (six plus times). Lastly, very little environmental changes can have a negative impact on my sinus issues. I never had these issues prior to my military service, the constant deploying abroad and exposure to different climates, chemicals and environments are to blame. In a July 2016 Form 9, the Veteran wrote, My condition has not improved, but has deteriorated and I continue to experience sinus headaches with more than 10 incapacitating episodes a year. I continuously have allergic reactions to things like pollen, dander, and environmental changes in the atmosphere. I also experience sinus pain, purulent discharge, and crusting inside my nasal cavity and passageway regularly throughout the year. Most of my treatment is over the counter and natural food sources in an attempt to alleviate my pain and discomfort. An October 2018 progress note stated that the Veteran did not have sinus tenderness. On VA examination in May 2019, the Veteran reported symptoms of chronic nasal congestion, intermittent purulent discharge, headaches, intermittent sinus pain, and tenderness. Other symptoms included bilateral sinus pain, maxillary sinuses, and frontal headaches described as throbbing pain occurring frequently during allergy season treated with over-the-counter Claritin and Tylenol. He had clear rhinorrhea intermittently described with yellowish purulent discharge. Seasonal allergies resulted in sneezing and clear discharge. His sinusitis was noted to be manifested by seven or more non-incapacitating episodes over the past 12 months, but not by incapacitating episodes. There was no history of sinus surgery. A scan of the Veteran's sinuses showed no evidence of paranasal sinus opacification to suggest sinusitis. In a January 2020 radiology report, the Veteran had mild mucosal thickening in the right frontal sinus. The right frontoethmoidal junction was partially opacified. The left frontal sinuses and frontoethmoidal junction were clear. There was mild mucosal thickening in the ethmoid air cells. The lamina papyracea were intact. The ethmoid roofs were symmetric. There were Keros Type 2 olfactory grooves. The anterior ethmoidal arteries/notches about the fovea ethmoidalis, without surrounding pneumatized supraorbital air cells. The sphenoid and sphenoethmoidal recesses were clear. There was a sellar variant of the sphenoid sinus. There was no Onodi cell. The carotid canals were well covered by bone. Sphenoid sinus septations inserted on the bony covering of the carotid canals bilaterally. Optic canals were well covered by bone. A January 2020 imaging report showed that the Veteran had mild mucosal thickening in the right frontal sinuses and frontoethmoidal junction. In a February 2020 ENT note, the Veteran reported experiencing sinus pressure, headaches, clear-green nasal discharge, and crusting. He described headaches as pressure around the eyes and nose. They were frequent, several per month. He noted that his symptoms had worsened over the years. He felt his nose and sinuses blew up when he was exposed to certain smells or environmental triggers. In a March 2020 medical treatment record, the Veteran was seen for nasal congestion, sinus pressure, and headaches. He continued to have thick nasal discharge. A CT scan of the sinus was not overly impressive for sinus disease. The Veteran gave a history of symptom exacerbation with certain smells and triggers. His nasal symptoms could represent an allergy etiology. Allergy testing was recommended. The physician noted that sinus findings were unlikely to be responsible for his recurrent headaches. On VA examination in June 2020, the Veteran's symptoms included headaches. His sinusitis was noted to be manifested by one non-incapacitating episode over the past 12 months, but not by incapacitating episodes. A septorhinoplasty was performed on January 29, 2009 to correct a deviated nasal septum. In a March 2021 neurology note, the Veteran reported chronic headaches. They occurred three to four times per week. On VA examination in March 2021, the VA examiner noted that the baseline severity of his chronic sinusitis could not be determined. On VA examination in June 2021, the VA examiner noted that it was less likely than not that an increase in the Veteran's sinus symptoms were caused by sinusitis prior to May 29, 2019. Specifically, the VA examiner noted that the Veteran may have had symptoms suggestive of chronic sinusitis but that there was not objective evidence to support the diagnosis. On VA examination in October 2021, the VA examiner noted that the Veteran's chronic sinusitis did not manifest in capacitating episodes of three or more per year, lasting four to six weeks in duration. The Veteran acknowledged improvement following septorhinoplasty in 2020; he reported severity was worse prior to his surgery, and that his symptoms manifested with ten sinus headaches per year, sinus infections of more than seven or more over twelve months, and without prolonged episodes nor incapacitating episodes. Based on the foregoing, the weight of the persuasive evidence is against finding that the Veteran's chronic sinusitis was manifested by chronic osteomyelitis following radical surgery or by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries at any time during the period on appeal. In this regard, the criteria for a higher rating require showing of a history of radical or repeated surgeries, in addition to the symptoms listed above. As noted above, the Veteran had a septorhinoplasty in 2009. However, this was the only surgery that he underwent; he did not have repeated surgeries. Additionally, while he had a septorhinoplasty, his chronic sinusitis was not manifested by chronic osteomyelitis following radical surgery. The Board notes that the Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, supra. The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for higher ratings have been met. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has considered whether a staged rating under Hart v. Mansfield, supra, is warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning additional staged ratings is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, supra. Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has alleged that he is unable to secure and maintain substantially gainful employment. Moreover, the Veteran's current employment status is not clear from the record. As such, a Rice claim is not raised. Accordingly, the Board finds that the evidence is against the assignment of a rating in excess of 30 percent at any time during the period on appeal for his chronic sinusitis, and to that extent the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.