Citation Nr: 22051143 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 17-22 412A DATE: September 8, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for sinusitis is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's sinusitis was manifested by, at worst, 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. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 10 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.2, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1984 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision that was issued by a Department of Veterans Affairs (VA) Regional Office which is the Agency of Original Jurisdiction (AOJ). In February 2016, the Veteran and her former spouse provided testimony before a Decision Review Officer. Then, in June 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. Transcripts of both hearings are associated with the record. Addressing the relevant procedural history, the claim was previously before the Board in March of 2022. At that time, it was remanded for additional development, to specifically include making efforts to obtain any outstanding VA or private treatment records and affording the Veteran a new VA examination. The claim has now been returned to the Board for appellate review. Entitlement to a disability rating in excess of 10 percent for sinusitis is denied. The Veteran contends that her service-connected sinusitis is more severe than what is reflected by her currently assigned disability rating. The Veteran's sinusitis is currently evaluated as 10 percent throughout the entire period on appeal under Diagnostic Code 6513 which evaluates maxillary chronic sinusitis. Under Diagnostic Code 6513, a 10 percent rating is assigned 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 rating is assigned 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 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 regulations stipulate that an incapacitating episode of sinusitis is one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513, Note 1. Based on the cumulative evidence of record, the Board finds that a rating in excess of 10 percent for sinusitis is not warranted. A thorough review, including of lay evidence submitted by the Veteran, treatment records, and VA examination reports, simply does not show evidence of radical surgery with chronic osteomyelitis; near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries; 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 during the appeal period. For example, the Veteran underwent a VA examination for her sinusitis in August 2016. At that time, the examiner noted her chronic maxillary and ethmoid sinusitis had progressed to pansinusitis. She was noted to have symptoms of episodes of sinusitis, pain, headaches, and tenderness. She was endorsed with having two non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting within the prior twelve months, but no incapacitating episodes. In similar fashion, the June 2022 VA examiner detailed that the Veteran has, "frontal, ethmoid, sphenoid and maxillary sinuses [that] are all well aerated and clear. No osseous abnormalities are noted." It was also described in the examination report that the Veteran experienced one non-incapacitating episode of sinusitis within the prior twelve months with no incapacitating episodes. Further, while it was noted that the Veteran had a history of surgery, including one that took place in 2004, that surgery was endoscopic, not radical, and chronic osteomyelitis was not indicated. VA treatment records that are of record similarly note ongoing complaints of and treatment related to sinusitis but do not document evidence that would justify a higher rating. This includes a January 2018 notation of a yellow-green nasal drainage that had been present for three to four weeks, with facial pain and teeth pain, and a diagnosis of acute sinusitis. In February 2018, the Veteran reported just finishing a series of amoxicillin, but stated that she feels like she has a sinus infection all the time. She reported facial soreness and teeth pain at that time, and she continued with Flonase daily, Zyrtec, and did sinus rinses. In March 2018, the Veteran underwent comparative CT scans of her sinuses, which showed increased mucous. In March of 2020, the Veteran, "currently has sinus drainage but no cough". In September of 2020, it was noted that the Veteran, "has no fever, chills, ear problems, nose problems, oral problems, sore throat, neck problems, chest pain, shortness of breath, cough, sputum production". In contrast with demonstrating a worsening, May 2022 notations indicate that a comparison of 2022 CT results with "3/23/2018 8/30/2016, numerous CT head exams" yielded, "[f]indings: Postsurgical changes of maxillary antrostomy and ethmoidectomy and turbinate reduction demonstrated as seen 2018." A May 2022 notation from the following day notes that the Veteran would be informed of her, "extensive postsurgical changes of the paranasal sinuses, mucoperiosteal thickening is increased in the left posterior ethmoid sinus, stable in the left maxillary sinus and significantly improved in the right maxillary sinus". The report of a VA examination conducted in May 2022 notes that the Veteran had one non-incapacitating episodes of sinusitis in the past 12 months. There were no incapacitating episodes requiring antibiotics in the past 12 months. She had had endoscopic surgery, but not radical surgery. The Board is cognizant that the Veteran is competent to attest to things she experiences through his senses, such as drainage. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The statements from the Veteran are competent evidence to report her sinusitis symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). However, the most probative evidence of record does not indicate that the assignment of any increased evaluations is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds more probative opinions rendered by VA medical professionals given their expertise in evaluating sinus disorders and the fact that those findings align with the medical evidence of record. Based on the foregoing discussion, the evidence of record showed no distinct period of time during the appeal period when the Veteran's service-connected sinusitis varied to such an extent that a rating greater than the ratings currently assigned would be warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching this decision the Board has considered the doctrine of reasonable doubt; however, as the substantial weight of the evidence is against the assignment of an increased evaluation for the Veteran's service-connected sinusitis, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.