Citation Nr: 21017516
Decision Date: 03/25/21	Archive Date: 03/25/21

DOCKET NO. 14-35 656
DATE: March 25, 2021

ORDER

An initial disability rating of 30 percent, but no higher, for the service-connected chronic atrophic and granulomatous rhinitis status post radical removal of most of inferior turbinates and scar (claimed as scarring tissue nasal passage) associated with coccidioidomycosis (claimed as lung condition), for the period on appeal prior to February 1, 2021 is granted.

A 30 percent disability rating, but no higher, for the service-connected chronic atrophic rhinitis status post radical removal of most of the inferior turbinates and scar (claimed as scarring tissue nasal passage) associated with coccidioidomycosis (claimed as lung condition), for the period on appeal from February 1, 2021 onward, is granted. 

FINDINGS OF FACT

1. For the period on appeal before February 1, 2021, the Veteran’s service-connected chronic atrophic and granulomatous rhinitis did not manifest in Wegener’s granulomatosis, lethal midline granuloma, but it did include sinusitis with non-incapacitating episodes manifested by headaches, purulent discharge and crusting, in addition to rhinitis manifested by nasal obstruction and severe nosebleeds, all of which results in an overall disability picture more nearly approximating the criteria for allergic rhinitis with polyps. 

2. For the period on appeal from February 1, 2021 onward, the Veteran’s service-connected chronic atrophic rhinitis manifested in symptoms of nasal obstruction, purulent discharge, frequent and severe nose bleeds, sinus headaches and crusting, resulting in an overall disability picture more nearly approximating allergic or vasomotor rhinitis with polyps; but it did not manifest in chronic osteomyelitis, repeated surgeries, laryngitis, aphonia, larynx, pharynx, rhinoscleroma, or granulomatous rhinitis.  

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating of 30 percent for the service-connected chronic atrophic and granulomatous rhinitis have been met for the period on appeal prior to February 1, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.97, Diagnostic Codes (DCs) 6510, 6599-6522.

2. The criteria for the assignment of a disability rating of 30 percent, but no higher, for the service-connected chronic atrophic rhinitis have been met for the period on appeal from February 1, 2021.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.97, DCs 6510, 6599-6522.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from July 2002 to July 2007.

This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the October 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.  The rating decision granted service connection for chronic atrophic and granulomatous rhinitis status post radical removal of most of inferior turbinates and scar (claimed as scarring tissue nasal passage) as secondary to the service-connected disability of coccidioidomycosis (claimed as a lung condition) and assigned an initial disability rating of 20 percent.  The Veteran’s Notice of Disagreement (NOD) was received in April 2013.  The Statement of the Case was issued in June 2014 and the Veteran’s VA Form 9, substantive appeal to the Board was received in August 2014.

In March 2019, the Veteran and his representative appeared before the undersigned Veterans’ Law Judge (VLJ) at a Board videoconference hearing.  The transcript is of record. 

In September 2019, the claim was remanded for further development and adjudication.  

Most recently, a November 2020 rating decision severed service connection for granulomatous rhinitis effective February 1, 2021; recharacterized the service-connected disability as atrophic rhinitis, and, assigned a 0 percent disability evaluation for chronic atrophic rhinitis effective February 1, 2021.  The Veteran requested a higher-level review of the issue of severance, but that issue is not certified to the Board at this time.  Accordingly, the issues on appeal are (1) entitlement to an initial disability rating in excess of 20 percent for the service-connected chronic atrophic and granulomatous rhinitis status post radical removal of most of inferior turbinates and scar associated with coccidioidomycosis (hereinafter “chronic atrophic and granulomatous rhinitis”) for the period on appeal from April 30, 2012 to January 31, 2021, and (2) entitlement to a compensable rating for the service-connected chronic atrophic rhinitis status post radical removal of most of the inferior turbinates and scar associated with coccidioidomycosis (hereinafter “chronic atrophic rhinitis”) for the period on appeal from February 1, 2021 onward. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 

Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). 

It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the Veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

1. Entitlement to an initial disability rating in excess of 20 percent for the service-connected chronic atrophic and granulomatous rhinitis for the period on appeal prior to February 1, 2021.  

2. Entitlement to a compensable disability rating for the service-connected chronic atrophic rhinitis for the period on appeal from February 1, 2021 onward.  

For the period on appeal before February 1, 2021, the Veteran’s chronic atrophic and granulomatous rhinitis was rated as 20 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6524.  Pursuant to DC 6524, a 20 percent disability rating is assigned for other types of granulomatous infection.  A maximum 100 percent disability rating is assigned for Wegener’s granulomatosis, lethal midline granuloma.  

All other applicable diagnostic codes have been considered, but the Veteran could not receive higher and/or additional evaluations based on the evidence.  38 C.F.R. § 4.97.  Indeed, when a disorder is listed in the Rating Schedule, such as the Veteran’s granulomatous rhinitis, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). However, and notably, the evidence of record ultimately establishes that the Veteran’s overall disability picture is not manifested by granulomatous rhinitis.  Rather, the Veteran’s disability picture more nearly approximates atrophic rhinitis and is manifested by symptoms of near-constant nasal congestion, severe nosebleeds, purulent discharge, crusting, and sinus headaches. 

Although the Veteran’s disability was recharacterized effective from February 1, 2021, his symptoms have essentially remained consistent throughout the appeal period, before, and since, February 1, 2021.

For the period on appeal from February 1, 2021 onward, the Veteran is in receipt of a noncompensable rating for the service-connected chronic atrophic rhinitis under DC 6599-6522.  Notably, chronic atrophic rhinitis is a disability that is not listed under VA’s rating schedule.  Where a particular disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; cf. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (holding that “when a condition is specifically listed in [VA’s schedule for rating disabilities], it may not be rated by analogy.”). In this regard, the RO has evaluated such disability as analogous to allergic or vasomotor rhinitis pursuant to 38 C.F.R. § 4.97, DC 6522.  The criteria provide that allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, is rated 10 percent disabling.  Allergic or vasomotor rhinitis with polyps is rated 30 percent disabling, which is the maximum rating pursuant to DC 6522.

Also, as noted above, the Veteran has consistently reported sinus headaches, nasal passages clogged with thick and bloody mucus, and these chronic sinusitis symptoms have not been satisfactorily disassociated from the service-connected rhinitis.  Accordingly, they must be considered when assigning an appropriate disability rating.  

Sinusitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis.  Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis.

Under the general rating formula, a noncompensable evaluation contemplates sinusitis detected by X-ray only.  A 10 percent evaluation is warranted 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 evaluation is warranted when there are 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 evaluation 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. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97.

The evidence of record throughout the appeal period has consistently shown the same cluster of signs and symptoms.

An April 2012 VA treatment note indicates that the Veteran has experienced nasal bleeding for the past two months, every day, especially in the morning.  The Veteran reported the bleeding lasting for 5 minutes and stopping after applying pressure.  There was no rhinorrhea or nasal congestion noted.  The Veteran was noted to have left epistaxis.     

In June 2012, the Veteran underwent a VA examination for his claim.  He was diagnosed with granulomatous rhinitis and chronic atrophic rhinitis, secondary to radical removal of most of inferior turbinates.  Under history, it was noted that the Veteran had scarring tissue in nasal passage secondary to service-connected coccidioidomycosis.  The Veteran reported the onset to be March 2003 and indicated that he had nasal blockage and loud snoring.  There was surgical treatment inside of nose and removal of part of soft palate.  The Veteran reported being unsure of when the disability was formally diagnosed.  It was noted that the disability did not require continuous medication.  The Veteran was not noted to have chronic sinusitis was not noted to have incapacitating or non-incapacitating episodes of sinusitis.  He was noted to have a March 2012 surgery and was not noted to have chronic osteomyelitis following the surgery.  The Veteran was noted to have rhinitis without greater than 50 percent obstruction of the nasal passage on both sides.  He was not noted to have obstruction on one side or permanent hypertrophy of the nasal turbinates.  There were no nasal polyps.  The VA examiner indicated that the Veteran had granulomatous rhinitis with radical inferior turbinectomies with secondary granulomatous reactions.  There was no chronic laryngitis, laryngectomy, aphonia, laryngeal stenosis, pharyngeal injury or any other pharyngeal condition.  The Veteran was not noted to have a deviated septum due to trauma and there were no tumors or neoplasms.  The Veteran was noted to have a scar which was not painful or unstable, and was not greater than 39 square cm.   An April 2006 CT was noted indicating normal nose and sinuses.  A June 2012 endoscopy was noted indicating absence of most inferior turbinates.  

An April 2013 VA treatment note indicates that the Veteran requested renewal of nasal spray.  

A February 2015 VA treatment note indicates that the Veteran reported getting thick blood clots as a result of his previous nasal surgery.  The Veteran indicated that he used to use saline spray from the VA and is currently trying ones sold over the counter.  The Veteran was recommended to continue using saline spray and apply Vaseline to the dry areas. 

In March 2015, the Veteran underwent a VA examination for his claim.  He was diagnosed with chronic sinusitis and granulomatous rhinitis.  The Veteran’s sinusitis was noted to affect maxillary, frontal, ethmoid, and sphenoid sinuses.  The Veteran’s sinusitis was noted to be chronic and detected only by imaging studies.  The Veteran’s chronic sinusitis was noted to cause headaches, pain, and crusting.  The Veteran was noted to have 3 or more incapacitating episodes of sinusitis requiring prolonged antibiotics treatment in the past 12 months.  Endoscopic sinus surgery was noted to take place in 2006 with no repeated surgical procedures.  The Veteran was noted to have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis.  He was not noted to have complete obstruction on either the left or right side.  The was permanent hypertrophy of the nasal turbinates and no nasal polyps.  The Veteran was noted to have granulomatous rhinitis with no scars.  A CT was performed, noting minimal mucous membrane in the Veteran’s sinuses with no other abnormality.  A nasal endoscopy was also performed, indicating slightly deviated septum to the right, hypertrophied inferior turbinates, and no mucopus from the middle meatus.  The Veteran was noted to have missed 3 weeks of school due to facial pressure and pain that has preceding auras.  The VA examiner noted that the Veteran’s symptoms seem to be more consistent with migraines, but that the Veteran also had nasal symptoms due to rhinitis.   

A July 2015 VA treatment note indicates that the Veteran was noted to have occasional nasal congestion/rhinitis.  His nasal exam was normal, with no polyps but with midline nasal septum.  He was noted to have slightly red turbinates.  

A December 2015 VA treatment note indicates that the Veteran complained of chronic nose bleeding at night while asleep, which has happened daily for a month and a half.  The Veteran reported waking up with blood and mucus in his nose.  He reported bleeding as a result of the surgical scarring in his nasal cavity.  He was noted to have rhinitis and recommended using saline spray, as well as Vaseline and humidifier to alleviate the dryness.  An addendum note indicates that the Veteran was instructed to use a special nasal lubricant that is safe for nasal passages instead of Vaseline.   

A September 2016 VA CT report indicates mild chronic appearing inflammatory mucosal disease primarily involving the bilateral maxillary and sphenoid sinuses with minimal involvement of the anterior ethmoidal and left frontal sinus.  The report also indicated a narrowing of the bilateral maxillary infundibula.  Chronic sinusitis was listed under clinical indication.  

In February 2017, the Veteran underwent a VA examination for his claim.  He was diagnosed with chronic atrophic and granulomatous rhinitis status post radical removal of most of interior turbinates.  The Veteran reported that his symptoms are constant, and that he has blood and mucus building up in his nose, making it hard to breathe, especially when sleeping.  The Veteran also reported headaches starting around his nose and spreading to the center of his forehead.  The Veteran reported constantly bleeding and, in the morning, having to pull large blood-filled mucus out of his nose.  The Veteran also reported that his condition worsened and that he always has to have tissue with him as he is always blowing his nose.  He was not noted to have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis.  He was also not noted to have complete obstruction on either side or hypertrophy of the nasal turbinates.  There were no nasal polyps noted.  The Veteran was noted to have granulomatous rhinitis with no other pertinent findings.  He was noted to have a scar which was not painful or unstable, and did not have a total area greater than 39 square cm.  At the conclusion of the report, the VA examiner indicated that diagnosis is rendered on the assumption that a VA-established diagnosis of granulomatous rhinitis and atrophic rhinitis were correct.  The VA examiner noted that there are no medical records that were provided for review, and that a physical examination is not enough to establish a diagnosis, especially postoperatively.  The VA examiner noted that the Veteran’s condition is active. 

An April 2017 VA otolaryngology treatment note indicates that the Veteran presented for an evaluation of chronic nasal drainage.  He was noted to have a history of chronic sinusitis and nasal septal deviation, for which he underwent a septoplasty in 2006.  The Veteran reported having improvement in breathing at the time, but in the recent weeks experiencing worsening congestion bilaterally.  The Veteran also reported progressive nasal bleeding and drainage.  The Veteran indicated that he pulls strings of mucus out of his noise on a daily basis.  The Veteran reported intermittent frontal pressure with no history of migraines.  He reported using Flonase daily with relief for several hours.  Upon examination, the Veteran was noted to have inferior turbinate hypertrophy and no bleeding, drainage, masses or lesions.  There was no purulence or other drainage.  He was noted to have diffuse mucosal edema.  A CT revealed mild chronic appearing inflammatory mucosal disease primarily involving the bilateral maxillary and sphenoid sinuses with minimal involvement of the anterior ethmoidal and left frontal sinus.  The Veteran was noted to have symptoms of chronic sinusitis.  A July 2017 follow up VA otolaryngology treatment note indicates that surgical intervention is deferred, as the Veteran’s symptoms are improving.    

At the March 2019 Board hearing, the Veteran testified that his nasal symptoms are constant and that his condition has worsened.  He testified that every morning he has to rinse out his nostrils with saline solution and that his disability interferes with sleeping and breathing.  The Veteran also reported waking up two to three times per night to clear out the excess blood and mucus from his nostrils.  The Veteran reported having an internal surgical scar, and having his nasal passage be constantly blocked off with mucus and blood.  The Veteran reported experiencing headaches, near-constant congestion, nasal drip, and difficulty breathing.  

A March 2019 VA otolaryngology treatment note indicates that the Veteran was seen for evaluation of chronic sinusitis prior to sinus lift surgery.  He was noted to have a history of chronic sinusitis and nasal septal deviation.  Upon examination, he was noted to have no bleeding, drainage, masses or lesions.  He was noted to have mild mucosal edema and inferior turbinate hypertrophy.  The Veteran’s VA treatment records indicate that the Veteran underwent a surgery in September 2020.  However, that surgery involved a dental implant.   

In January 2020, the Veteran underwent a VA examination for his claim.  He was diagnosed with chronic atrophic rhinitis.  The Veteran was not noted to have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis or complete obstruction on other side.  The was no permanent hypertrophy of the nasal turbinates and no nasal polyps.  The VA examiner noted that the Veteran did not have any granulomatous conditions.  The VA examiner noted no scars and no other pertinent physical conditions.  The VA examiner reviewed the Veteran’s records and cited medical literature with respect to diagnoses and symptoms of granulomatosis and atrophic rhinitis.  The VA examiner concluded that the Veteran’s headaches are likely related to chronic atrophic rhinitis.  The VA examiner noted the Veteran’s complains of constant nasal congestion, nasal drip, mucus and bloody discharge and frontal headache and concluded that clinically, the Veteran’s disability is more analogous to chronic atrophic rhinitis.  The VA examiner noted that previous VA examination reports confirmed the diagnosis of granulomatous rhinitis, but medical record does not show any necessary clinical testing that would support the diagnosis.  The VA examiner noted that the Veteran did not have Wegener’s granulomatosis.  The VA examiner also noted that the Veteran did not have any unstable or painful scars noted.  

Based on a review of the entire record, the Veteran’s overall disability picture has consistently more nearly approximated allergic rhinitis with polyps, warranting a 30 percent rating for the period prior to, and since, February 1, 2020.  

As noted above, the Veteran’s overall disability picture is manifested by chronic, and near-constant nasal congestion, sinus headaches, severe nosebleeds, purulent discharge and crusting.  Thus, when the all of the Veteran’s symptoms are considered as part and parcel of the service-connected rhinitis, the overall disability more nearly approximates allergic or vasomotor rhinitis with polyps.  Polyps, by their very nature cause nasal obstruction.  Considering that the Veteran’s sinus symptoms cannot be satisfactorily disassociated from the service-connected rhinitis, the overall disability picture is manifested by symptoms more nearly approximating allergic or vasomotor rhinitis with polyps.  Thus, the criteria for the assignment of a 30 percent rating are more nearly approximated for the entire period covered by this claim.  

The January 2020 VA examination report clearly indicates that the Veteran did not meet the diagnostic criteria for Wegener’s granulomatosis, or any other types of granulomatous infections at any time during the period on appeal.  The January 2020 VA examiner indicated that a clinical diagnosis based on testing is necessary to establish these disabilities, and that the previous VA examination reports containing a diagnosis of granulomatous rhinitis were not based on necessary diagnostic testing.  The January 2020 VA examination report is based on a thorough review of the Veteran’s medical history, appropriate medical literature, and with Veteran’s contentions taken into consideration.  As such, the January 2020 VA examination report is afforded probative value.  The Veteran’s VA treatment records support the conclusions reached in the January 2020 VA examination report.  Indeed, a diagnosis of granulomatous rhinitis or Wegener’s granulomatosis was not established during any course of treatment during the period on appeal.  

In an August 2014 VA Form 9, the Veteran indicated that he has Wegener’s granulomatosis, lethal midline granuloma.  However, the Veteran does not possess the medical expertise to make this assertion.  This issue is medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing and interpretation of medical records. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Additionally, this contention has been contradicted by the record.  

Staged ratings are not warranted in this matter as the overall disability picture has been relatively consistent for the period on appeal before, and since, February 1, 2021. 

In this regard, the Veteran reported constant symptoms of blood and mucus build up in his nasal passage, difficulty breathing, pain, and difficulty sleeping as a result.  While there is no objective evidence of polyps, the Veteran’s symptoms most nearly approximate constant or nearly constant build up, which is the most analogous with polyps.  In other words, the Veteran’s disability manifests in nasal blockage and mucus build up.  Polyps cause nasal obstruction and thus are the most analogous to the Veteran’s symptoms.  As such, the record establishes that the Veteran’s symptoms more nearly approximate allergic rhinitis with nasal blockage and polyps, and a maximum 30 percent evaluation is warranted by analogy under DC 6599-6522 for the entire period on appeal. 

Rating the Veteran’s service-connected chronic atrophic rhinitis under other applicable diagnostic codes has been considered and will not warrant a higher disability rating.  However, there is no evidence of laryngitis, laryngectomy, aphonia, larynx, pharynx, rhinoscleroma, or Wegener’s granulomatosis.  As such, DCs 6515, 6516, 6518, 6519, 6520, 6521, 6523, and 6524 are not for application. 

The record contains objective evidence of chronic sinusitis as confirmed by the September 2016 VA CT report, and at no point in the record have these symptoms been satisfactorily disassociated from the underlying service-connected rhinitis disability.    

As noted above, the Veteran’s sinus symptoms have been contemplated in assigning the 30 percent rating under Diagnostic Code 6522, and therefore, a separate disability rating for chronic sinusitis is not warranted.  To assign such would amount to impermissible pyramiding under 38 C.F.R. § 4.14.  Pyramiding, or assigning separate compensable disability ratings for the same symptoms under different diagnostic codes, must be avoided.  Here, the Veteran’s sinus symptoms contribute to his near-constant nasal blockage, and thus, the analogy to polyps is appropriate, but only because a separate disability rating for sinusitis is not co-existent with the 30 percent rating under DC 6522.

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Kuksova, Kseniya

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.