SINUSITIS

Summary

The veteran, who served from November 1974 to November 1977, appeals the denial of an increased disability rating for his service-connected chronic sinusitis associated with residuals of nasal fracture. The Board reviewed the evidence for the period beginning September 19, 2013. The veteran contended that his disability rating should be higher than the initial noncompensable rating and the subsequent 10 percent rating. The Board considered multiple VA examinations from April 2014, September 2019, January 2021, and September 2021, finding them inadequate due to inconsistencies and contradictions regarding the frequency and severity of sinusitis episodes. The Board noted that the April 2014 examination supported a 30 percent rating, while later examinations were inconsistent, with some indicating no episodes and others noting symptoms like headaches and nasal congestion. The February 2022 VA examination and subsequent treatment records indicated frequent non-incapacitating episodes with headaches and nasal congestion. The Board found that the criteria for a 30 percent rating were approximated for the entire period on appeal, resolving doubt in the veteran's favor. However, a higher 50 percent rating was denied because the veteran's condition did not meet the criteria for sinusitis following radical surgery with chronic osteomyelitis or near constant sinusitis after repeated surgeries. The Board also noted that evaluating sinusitis with headaches would constitute pyramiding, as the veteran already receives a compensable rating for migraines. Therefore, the Board granted a 30 percent rating for sinusitis, but no higher, for the entire period on appeal.

Rationale

April 2014 VA exam supported 30% rating; Later VA exams inconsistent/inadequate; Frequent non-incapacitating episodes with headaches noted; Pyramiding concerns with migraine evaluation

Full Decision Text

Citation Nr: 22066694
Decision Date: 11/30/22	Archive Date: 11/30/22

DOCKET NO. 16-33 101
DATE: November 30, 2022

ORDER

An initial 30 percent rating, but not higher, for sinusitis associated with residuals of nasal fracture, is granted. 

FINDING OF FACT

Resolving all doubt in the Veteran's favor, beginning September 19, 2013, his chronic sinusitis associated with residuals of nasal fracture manifested by more than six non-incapacitating episodes per year of sinusitis with symptoms including crusting, pain, purulent discharge, and tenderness; but without sinusitis 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.

CONCLUSION OF LAW

The criteria for an initial 30 percent rating, but not higher, for sinusitis associated with residuals of nasal fracture, are approximated.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.97, DC 6512.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1974 to November 1977.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

By way of procedural history, this matter arises out of a claim for entitlement to an increased rating for residuals of nasal fracture. In February 2020, a rating decision was issued granting service connection for chronic sinusitis associated with residuals of nasal fracture (hereinafter "sinusitis") and assigned a noncompensable rating from September 19, 2013. In January 2022, the Board remanded the issue of entitlement to a compensable rating to obtain a new examination addressing the current nature and severity of the Veteran's sinusitis throughout the rating periods on appeal. Subsequently, the March 2022 rating decision assigned an increased evaluation of 10 percent from February 15, 2022. 

This does not represent a full grant, and as such, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993).

Increased Ratings  Applicable Laws and Regulations

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. 

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. 

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons
 to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. 

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

For the entire period on appeal, a 30 percent rating for sinusitis, but no higher, is granted. 

The Veteran contends that the disability ratings assigned for his service-connected sinusitis should be higher than the initially assigned noncompensable disability rating prior to February 15, 2022, and currently assigned 10 percent rating thereafter. 

The Veteran's sinusitis disability is currently rated pursuant to DC 6512. Under DC 6512, a 0 percent rating is assigned for sinusitis detected by x-ray only. A 10 percent rating is assigned for sinusitis manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by 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 sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by 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 for sinusitis following radical surgery with chronic osteomyelitis, or manifested by 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. An "incapacitating episode of sinusitis" is one requiring bed rest and treatment by a physician. Id.

The Board has considered the medical evidence and the lay evidence of record in evaluating the Veteran's disability rating for the periods on appeal. 

By way of context, the Board notes that an April 9, 2013 VA ENT consultation reported an obstruction of at least 50 percent of both nasal passages or complete obstruction of one side due to a broken nose, which may be more susceptible to a sinus infection. See also February 2022 VA Medical Opinion. 

The examination from April 2014 noted chronic sinusitis associated with residuals of nasal fracture which resulted in 7 or more non-incapacitating episodes of sinusitis with headaches, nasal pain, and tenderness in affected sinus, and purulent discharge or crusting. The Veteran reported having episodes of sinusitis once a month, with weekly headaches, tenderness in the affected sinus, and purulent discharge with crusting occasionally. See April 2014 VA Examination. A 30 percent schedular rating under DC 6512 is the highest available schedular evaluation from this point. 

While findings from subsequent VA examinations may suggest some episodic improvement of sinusitis, the Board finds that the evidence does not demonstrate sustained improvement in the disability and his ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (1993). 

The September 2019 VA examination shows dramatically different symptoms and frequency of sinusitis from the previous examination. Although the examiner confirmed a current diagnosis of sinusitis with onset noted as 1980 with recurrent sinus infections, the examiner also noted that the Veteran had no episodes (incapacitating or otherwise) of sinusitis. This corresponds to the criteria for a noncompensable rating under DC 6512. Yet, the examiner further noted where the Veteran had problems clearing nasal drainage which caused dizziness and headaches. See September 2019 VA Examination. This corresponds to the criteria for a 10 percent rating under
 of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (1993). 

The September 2019 VA examination shows dramatically different symptoms and frequency of sinusitis from the previous examination. Although the examiner confirmed a current diagnosis of sinusitis with onset noted as 1980 with recurrent sinus infections, the examiner also noted that the Veteran had no episodes (incapacitating or otherwise) of sinusitis. This corresponds to the criteria for a noncompensable rating under DC 6512. Yet, the examiner further noted where the Veteran had problems clearing nasal drainage which caused dizziness and headaches. See September 2019 VA Examination. This corresponds to the criteria for a 10 percent rating under DC 6512. Consequently, the Board concludes that findings from the September 2019 VA examination are inconsistent. 

The January 2021 VA examiner noted episodes of sinusitis, but also reported no incapacitating or non-incapacitating episodes of sinusitis, which the Board finds as contradictory. See January 2021 VA Examination; June 2020 Tampa VAMC Reports at 34. Additionally, the Board finds that the January 2021 examiner apparently disregarded the Veteran's lay assertions including private treatment reports from January 28, 2021, which noted his complaints of sinus pain and sinonasal congestion. See Private Treatment Record. Therefore, the Board concludes that findings from the January 2021 VA examination are both internally and externally inconsistent. 

The September 2021 VA examiner confirmed frequent episodes of sinusitis including treatment of sinus infections with antibiotics and sinus pressure causing headaches. See September 2021 VA Examination at 3. However, the examiner also noted no non-incapacitating or incapacitating episodes. See September 2021 VA Examination at 2. Further, the September 2021 examiner noted frequent episodes of sinusitis over the years, treatment of sinus infections with antibiotics, and sinus congestion and pressure, which caused headaches. See September 2021 VA Examination at 4, 5. As such, the Board finds conflicting information in the September 2021 VA examination report. 

Based on the foregoing, the Board concludes that the September 2019, January 2021, and September 2021 VA examinations are inadequate for rating purposes and assigns them little to no probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

The February 2022 VA examiner noted 4 non-incapacitating episodes over the past 12 months characterized by headaches, pain of the affected sinus, and purulent discharge including tenderness of affected sinus and nasal congestion. Additionally, October 27 and October 28, 2022 VA treatment records show where the Veteran complained of a runny nose. In this regard, the Board notes that he is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Although findings from the February 2022 VA examination and subsequent VA medical perhaps show some improvement, the Board finds that the criteria for a 30 percent rating are approximated for the entire initial rating period on appeal. 

The Board acknowledges that sinusitis may be subject to episodic improvement, as the foregoing medical records may demonstrate. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a).

Based on the foregoing, it is unclear whether sustained improvement in the Veteran's sinusitis is shown. Therefore, the Board approximates that his chronic sinusitis manifested by more than six non-incapacitating episodes per year of sinusitis with symptoms including crusting, pain, purulent discharge, and tenderness from September 19, 2013. See April 2014 VA Examination; VAMC Treatment Reports (2013 to 2022), Examinations, and Private Treatment Reports (2013 to 2022). 

Accordingly, resolving all doubt in the Veterans favor for the entire period on appeal, a 30 percent rating for sinusitis, but no higher, is granted. See Lynch, Ortiz, supra; 38 C.F.R. § 4.7. 

The Board further concludes that a higher evaluation of 50 percent for sinusitis is not warranted. A higher evaluation of 50 percent is not warranted unless there is sinusitis following radical surgery with chronic osteomyelitis or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting
 VAMC Treatment Reports (2013 to 2022), Examinations, and Private Treatment Reports (2013 to 2022). 

Accordingly, resolving all doubt in the Veterans favor for the entire period on appeal, a 30 percent rating for sinusitis, but no higher, is granted. See Lynch, Ortiz, supra; 38 C.F.R. § 4.7. 

The Board further concludes that a higher evaluation of 50 percent for sinusitis is not warranted. A higher evaluation of 50 percent is not warranted unless there is sinusitis 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. See 38 C.F.R. § 4.97. 

Here, the Board finds sinusitis without 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 for the entire period on appeal. 

The Board further recognizes that while headaches were noted as a symptom of the Veteran's sinusitis, he is already assigned a compensable rating for migraines under DC 8100. As such, assigning a separate evaluation for sinusitis to include headache symptoms would constitute pyramiding. Compare 38 C.F.R. § 4.97, DC 6512 with DC 4.124a, DC 8100. Pyramiding includes the evaluation of the "same disability" or the "same manifestation" under various diagnoses, which must be avoided. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); 38 C.F.R. § 4.14. Although evidence from the entire rating period on appeal noted sinusitis with non-incapacitating episodes of sinusitis characterized by symptoms including headaches, headaches must be excluded from the evaluation of sinusitis to avoid the rule against pyramiding.  Therefore, a higher evaluation of 50 percent is not warranted.

Finally, neither the Veteran nor his representative has raised any other issues; nor have any other issues been reasonably raised by the record.  Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017).  

 

A. Yaffe

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Raymond Skinner, 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.