Citation Nr: 22013845 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-45 221 DATE: March 10, 2022 ORDER Entitlement to a compensable rating for chronic sinusitis is denied. FINDING OF FACT The Veteran's sinus condition is not manifested by incapacitating episodes or three or more non-incapacitating episodes a year. CONCLUSION OF LAW The criteria for a compensable rating for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty training (ACDUTRA) from August 1985 to December 1985 and on active duty from October 2009 to October 2010, to include overseas service in Southwest Asia. The Veteran appealed a January 2015 rating decision by the Agency of Original Jurisdiction (AOJ). In December 2018 and August 2021, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Under the General Rating Formula for Sinusitis, a noncompensable rating is warranted for sinusitis that is detected by x-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year 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 rating is warranted for three or more incapacitating episodes per year 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. An incapacitating episode means an episode that requires bed rest and treatment by a physician. A 50 percent rating is warranted for radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus and purulent discharge or crusting after repeated surgeries. The December 2014 examination report noted intermittent headaches once a month, coughing, small amounts of epistaxis or bleeding from the nose, nasal congestion, use of medication and a steroid nasal spray, no use of antibiotics, tenderness, periodic purulent discharge, no sinus surgery, and no incapacitating or non-incapacitating episodes in the past 12 months. The October 2015 examination report noted drainage down the throat and periodic headaches and nosebleeds about 3 times a month. The October 2019 examination report noted occasional rhinorrhea episodes throughout the year and use of allergy medication. The December 2019 opinion noted that the referenced emergency room visit for sinusitis was likely non-incapacitating. August 2015 treatment records noted the Veteran was following up after a sinus infection that sent him to the emergency room in July, and that antibiotics were used. An October 2019 Gulf War examination report noted the Veteran's sinusitis resolved. Here, no medical provider has found the Veteran to have an incapacitating episode for sinusitis. Even if the Veteran's emergency room visit is considered an incapacitating episode, despite no evidence that bed rest was required, the medical evidence does not note prolonged (lasting four to six weeks) antibiotic treatment. The Veteran may have been given or prescribed antibiotics during the emergency room visit. However, the evidence does not suggest the Veteran was taking antibiotics for 4 weeks or more. Nevertheless, the requirement of bed rest is not noted. Considering non-incapacitating episodes, the Veteran's emergency room visit was found to be at most non-incapacitating. However, the medical evidence does not note 3 or more non-incapacitating episodes as required for a compensable rating. Furthermore, although the Veteran has periodic headaches and discharge, the medical evidence does not note in a year period during the period on appeal sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Veteran has not provided further information about medical treatment or frequency of attacks regarding his sinusitis. According to medical providers, the Veteran's sinusitis has resolved. Therefore, a compensable rating is not warranted. In sum, the probative and competent evidence is against the claim and the benefit of the doubt doctrine is not for application. Therefore, entitlement to a compensable rating for the Veteran's sinusitis is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.