Citation Nr: 22014255 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-08 072 DATE: March 11, 2022 ORDER Entitlement to an initial rating in excess of 30 percent for chronic sinusitis is denied. FINDING OF FACT The Veteran's chronic sinusitis did not require radical surgery with chronic osteomyelitis, nor was it manifested 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 an initial rating in excess of 30 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6513 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty training (ADT) in the United States Army National Guard from June 2004 to December 2004 and in addition to various other periods between 2004 and 2012. In an April 2019 Board decision, the claims for an initial rating in excess of 30 percent for chronic sinusitis and service connection for a low back disability were denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 order, the Court vacated the Board's decision and remanded the issues pursuant to a Joint Motion for Remand (JMR). In a May 2020 statement, the Veteran contended that the March 2015 and January 2017 VA examinations are inadequate because the examiner did not consider whether the Veteran's symptoms were "near constant." However, in each of these examinations, the Veteran's reports of symptoms, their progression over time, and related treatment were documented by the examiner. Additionally, it is the adjudicator that determines what rating is warranted. Accordingly, the Board finds that these examinations are adequate, and VA has fulfilled the duty to assist. In a November 2021 rating decision, service connection for a low back disability, characterized as status post lumbar L5-S1 laminectomy/discectomy was granted. This decision represents a full grant of the benefit sought, and accordingly this issue is no longer on appeal. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In the March 2015 rating decision currently on appeal, the Veteran was granted service connection for chronic sinusitis and assigned a noncompensable rating, effective February 20, 2014. In a January 2017 rating decision, the Veteran was granted a 30 percent rating effective February 20, 2014. The Veteran contends that she is entitled to an initial disability rating in excess of 30 percent for her chronic sinusitis evaluated under DC 6513. 38 C.F.R. § 4.97, DC 6513. She alternatively contends that she is entitled to a staged rating from February 2015, which she states is when her symptoms of sinusitis became nearly constant. 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 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. Id. Entitlement to an initial rating in excess of 30 percent for chronic sinusitis The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of an initial increased rating in excess of 30 percent for chronic sinusitis. The reasons follow. The evidence shows that the Veteran's chronic sinusitis did not require radical surgery with chronic osteomyelitis and is not manifested by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, to warrant a 50 percent rating. Rather, the Veteran's sinusitis is manifested by episodes of sinusitis, headaches, and pain and tenderness of the affected sinus, five non-incapacitating episodes of sinusitis in the last 12 months, and three or more incapacitating episodes of sinusitis in the past 12 months, as documented in the June 2021 VA examination report. The evidence shows that the Veteran underwent three sinus surgeries in April 2006, December 2006, and January 2009; however, chronic osteomyelitis did not occur following the surgeries, and has not otherwise been diagnosed. In the March 2015 VA examination report, the examiner documented that the Veteran reported that her sinus infections are greatly reduced now, to approximately once per year, and stated her last one was in December 2014. She also stated when she has a sinus infection, she will have sinus pressure and fatigue, but is otherwise doing much better since her surgeries. At the time of the examination, the Veteran denied findings and signs or symptoms attributable to chronic sinusitis, and denied experiencing either non-incapacitating or incapacitating episodes of sinusitis in the past 12 months. In the January 2017 VA examination report, examiner documented the Veteran reported that since her last review of her sinus disorder, she had had multiple sinus infections. Although the Veteran reported episodes of sinusitis, she denied experiencing headaches, pain, tenderness, purulent discharge, or crusting. She reported seven or more non-incapacitating episodes of sinusitis in the last 12 months, and three or more incapacitating episodes of sinusitis requiring antibiotics in the past 12 months. The Veteran also reported that due to her attending so many medical appointments, she called out sick four times in the last year just for the sinus infections and allergy flare ups. In the November 2020 JMR, the Veteran and the Secretary of VA (parties) agreed that the Board should consider whether private treatment records support that the Veteran's chronic sinusitis is manifested by near constant sinusitis, and whether these symptoms support a staged rating. In various private treatment records, the Veteran has regularly complained of constant nasal discharge. For example, in a February 2015 private treatment record, the Veteran reported near constant nasal congestion for the last two months. The Veteran continued to complain of severe nasal congestion when she received private treatment in May 2015, July 2015, September 2015, July 2016, December 2016, February 2017, January 2018, and February 2020. In a December 2016 private treatment record, the examiner documented that the Veteran reported that her recurrent sinusitis was stable. These records support a finding of near constant sinusitis. These same records show that the Veteran regularly complained of headaches. For example, although the Veteran denied headaches at the time of the April 2015 private treatment, she complained of headaches at the time of private treatment dated in May 2015, July 2015, September 2015, July 2016, February 2017, January 2018, February 2020, and in the June 2021 VA examination. These records support a finding of near constant sinusitis characterized by headaches. However, the record does not support that the Veteran's near constant sinusitis characterized by headaches, pain and tenderness of affected sinus was also manifested by purulent discharge or crusting after repeated surgeries, which are the criteria necessary for a 50 percent rating. For the 50 percent rating, the evidence must show near constant sinusitis that is manifested by each of those listed criteria, due to the use of the word "and." The Diagnostic Code provide that either purulent discharge or crusting can be used to satisfy the final clause of the rating criteria, neither of which have been shown by the evidence of record throughout the appeal period. In the instant case, the Veteran was found to be negative for severe facial pain in private treatment records from May 2015, July 2015, September 2015, July 2016, December 2016, February 2017, January 2018, and February 2020. The Veteran also denied sinus pain at the times of the March 2015 and January 2017 VA examinations, although she reported pain in the June 2021 VA examination. These records weigh against a finding of tenderness of the affected sinus, and support pain of the affected sinus as of the June 2021 VA examination. Despite regular complaints of headaches, and the finding of pain of the affected sinus within the June 2021 VA examination report, the record does not support complaints or findings of purulent discharge or crusting after repeated surgeries. In a February 2017 statement, the Veteran contended that she is entitled to a 50 percent rating due to her three documented surgeries. The record does not otherwise support a finding of chronic osteomyelitis. The record also does not support a finding that the Veteran has purulent discharge or crusting, and the June 2021 VA examination report shows that the examiner did not check that the Veteran exhibited those symptoms. Accordingly, the Veteran's symptoms related to her sinusitis do not support all of the criteria for an initial 50 percent rating for chronic sinusitis for any part of the appeal period. Thus, a staged rating or ratings are not warranted. The Veteran has submitted several statements in connection with claims for other disabilities, however, these statements do not support that the Veteran's chronic sinusitis resulted in either radical surgery with chronic osteomyelitis or by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial rating in excess of 30 percent for chronic sinusitis is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.