SINUSITIS

B. G. LEMOINE · 2022 · Case ID: A22009327

GRANTED

Summary

The Veteran served from January 1987 to January 1995. He appealed the denial of a compensable rating for sinusitis and a Total Disability based on Individual Unemployability (TDIU). The Board granted a 30 percent rating for sinusitis, finding that the Veteran experienced three or more incapacitating episodes per year requiring prolonged antibiotic treatment, resolving reasonable doubt in his favor. This decision was based on a private medical opinion that contradicted the VA examiners' findings of fewer episodes and no incapacitating episodes. The private physicians noted significant antibiotic use and frequent headaches, supporting the grant of a 30 percent rating. For the TDIU claim, the Board granted the benefit, finding that the Veteran's combined service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. While VA examiners provided opinions against TDIU, the Board gave greater weight to a private medical opinion that detailed how the Veteran's conditions, including MDD, sinusitis, sinus headaches, and right ankle pain, collectively impacted his ability to work. The Board noted that the Veteran's physical limitations, particularly from his right ankle condition, and mental health symptoms like difficulty with focus and motivation, supported the TDIU grant, overriding the VA opinions and granting the benefit.

Rationale

Private medical opinion found more than two incapacitating episodes per year; VA examiners found only 2 non-incapacitating episodes; Reasonable doubt resolved in favor of the Veteran

Special Benefit

TDIU

Diagnostic Code

6313

Docket No.

200609-90465

Full Decision Text

Citation Nr: A22009327
Decision Date: 05/19/22 Archive Date: 05/19/22

DOCKET NO. 200609-90465
DATE: May 19, 2022

ORDER

A 30 percent rating for sinusitis is granted, subject to the laws and regulations governing the award of monetary benefits.

A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits.

FINDINGS OF FACT

1. Resolving reasonable doubt in favor of the Veteran, his sinusitis has been shown to result in three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment.

2. The weight of the evidence supports finding that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a 30 percent rating for sinusitis have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6513.

2. The criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1987 to January 1995.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.),131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review.

Procedurally, the Veteran's claim for entitlement to a compensable rating for sinusitis was denied in an April 2019 rating decision. In August 2019, the Veteran filed a VA Form 20-0995, Supplemental claim, related to the issue. A January 2, 2020, rating decision denied entitlement to a compensable rating for sinusitis and denied entitlement to a TDIU. Subsequently, in January 2020, the Veteran submitted VA Form 20-0996 Decision Review Request: Higher-Level Review with respect to the issues of entitlement to a compensable rating for sinusitis, and entitlement to a TDIU. The June 2020 Higher-Level Review rating decision confirmed and continued the denial of entitlement to a compensable rating for sinusitis and entitlement to a TDIU. In response to the June 2020 rating decision, on June 9, 2020, the Veteran submitted VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) where he selected the Direct Review lane without a Board hearing with respect to all issues. The evidentiary record in a Higher-Level Review is limited to the evidence considered in the prior agency of original jurisdiction (AOJ) decision under review; the higher-level adjudicator may not consider additional evidence. 38 C.F.R. § 3.2601 (f). Thus, in reviewing a Higher-Level Review decision, the Board may consider the evidence of record at the time of the underlying rating decision for which the appellant requested higher-level review (as that is the evidence that the AOJ was permitted to consider in the Higher-Level Review decision on appeal), as well as any evidence submitted by the appellant/representative during an evidentiary window. In this case, as the June 2020 rating decision on appeal constitutes a Higher-Level Review rating decision, the Board's current review is limited to the evidence of record at the time of the AOJ's January 2020 rating decision related to the issues of entitlement to a compensable rating for sinusitis and entitlement to a TDIU.

Increased Rating

A 30 percent rating for sinusitis is granted.

The Veteran asserts that he is entitled to a compensable rating for his service-connected sinusitis.

VA received the Veteran's increased rating claim for sinusitis on March 1, 2019. An April 2019, January 2020, and June 2020 rating decisions denied compensable ratings for sinusitis. The Veteran disagreed with the noncompensable rating and this appeal ensued.

The Veteran's sinusitis is rated under Diagnostic Code 6313 and his noncompensable rating is based on a diagnosed disability, with no compensable symptoms.

The Veteran's
a compensable rating for sinusitis and entitlement to a TDIU.

Increased Rating

A 30 percent rating for sinusitis is granted.

The Veteran asserts that he is entitled to a compensable rating for his service-connected sinusitis.

The Veteran's sinusitis is rated under Diagnostic Code 6313 and his noncompensable rating is based on a diagnosed disability, with no compensable symptoms.

The Veteran's sinusitis is evaluated pursuant to the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97, Diagnostic Code 6313. Under the General Rating Formula for sinusitis, a disability rating of 10 percent is assigned when the disability manifests in 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 is assigned when the disability manifests in 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 a disability rating of 50 percent is assigned following radical surgery with chronic osteomyelitis, or when the disability manifests in 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, General Rating Formula for Sinusitis.

The Veteran was afforded a VA examination in April 2019. The Veteran reported constant maxillary sinus congestion. The Veteran's sinusitis symptoms were noted to be pain and tenderness. The examiner indicated that the Veteran had 2 non-incapacitating episodes of sinusitis, in the past 12 months; and did not have any incapacitating episodes. There was no indication that the Veteran had sinus surgery.

The Veteran was afforded a VA examination in September 2019. The Veteran's sinusitis symptoms were noted to be episodes of sinusitis, headaches, pain and purulent discharge. The examiner indicated that the Veteran had 2 non-incapacitating episodes of sinusitis, in the past 12 months; and did not have any incapacitating episodes. There was no indication that the Veteran had sinus surgery.

The Veteran provided a private examination report from July 2019. After a review of the Veteran's medical records, the physicians reported that the Veteran had a history of incapacitating episodes and prolonged use of antibiotic treatment. The physicians reported that there was an overwhelming amount of medical evidence to support more than two incapacitating episodes per year and is evidenced by the amount of antibiotic medication prescribed to the Veteran (Doxycycline and Levofloxacin). The physicians also noted frequent headaches, with pain in his throat and ears. The Veteran also reported excessive crusting with purulent discharge, which is also evidenced by the amount of antibiotic medication prescribed to him.

A review of the Veteran's post-service treatment records shows a complaint of sinusitis symptoms, such as sinus draining, sinus pressure, and headaches. See VA Treatment Record dated December 2, 2019. The Board also notes that the Veteran was noted to take oral medication and nasal spray on a daily basis.

Here, there is both positive and negative evidence regarding the Veteran's incapacitating episodes related to his sinusitis. Both VA examiners of record indicated that the Veteran had 2 non-incapacitating episodes of sinusitis, in the past 12 months; and did not have any incapacitating episodes. However, on the other hand, the private physicians reported that the evidence of record indicated that the Veteran had more than two incapacitating episodes per year and is evidenced by the amount of Doxycycline and Levofloxacin prescribed to the Veteran.

The Board resolves reasonable doubt in favor of the Veteran and finds that the competent evidence of record supports finding that he has three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment. A 50 percent rating is not warranted because there is no evidence that the Veteran has had surgery for his sinusitis, nor has the Veteran asserted such.

Accordingly, a 30 percent rating for sinusitis is granted.

A TDIU is granted.

The Veteran asserts that his service-connected disabilities pre
that the evidence of record indicated that the Veteran had more than two incapacitating episodes per year and is evidenced by the amount of Doxycycline and Levofloxacin prescribed to the Veteran.

Accordingly, a 30 percent rating for sinusitis is granted.

A TDIU is granted.

The Veteran asserts that his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment.

VA received the Veteran's VA Form 21-8940, application for a TDIU on January 31, 2020. However, given that there was an increased rating claim on appeal at the time he applied for a TDIU, the Board finds that the TDIU claim is part and parcel of the increased rating claim on appeal and recognizes the effective date as March 1, 2019.

As an initial matter, the Board notes that the Veteran does not meet the schedular requirements for a TDIU, from April 23, 2018 to April 29, 2019. See 38 C.F.R. § 4.16 (a). In non-AMA cases, the Board is required to remand the issue to the Director, Compensation and Pension Service, for extraschedular consideration. In AMA cases, the Board may only remand an issue to correct any pre-decisional duty to assist or notify errors it identifies. Pub. L. No. 115-55, § 2(d)(2). Here, there does not appear to be any pre-decisional duty to assist errors, and the regulation directing remand to the Director, Compensation and Pension Service, for consideration under 38 C.F.R. § 4.16 (b) appears to have been overridden by statute. As such, the Board finds that the Board may decide the question of entitlement to a TDIU at this time.

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a).

Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001).

Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id.

A review of the Veteran's post-service treatment records does not reveal any information that directly discusses his employability due to service-connected disabilities. However, the medical records show that the Veteran's occupation was a postal carrier and in building maintenance.

During the period on appeal, the Veteran was afforded three VA examinations for his service-connected MDD. However, none of the VA examiners provided an opinion on the Veteran's employability, in relation to his MDD. The November 2020 VA examiner did report that while the Veteran had depression and anxiety, it was his physical pain that interfered with his ability to work. The Board notes that the VA examiners reported the following mental health symptoms; depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, near continuous panic, mild memory loss, flattened affect, difficulty in establishing and maintaining effective relationships, and impaired impulse control.

The Veteran was afforded two VA examinations for the service-connected sinusitis and rhinitis. However, both VA examiners opined that those service-connected conditions did not impact his ability to work. The Veteran was afforded three VA examinations for his service-connected right ankle condition. However, only the November 2020 VA examiner provided an opinion regarding the Veteran's employability. The VA examiner opined that his right ankle disability affected his ability to work because for every 10 minutes the Veteran worked, he had to sit and rest for 15 minutes. The Veteran also reported that he woke up every 1-3 hours a night, due to pain in his right ankle.

An individual unemployability statement was provided by VA examiners in October and November 2020. A nurse practitioner reported that the Veteran's physical disabilities allowed him to perform non-physical type work. A psychologist reported that the Veteran's MDD would not cause any job-related difficulties. There was no explanation provided for either opinion.

The Veteran provided a private examination report from two physicians, in July 2019. The physicians explained that the Veteran's worsening physical health has led to a worsening of his mental health, both of which make any type of work unlikely. The Veteran's MDD, sinusitis, and sinus headaches impact his ability to maintain focus on tasks. His right ankle, right knee, and back also made physical work challenging. The physicians noted that the Veteran's MDD, sinusitis, and sinus headaches caused a history of missing work.

It is ultimately a rating consideration as to whether the Veteran is able to obtain or maintain substantially gainful employment. Here, the Board finds that the medical evidence of record in this case suggests that the Veteran has been so functionally limited by his service-connected disabilities as to be unable to obtain or maintain substantially gainful employment, consistent with his education and occupational experience, as a postal worker and building maintenance.

The Board acknowledges the VA medical opinions that weigh against the Veteran's claim for a TDIU, as they were provided after the examiners had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. However, the Board also acknowledges the private medical opinion of the private physicians, who opined that the Veteran's service-connected disabilities were severe enough to preclude even non-physical type jobs. The Board acknowledges that the private physicians noted that the Veteran's right knee and back caused physical limitations. However, the Veteran is not service-connected for a back or a right knee condition. However, the Board nonetheless finds that the right ankle, alone, causes occupational impairment; as evidenced by the VA examiner who reported that his right ankle disability affected his ability to work because for every 10 minutes the Veteran worked, he had to sit and rest for 15 minutes. Further, the ankle would also cause problems with focus and concentration because the Veteran also reported that he woke up every 1-3 hours a night, due to pain in his right ankle, which would contribute to any current sleep issues.

The Board also points out that the November 2020 VA examiner for mental health, who opined that it was the Veteran's physical disabilities that affected his ability to work, is not supported by the evidence of record. For example, two of the three mental health VA examiners reported that the Veteran had difficulty with establishing effective relationships and disturbances of motivation and mood. The Board finds that such symptoms would cause a person difficulty with occupational relationships and tasks.

Here, there is both positive and negative evidence regarding the Veteran's employability. However, the Board affords the private physician's opinion great probative weight because they had a chance to review his claims file. Further, they also provided a robust and well-reasoned rationale to support their medical opinion; they provided great insight into how each
for mental health, who opined that it was the Veteran's physical disabilities that affected his ability to work, is not supported by the evidence of record. For example, two of the three mental health VA examiners reported that the Veteran had difficulty with establishing effective relationships and disturbances of motivation and mood. The Board finds that such symptoms would cause a person difficulty with occupational relationships and tasks.

Here, there is both positive and negative evidence regarding the Veteran's employability. However, the Board affords the private physician's opinion great probative weight because they had a chance to review his claims file. Further, they also provided a robust and well-reasoned rationale to support their medical opinion; they provided great insight into how each individual disability, in conjunction with one another, caused the Veteran the inability to secure and maintain substantially gainful employment. Here, the Board finds that his service-connected disabilities, in conjunction with one another, preclude him from obtaining or maintaining substantially gainful employment, consistent with his education and occupational experience.

Here, the Veteran's MDD and sinusitis has been shown to impact his ability to focus on tasks; and his right ankle condition affects his ability to perform physical work, because he cannot stand or walk for extended periods of time. Here, the Veteran's work history has been as a postal worker and in building maintenance, both of which are physical jobs. There was no indication that he was trained for any other types of jobs and the physicians even reported that he would not even be able to perform non-physical type work.

In light of the whole record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board has considered the Veteran's education and his primary employment history as a postal worker and in building maintenance, and his level of disability due to his service-connected disabilities. However, as explained by the physicians, the symptoms from the service-connected disabilities precluded all types of employment, to include both the types of jobs the Veteran has training and experience in, and non-physical type jobs.

Accordingly, a TDIU is warranted.

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Fu, 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.

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