Citation Nr: 23001089 Decision Date: 01/09/23 Archive Date: 01/09/23 DOCKET NO. 18-14 935 DATE: January 9, 2023 ORDER Entitlement to an increased rating greater than 0 percent for status post sinus surgery is denied. FINDING OF FACT During the entire period on appeal, the Veteran's service-connected status post sinus surgery has not resulted one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting for four to six weeks) antibiotic treatment, or more than 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 disability rating in excess of 0 percent, status post sinus surgery, has not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6513. 4.7, 4.97. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 2003 to March 2008, including service during the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office. The Veteran was scheduled for a hearing in November 2021; however, the Veteran withdrew his request for a hearing in a statement received in November 2022. The Board notes that additional evidence was received after the issuance of the statement of the case, but that the Veteran's representative waived consideration by the RO of any documents submitted after the last adjudication of the issue addressed herein. Entitlement to increase rating for status post sinus surgery is denied. The Veteran is currently rated at 0 percent disabling, from March 11, 2008, for his status post sinus surgery, and is seeking a rating in excess of 0 percent. The Board finds that a rating in excess of 0 percent for the Veteran's status post sinus surgery is not warranted. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's status post sinus surgery is rated under Diagnostic Code 6513, 38 C.F.R. § 4.97, utilizing the General Rating Formula for Sinusitis. Under this general formula, ratings are assigned according to the manifestation of symptoms. A non-compensatory rating (0 percent rating) is afforded when the sinus condition is detected by X-ray only. A 10 percent rating requires 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. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Purulent is defined as "containing, consisting of, or forming pus." Medical Dictionary for the Health Professions and Nursing. 2012. Farlex 2 Nov. 2022 https://medical-dictionary.thefreedictionary.com/purulent. Discharge is defined as "that which is emitted or evacuated, as an excretion or a secretion." Medical Dictionary for the Health Professions and Nursing. 2012. Farlex 2 Nov. 2022 https://medical-dictionary.thefreedictionary.com/discharge. Crusting is defined as "a hard outer layer or covering; a scab." Medical Dictionary for the Health Professions and Nursing. 2012. Farlex 2 Nov. 2022 https://medical-dictionary.thefreedictionary.com/crusting. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran contends that his compensatory rating for his service-connected status post sinus surgery should be rated higher than the currently assigned rating. See VA 21-526b, Veteran Supplemental Claim (March 2017). As noted above, this appeal arises from an application for an increased compensatory rating dated March 2017. Therefore, the period on review is generally from the date of filing the request for an increased rating, here March 2017, until the present, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); see also 38 C.F.R. § 3.400(o)(1); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). However, a one-year look-back period is provided when the facts find that an earlier date, not to exceed one year, should be awarded to a Veteran filing an increased rating claim. See 38 U.S.C. § 5110(g); see also 38 C.F.R. § 3.400(o)(2). The Veteran was afforded a VA examination for his status post sinus surgery in July 2017. At that time, the Veteran reported poor airflow on the left side nostril, continued congestion, poor breathing, pain, some swelling and tenderness around the bridge of the nose, and indicated that repeat surgery was planned. He further reported that he was being treated with Ipratropium, Montelukast, and Flonase. The examiner diagnosed the Veteran with status post sinus surgery and indicated that he had sinus tenderness and mild left nare obstruction. The Veteran's treatment records indicate that the Veteran had a CT scan in June 2021. The results of the CT scan indicated that the Veteran's sinuses showed "[m]ild mucous thickening within the medial left frontal sinus, and throughout the ethmoid air cells. Otherwise, patient's nose is grossly patent. May need to rinse sinuses and use nasal sprays such as Atrovent to decrease congestion and Flonase to decrease inflammation." The Veteran's treatment records contain a November 2018 medical summary from Dr. A.B., Neurology Clinic, which indicates that the Veteran suffers from a chronic, intractable illness, which is headaches. However, the summary further indicates that the Veteran "has had extensive testing to look for any cause of his [headache] condition" including "CT sinuses. These all showed normal structures of the [] sinuses, indicating no structural cause of the headaches." The Board finds that the Veteran is not entitled to a compensable rating of 10 percent. In this regard, there is no indication from the record that the Veteran experiences either incapacitating or even non-incapacitating episodes for his sinus condition. Although the Veteran does experience headaches, the record indicates that the Veteran's sinuses are not the cause of his headaches. The Board acknowledges that the Veteran experiences pain, and is prescribed prescription medications by a Physician, however, the Board notes that the Veteran does not experience purulent discharge or crusting. (Continued on the next page) Consideration has been given to assigning staged ratings, however, at no time during the period on appeal has the Veteran's sinus disability warranted a higher schedular rating than that assigned. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that entitlement to an increased rating in excess of 0 percent for the Veteran's status post sinus surgery is not warranted. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wolfe, Leta A. 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.