Citation Nr: 23061908 Decision Date: 11/21/23 Archive Date: 11/21/23 DOCKET NO. 19-26 167 DATE: November 21, 2023 ORDER 1. New and material evidence having been received, the claim of service connection for migraine headaches is reopened. 2. Service connection for traumatic brain injury (TBI) residuals is granted. 3. Service connection for migraine headaches is granted. 4. Service connection for vertigo is denied. 5. Service connection for posttraumatic stress disorder (PTSD) with depression is granted. 6. An initial rating in excess of 30 percent prior to September 16, 2014 for pansinusitis including headaches is denied. 7. A 50 percent rating since September 16, 2014 for pansinusitis including headaches is granted. 8. A 10 percent rating for multiple noncompensable disabilities is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has residuals on an in-service TBI. 2. The Veteran's migraine headaches had their onset during service. 3. The Veteran does not have vertigo. 4. The Veteran has PTSD due to an in-service stressor. 5. The Veteran has depression due to his PTSD symptoms. 6. Prior to September 16, 2014, the Veteran's pansinusitis including headaches resulted in non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting, but not chronic osteomyelitis or near constant sinusitis. 7. Since September 16, 2014, the Veteran's pansinusitis including headaches has resulted in near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 8. Throughout the period on appeal, the Veteran has had at least one disability rated 10 percent disabling. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI residuals are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for vertigo are not met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for PTSD with depression are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 5. Prior to September 16, 2014, the criteria for an initial rating in excess of 30 percent for pansinusitis including headaches are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6510. 6. Since September 16, 2014, the criteria for a 50 percent rating for pansinusitis including headaches are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, DC 6510. 7. The criteria for a 10 percent rating based upon multiple, noncompensable, service-connected disabilities are not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to March 1993. The case is on appeal from June 2016, November 2016, and September 2017 rating decisions. The Board notes that the November 2016 rating decision addressed reopening service connection for TBI residuals, a psychiatric disorder, and vertigo. However, the record does not show that the Veteran was mailed notification of the initial denial of service connection for TBI residuals, a psychiatric disorder, vertigo made in an August 2014 rating decision. Therefore, that rating decision was not final and these claims remain on appeal pursuant to the May 2013 claim of service connection for these conditions. 38 C.F.R. § 3.103(d). Additional evidence was received subsequent to the July 2019 statements of the case. In August 2023, the Veteran waived initial RO consideration of this evidence. See 38 C.F.R. § 20.1305(c). I. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of service connection for migraine headaches. By an August 1994 rating decision, a claim of service connection for headaches was denied. The Veteran was notified of the decision by letter later that month. Thereafter, the RO denied reopening service connection for headaches in a September 2004 rating decision. The Veteran was granted service connection for pansinusitis with sinus headaches in a May 2010 rating decision. Subsequently, he requested reopening service connection for migraine headaches in November 2011. By an October 2014 rating decision, the RO reopened the claim of service connection for migraine headaches and denied the claim on the merits. The Veteran was notified of the decision by letter later that month. Thereafter, nothing further regarding the claim was received until the present claim to reopen in August 2016. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the October 2014 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for migraine headaches is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also May 2022 Private Physician Opinion; August 2022 VA Medical Opinion. II. Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 2. Service connection for TBI residuals. 3. Service connection for migraine headaches. 4. Service connection for vertigo. The Veteran claims that he has residuals of a TBI as well as migraine headaches and vertigo due to an in-service motor vehicle accident (MVA). The service treatment records show that as a consequence of the August 1991 MVA the Veteran sustained multiple facial injuries. In a May 2013 correspondence, he reported experiencing frequent migraine headaches. During an August 2014 VA examination, he stated that during the MVA his vehicle was hit by a large truck. He also stated that he had injuries to his nose and face that required surgery. He further stated that he experienced headaches, dizziness, and short-term memory loss during service after the MVA. In August 2016, the Veteran submitted an internet article that discusses delayed memory loss, headaches, and dizziness caused by head trauma. The Veteran's service treatment records (STRs) show that he lost consciousness during an MVA in August 1991 that resulted in a gross maxillary fracture that required surgery. In March 1992, he had another surgery during service to repair the damage to his sinuses. The Veteran was discharged in January 1993 due to a physical evaluation board finding that he cannot wear protective masks due to scars caused by the MVA and subsequent surgeries. The Veteran was afforded a VA examination for the headache claim in March 2012. The examiner diagnosed him with both migraine headaches and sinus headaches. The Veteran was afforded a VA examination for the vertigo claim in August 2014. The Veteran reporting a history of having dizziness for many years. The examiner found that, although some of the Veteran's statements raise the possibility of an inner ear condition, the entire picture fails to establish such a diagnosis. The examiner concluded that nothing links the Veteran's reported dizziness to an inner ear pathology. The Veteran underwent another VA examination for the vertigo claim in October 2016. The examiner performed Videonystagmography (VNG) testing and found that vestibular testing is normal. She also performed Vestibulo-Ocular Response (VOR) testing and video Head Impulse Testing (vHIT) and found that both were basically a normal studies. She further performed Vestibular Evoked Myogenic Potential (cVEMP) testing and found that the Veteran's responses from each ear were easily obtained and the amplitude of the response was comparable ear to ear with no significant asymmetry. The examiner concluded that the Veteran does not have any vestibular dysfunction. The Veteran was afforded TBI and headache examinations in November 2016. The examiner noted TBI residuals of migraine headaches and dizziness. The examiner reported that a July 2016 brain MRI was found to show nonspecific white matter findings that could be seen as sequela of trauma given the Veteran's history. However, the examiner found that the Veteran does not have TBI residuals or headaches related to service. In May 2022, the Veteran submitted a headache disability benefit questionnaire and opinion from his private physician. The physician diagnosed the Veteran with migraine headaches. She found that these headaches very likely a direct result of the in-service MVA. She explained that the Veteran experienced the onset of migraine headaches after the MVA and that they have not changed since the history. She also explained that the Veteran has a history of TBI and concussion. The Veteran was afforded another VA examination for TBI residuals and headaches in August 2022. The examiner found that it is more likely than not that the Veteran has residuals of a TBI with migraine headaches. He explained that STRs and the January 2016 show that he had trauma to his brain during service and has symptoms associated with TBI. The Board finds that the Veteran has TBI residuals and migraine headaches due to the in-service MVA. In this regard, he has competently and credibly reported losing consciousness during the accident and experiencing the onset of migraine headaches and dizziness since the accident. In addition, his STRs and VA treatment records show that he experienced brain trauma during the accident and the Veteran's private physician and the August 2022 VA examiner found that he has residuals of a TBI and migraine headaches due to the in-service MVA. While there are VA examiners that found these conditions are not related to service, their opinions are outweighed by the Veteran's credible statements and the positive medical opinions of record. However, finds that the Board also finds that the Veteran does not have vertigo or vertigo-like impairment. In this regard, the August 2014 and October 2016 examiners found that he does not have an inner ear condition. Moreover, the examiners' explanations are logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The August 2014 examiner explained that there is nothing to link the Veteran's reports of dizziness to any inner ear pathology. In addition, the October 2016 examiner explained that four diagnostic tests did not indicate the presence of vestibular dysfunction. Thus, the medical evidence of record does not indicate that the Veteran has ever had vertigo. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In addition, to the extent that the Veteran experiences dizziness as a result of the in-service MVA, he is granted service-connection for TBI residuals herein. The Veteran has claimed that he has vertigo but the evidence, both lay and medical, shows that he does not have this condition or impairment. Accordingly, while service connection is warranted for TBI residuals and migraine headaches, the evidence is persuasively against the vertigo claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for vertigo is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Service connection for a psychiatric disorder. Specific Legal Criteria Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis During the period on appeal, the Veteran has filed claims of service connection for PTSD and depression. In an August 2016 statement, he stated that he has PTSD due to the in-service MVA. In December 2021, the Veteran submitted a letter from his wife. She reported that the Veteran began having nightmares related to the in-service MVA. As explained above, the Veteran's STRs show that he was in an MVA during service in 1991 that resulted him losing consciousness, a facial fracture, and TBI. In April 2022, the Veteran submitted a disability benefit questionnaire completed by his private physician. The physician stated that the Veteran has PTSD and nightmares due to the in-service MVA. The Veteran was afforded an examination for this claim in April 2022. The examiner diagnosed the Veteran with PTSD and unspecified depressive disorder. The examiner found that the PTSD is at least as likely as not due to the in-service MVA. The examiner explained that the Veteran experiences intrusive memories, frequent nightmares, and psychological distress related to the MVA. He also explained that the Veteran's depression is at least as likely as not caused by his PTSD symptoms. The Board finds that the evidence is at least in equipoise as to whether the Veteran has PTSD due to a documented in-service stressor. The Veteran's in-service MVA resulting in facial fracture and TBI is documented in his STRs. In addition, his wife credibly reported that he began experiencing nightmares related to the MVA after service. Furthermore, the April 2022 VA examiner found that the Veteran has PTSD due to the documented in-service stressor. In addition, service connection is warranted for depression. In this regard, the April 2022 examiner diagnosed the Veteran with this condition and stated that it is caused by his PTSD symptoms. See 38 C.F.R. § 3.310. Accordingly, resolving reasonable doubt in the Veteran's favor, service connection for PTSD with depression is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. Increased Ratings 6. A rating in excess of 30 percent prior to November 26, 2015, and in excess of 50 percent thereafter, for pansinusitis including headaches. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran's sinusitis is rated under The General Rating Formula for Sinusitis (DCs 6510 through 6514). A zero percent rating is warranted when detected by x-ray only; a 10 percent rating is warranted with evidence of 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 warranted with evidence of 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; and the maximum rating of 50 percent is warranted following radical surgery with chronic osteomyelitis, or when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, DCs 6510-6514. An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran is seeking a higher rating for pansinusitis including headaches. In December 2009, he filed a claim of service connection for this disability. In a February 2010 statement, he reporting having breathing issues for the last year or so. The Veteran's STRs show that he underwent multiple surgeries during service to treat this condition. The Veteran was afforded an examination for this claim in March 2010. The Veteran reported experiencing difficulties breathing, severe discomfort, pressure, and headaches. The examiner found that the Veteran was extremely obstructed and had intermittent swelling in the infraorbital area. In a May 2010 rating decision, the RO granted the Veteran service connection for this disability and assigned a noncompensable rating. The Veteran was afforded another examination for this claim in November 2011. The examiner reported a diagnosis of pansinusitis resulting in seven or more episodes of non-incapacitating sinusitis in the past 12 months and headaches. The examiner denied the presence of any incapacitating episodes in the past 12 months and near constant sinusitis. In May 2013, the Veteran filed a VA Form 9 for the assigned sinusitis rating. The Veteran's VA treatment records show that he sought treatment for an ongoing sinus infection on September 16, 2014. In April 2015 rating decision, the RO found clear and unmistakable error (CUE) in the May 2010 rating decision and assigned an initial 30 percent rating for this disability. Later in April 2015, the Veteran's representative withdrew the May 2013 appeal of an increased rating for sinusitis. Thereafter, in April 2016 within one year of the April 2015 rating decision, the Veteran was afforded another sinus examination. As this is new and material evidence associated with the file within one year of the April 2015 rating decision, the initial rating period remains on appeal for this issue. See 38 C.F.R. § 3.156(b). The Veteran reported that this condition has gotten worse with constant drainage, crusting, tenderness of touch, and purulent discharge. The examiner found that the Veteran's sinusitis results in headaches and near constant sinusitis and even or more episodes of non-incapacitating sinusitis in the past 12 months and headaches. The examiner denied the presence of any incapacitating episodes in the past 12 months and near constant sinusitis. The Board finds that an initial rating in excess of 30 percent is not warranted prior to September 16, 2014. In this regard, the Veteran did not report and his treatment records do not indicate that he experienced chronic osteomyelitis near constant sinusitis during this period. In addition, the March 2010 and November 2011 VA examiners explained that the Veteran experienced non-incapacitating episodes of sinusitis during this period, but not near-constant sinusitis or chronic osteomyelitis. However, since September 16, 2014, the evidence indicates that this condition results in near-constant sinusitis with the requisite symptomatology. In this regard, the November 2011 VA examiner denied the presence of near-constant sinusitis. Thereafter, the next medical record for this condition occurred on September 16, 2014 when the Veteran reported an ongoing sinusitis infection. Thereafter, during the April 2016 VA examination, the Veteran reported that the condition had worsened and the examiner found that it results in near-constant sinusitis. In addition, the Veteran's STRs show that he has undergone multiple surgeries for this condition. Therefore, the evidence indicates that the Veteran has experienced near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries since September 16, 2014. See Swain, 27 Vet. App. at 219. The assigned 50 percent rating is the maximum disability rating for this condition. Accordingly, while a 50 percent rating is warranted since September 16, 2014, the evidence is persuasively against an initial rating in excess of 30 percent prior to such date. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an initial rating in excess of 30 percent for sinusitis prior to September 16, 2014 is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. 7. A 10 percent rating for multiple noncompensable disabilities. Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the rating schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. The assignment of this rating is predicated on the existence solely of noncompensable service-connected disabilities. As such, once a compensable rating for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. Butts v. Brown, 5 Vet. App. 532, 541 (1993). In this case, the Veteran filed a claim for a 10 percent rating under 38 C.F.R. § 3.324 in September 2014. However, the Veteran has now been in receipt of at least a 30 percent disability rating since December 29, 2009. Thus, a 10 percent rating due to multiple noncompensable disabilities is not warranted because the Veteran has had at least a 30 percent disability rating throughout the period on appeal. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a 10 percent rating for multiple non-compensable disabilities is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND A TDIU. The Veteran filed a claim for a TDIU based on chronic sinusitis with headaches in January 2016. He reported working fulltime for AT&T from August 2011 to February 11, 2013, as a Wire Technician. He noted that he left the job due to disability and that he expects to receive worker's compensation. In correspondence submitted with this claim, the Veteran stated that he cannot work due to sinusitis, headaches, and tinnitus. In September 2019, the Veteran's former representative submitted a vocational assessment report from a certified rehabilitation counselor. The counselor stated that the Veteran resigned from AT&T in December 2013 due to an inability to complete his job duties. Given the discrepancy between the TDIU claim form and the vocational report, the Board finds a remand is necessary to determine when the Veteran lasted worked and how much income he earned during his last year of employment. On remand, the Veteran should be asked to submit complete employment and annual income information since 2013. The Board notes that failure to provide complete employment and income information may result in denial of the TDIU claim. This claim is REMANDED for the following action: Request the Veteran to complete and return a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability and specifically provide complete employment and income information for all of 2013 as well as for any subsequent years that he had employment. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.