Citation Nr: 22017508 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-15 505 DATE: March 25, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for sinusitis prior to February 11, 2020, and in excess of 30 percent from February 11, 2020 to July 21, 2021, is denied. Entitlement to a compensable rating for costochondritis, prior to February 11, 2020, and in excess of 30 percent, thereafter, is denied. FINDINGS OF FACT 1. The Veteran's service-connected sinusitis has not manifested with nasal polyps, and the Veteran has not undergone any sinus surgery at any time during the appeal period. 2. For the period from February 11, 2020 to July 21, 2021, the Veteran's condition was not manifested by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 3. During the period from November 13, 2013 to February 11, 2020, the evidence reflects that the Veteran's service-connected costochondritis, affecting muscle group XIX, was not manifested with moderate muscle injury; since February 11, 2020, the condition has not manifested with severe muscle injury. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for sinusitis prior to February 11, 2020, and in excess of 30 percent from February 11, 2020 to July 21, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6510, 6522. 2. The criteria for a compensable rating for costochondritis, prior to February 11, 2020, and in excess of 30 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.56, 4.73, DC 5319, 5399-5321. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from September 1980 to August 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board and remanded in July 2019 (for further development) and in March 2021 (for issuance of a supplemental statement of the case (SSOC)). A review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter has been returned to the Board for further appellate proceedings. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to an initial rating in excess of 10 percent for sinusitis prior to February 11, 2020, and in excess of 30 percent from February 11, 2020 to July 21, 2021. The Veteran asserts increased ratings are warranted for his service-connected sinusitis in excess of 10 percent prior to February 11, 2020, and in excess of 30 percent for the period from February 11, 2020 and July 21, 2021. Historically, on November 13, 2013, VA received an informal claim for service connection for allergies. In an October 2014 rating decision, the RO granted service connection for the Veteran's sinusitis with a 10 percent disability rating under DC 6522, for allergic rhinitis, effective November 13, 2013. In a September 2020 rating decision, the condition was evaluated under DC 6510, for chronic pansinusitis, and granted a rating increase to 30 percent, effective February 11, 2020. In a September 2021 rating decision, a 50 percent rating was granted under DC 6510, effective July 21, 2021. As the Veteran is in receipt of the highest schedular rating beginning July 21, 2021, this period will not be discussed in the decision herein. Under DC 6522, allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side, warrants a 10 percent rating. A maximum 30 percent rating is assigned when polyps are present. 38 C.F.R. § 4.97, DC 6522. Sinusitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis. Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6511 pertains to chronic ethmoid sinusitis; 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. Under the general rating formula for sinusitis, a 10 percent evaluation 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. 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. As the General Rating Formula for sinusitis contemplates symptoms which are separate from those listed in DC 6522, a separate rating for sinusitis may be assigned in addition to the current 10 percent rating already in place for allergic rhinitis without violating the provisions of 38 C.F.R. § 4.14. Here, the Veteran was afforded a VA examination in July 2014. The Veteran reported that she was treated for allergies and sinuses during service, and has been treated since service by various primary care providers with oral medication and nasal sprays. She reported her current symptoms included itchy ears, ear fullness, nasal congestion, runny nose, itchy eyes, husky voice, headache, and pressure. The Veteran was diagnosed with allergic rhinitis; no other diagnosed conditions of the sinus, nose, throat, larynx, or pharynx were noted. The examiner indicated that there was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. No nasal polyps were noted. Based on examination and review of the Veterans service and VA treatment records, the Veteran was diagnosed with allergic rhinitis. A January 2015 VA examination report notes that the Veteran was seen for cough, congestion, and left-sided chronic frontal facial pain. She was diagnosed with influenza and chronic sinusitis. An April 2015 examination report notes mild sinus tender to palpation. The Veteran was diagnosed with bronchitis and sinusitis. In February 2016, the Veteran was seen in the emergency department for sinus drainage, sinus pressure, and sore throat. She was diagnosed with acute sinusitis. In response to the July 2019 Board remand, the Veteran was afforded a VA examination in February 2020. The Veteran was diagnosed with chronic sinusitis, pansinusitis. No other diagnosis was noted. The examiner indicated that the Veteran had headaches, pain of affected sinus, tenderness of affected sinus, and purulent discharge due to chronic sinusitis. The Veteran reported that she had over 7 non-incapacitating episodes characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The examiner noted that the VA established diagnosis of sinusitis is a change and is a progression of the previous diagnosis manifested by frequency of acute illnesses, hoarseness, and dizziness. The examiner also noted that the Veteran's sinusitis causes functional/occupational impact of low productivity due to the inability to concentrate or stay focused on tasks and excessive abuse of time/attendance policies due to missed days of work. In July 2021, the Veteran was afforded another VA examination. The diagnosis of sinusitis was confirmed. The examiner indicated that the Veteran's condition has progressed/worsened. The Veteran's current symptoms were noted as nasal congestion, cough, sinus pressure and tenderness to palpation, itchy and watery eyes with increased dryness, sinus headaches, drainage, and cobblestoning. The examiner indicated that the Veteran's maxillary sinus was in near constant sinusitis, manifested by headaches, pain of affected sinus, tenderness of affected sinus, and purulent discharge; with the episodes occurring over 7 times over the past 12 months. In regard to a rating in excess of 10 percent prior to February 11, 2020, the Board finds that the medical evidence of record shows that the Veteran's sinus condition manifested with allergic rhinitis without nasal polyps. Accordingly, in the absence of nasal polyps, a rating in excess of 10 percent is not warranted for allergic rhinitis under DC 6522. 38 C.F.R. § 4.97, DC 6522. Therefore, a rating in excess of 10 percent prior to February 11, 2020 is denied. In regard to a rating in excess of 30 percent from February 11, 2020 to July 21, 2021, the Board finds that the medical evidence of record does not demonstrate that the Veteran's sinusitis has manifested with near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge. Accordingly, in absence of evidence reflecting that the Veteran has undergone sinus surgery, a rating in excess of 30 percent is not warranted under DC 6510. 38 C.F.R. § 4.97, DC 6510. Therefore, a rating in excess of 30 percent for the period from February 11, 2020 to July 21, 2021 is denied. 2. Entitlement to a compensable rating for costochondritis from November 13, 2013 to February 11, 2020, and in excess of 30 percent thereafter. The Veteran asserts a compensable rating for his service-connected costochondritis is warranted for the period prior to February 11, 2020, and in excess of 30 percent thereafter. The Board notes, for the period prior to February 11, 2020, the Veteran's condition was evaluated under hyphenated DC 5399-5321; and from February 11, 2020, under DC 5319. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. According to the policy in the Rating Schedule, when a disability is not specifically listed, the diagnostic code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27. For example, DC 5399 is used to identify unlisted muscle injuries. Costochondritis is not listed in the rating schedule. Where a particular disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical area and symptomatology, are closely analogous. 38 C.F.R. §§ 4.20, 4.27; Lendenmann v. Principi, 3 Vet. App. 345, 349-50 (1992). Here, because there is no specific diagnostic code for costochondritis, the Veteran's condition was initially rated by analogy under Diagnostic Code 5399-5321, which governs the muscles of respiration. Under Diagnostic Code 5321, which applies to the thoracic muscle group XXI, a noncompensable (zero percent) disability rating is assigned for slight muscle disability, a 10 percent rating is assigned for moderate disability, a 20 percent rating is assigned for a moderately severe or severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5321. DC 5319 rates muscle group XIX relating to muscles of the abdominal wall, including the external and internal oblique. Under Diagnostic Code 5319, muscle group XIX, a noncompensable rating is assigned for slight muscle disability, a 10 percent rating is assigned for moderate muscle disability, a 30 percent rating is assigned for moderately severe muscle disability, and a maximum 50 percent rating is assigned for severe muscle disability. The factors for determining whether muscle disability is slight, moderate, or severe are particular to the evaluation of healed wounds, such as those from gunshots or other missiles. 38 C.F.R. §§ 4.55, 4.56. A slight disability of muscles is defined as a simple wound of muscle without debridement or infection. Service department records will show a superficial wound with brief treatment and return to duty healing with good functional results and no cardinal signs or symptoms of muscle disability. There will be minimal scarring and no evidence of facial defect, atrophy, or impaired tonus. Also, no impairment of function or retained metallic fragments retained will be present. 38 C.F.R. § 4.56 (d)(1). A moderate disability of muscles is defined as a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Objective findings will include entrance and (if present) exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(2). A moderately severe disability of muscles is defined as a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. Service department records should show hospitalization for a prolonged period for treatment of wound. Objective findings will include entrance and (if present) exit scars indicating track of missile through one or more muscle groups along with indications on palpation of exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone and loss of power or lowered threshold of fatigue when compared to the sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d)(3). Severe disability of the muscles is defined as a through and through or deep penetrating wound due to high-velocity missile, or large, or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, sloughing of soft parts, and intramuscular binding and scarring. Objective findings will include ragged, depressed, and adherent scars; loss of deep fascia or muscle substance or soft flabby muscles in the wound area; and severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side. 38 C.F.R. § 4.56 (d)(4). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute multiple scattered foreign bodies; (b) adhesion of the scar; (c) diminished muscle excitability on electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile; or (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4). Finally, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56 (a). For VA rating purposes, the cardinal signs and symptoms of a muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). In July 2014, the Veteran was afforded a VA examination. Her diagnosis of costochondritis was confirmed. The examination report reflects that the Veteran reported having intermittent periods of chest wall pain associated with increase heart rate, anxiety, or shortness of breath. The examiner did not indicate any muscle injury. In response to the July 2019 Board remand, the Veteran was afforded another VA examination in February 2020. The examiner confirmed the diagnosis of costochondritis. The examiner indicated that the Veteran had a muscle injury affecting Group XIX (bilateral muscles of the abdominal wall: rectus abdominis, external oblique, internal obliques, transversalis, quadratus lumborum). Consistent weakness and fatigue and/or pain was noted. All muscle strength was normal. The examiner stated that the Veteran's costochondritis had progressed to include increased pain, congestion, and shortness of breath. In July 2021, the Veteran was afforded another VA examination. The diagnosis of costochondritis was confirmed. The examiner indicated that the Veteran's condition had progressed/worsened manifesting with intermittent chest pain, difficulty taking a deep breath, anxiety causing increased work of breath, and intermittent muscle spasms. The Veteran reported that she frequently has shortness of breath, sharp pains with deep inhales especially after showers, and thoracic spine pain with increased work of breath. The examiner noted that the Veteran used a cane or walking stick, and walker for longer activities due to her costochondritis. The examiner stated that the Veteran would have difficulty with pushing, pulling, bending, squatting, lifting, carrying, prolonged standing or walking, and other strenuous activities in certain work environments. After consideration of the competent lay and medical evidence, the Board finds that the Veteran's costochondritis disability more closely approximated a noncompensable rating during the period from November 13, 2013 to February 11, 2020. Although the Veteran reported chest pain with increase heart rate, anxiety, or shortness of breath in her July 2014 VA examination, she also reported that the pain was intermittent and feels like a "bruise." In addition, the examiner did not find any of the cardinal signs and symptoms of a muscle injury, such as evidence demonstrating loss of power, lowered threshold of fatigue, impairment of coordination, or uncertainty of movement. The Board also notes that VA treatment records show the Veteran presented to the emergency room in April 2015 with a complaint of right side rib pain; however, she was diagnosed with sinusitis, bronchitis, and back pain. Moreover, in a follow-up visit, the Veteran reported that her rib pain had decreased from a "10" to a "4." Therefore, based on these findings, the Board concludes a compensable rating is not warranted as there is no factually ascertainable evidence that shows the Veteran's costochondritis was no more than "slight" in severity prior to February 11, 2020. (Continued on the next page) Additionally, the Board finds that the Veteran's disability picture more closely approximates a 30 percent rating from February 11, 2020. Although the Veteran's condition manifested with consistent weakness and fatigue and pain, it has not manifested with ragged, depressed, and adherent scars; loss of deep fascia or muscle substance or soft flabby muscles in the wound area; nor is there evidence of severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side. As such, the claim for a rating in excess of 30 percent rating from February 11, 2020 must be denied. K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.