Citation Nr: 0021273 Decision Date: 08/11/00 Archive Date: 08/18/00 DOCKET NO. 95-19 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for dry eye syndrome. 2. Entitlement to a compensable initial disability evaluation for allergic rhinitis. WITNESSES AT HEARING ON APPEAL Appellant and spouse INTRODUCTION The veteran served on active duty from September 1973 to September 1993. This appeal originally arises from August 1994 and subsequent rating decisions of the Department of Veterans Affairs (VA), St. Petersburg, Florida, regional office. A hearing officer's decision issued in October 1995 granted service connection for dry eye syndrome and allergic rhinitis. A rating decision dated in October 1995 assigned noncompensable evaluations for those disabilities. In September 1996, the Board of Veterans' Appeals (Board) remanded the issues of entitlement to increased evaluations for dry eye syndrome and allergic rhinitis for additional development. In January 1997, the claims folder was transferred to the VA's North Little Rock, Arkansas, regional office (RO). Subsequently, a rating decision of January 1998 increased the evaluation of the veteran's service connected dry eye syndrome to 10 percent disabling, and continued the noncompensable evaluation of the service connected allergic rhinitis. In May 1998, the case was again remanded for additional development. In April 2000, a rating action continued the prior denials. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's service connected dry eye syndrome is currently evaluated at the maximum 10 percent assignable for active conjunctivitis; the VA examiners have stated that dry eye syndrome does not result in visual field defects, thus there is no basis for a higher evaluation on that basis. 3. The Board has considered both the pre-October 1996 and the post-October 1996 rating criteria in connection with the facts of this case in adjudicating the veteran's claim for an increased initial disability evaluation for allergic rhinitis; neither set of criteria is more favorable to the veteran's claim than the other. 4. Service medical records and the VA examination in May 1994 show no evidence of definite atrophy of intranasal structure and moderate secretion, or crusting, ozena, or anosmia. 5. The March 1997 examination does not show polyps or greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for dry eye syndrome, since October 1993, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 6018, 6080 (1999). 2. The criteria for a compensable evaluation for allergic rhinitis, since October 1993, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 6501 (1995), 6522 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the veteran has presented claims which are plausible. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. 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 (1999). Dry Eye Syndrome Service connection for dry eye syndrome was granted by a hearing officer's decision dated in October 1995. An October 1995 rating decision assigned a noncompensable evaluation from October 1, 1993. A January 1998 rating action increased the evaluation to 10 percent, also from October 1, 1993. The veteran has disagreed with that initial evaluation, which has been continued in subsequent rating actions. The veteran is currently at the maximum evaluation available under Code 6018, which provides a 10 percent evaluation for active conjunctivitis, with objective symptoms. 38 C.F.R. Part 4, Code 6018 (1999). However, a higher rating might be available under the code pertaining to impairment of field of vision, if such impairment were attributable to the service connected disability. 38 C.F.R. Part 4, Code 6080 (1999). The VA visual examination conducted in June 1994 indicated that the veteran had diplopia and visual field defects. These findings were not described in detail, and there was no indication whether they were related to the service connected dry eye syndrome. A VA ophthalmologic examination was conducted in March 1997. The veteran's corrected vision was 20/20 bilaterally. Scheiner's examination was normal, but he had Meibomian gland dysfunction, which indicated a dry eye syndrome from tear film abnormality not due to aqueous deficiency alone. The veteran was not diplopic, but had an exophoria (a tendency of the eyes to turn out but held straight by fusion from the brain). The examiner stated that visual field testing was not done since permanent visual field defects from dry eyes were not expected. A September 1998 VA examination diagnosed Meibomian gland dysfunction and possible dry eye syndrome of both eyes. A December 1999 VA ophthalmology examination noted that dry eye syndrome did not cause visual field defects. The most recent VA ophthalmology examination was conducted in March 2000. The conjunctiva and cornea were clear. The examiner diagnosed myopia and astigmatism, and noted that the veteran had no pathology related to dry eye syndrome. The veteran's dry eye syndrome was noted to be not active, and there was no visual filed defect. As noted above, the veteran is currently receiving the maximum 10 percent assignable under Code 6018, for active conjunctivitis. Since the VA examiners have stated that dry eye syndrome does not result in visual field defects, there is no basis for a higher evaluation under Code 6080. Accordingly, the Board finds that the record shows that the veteran is not entitled to an evaluation in excess of 10 percent for his service connected dry eye syndrome since October 1993. 38 C.F.R. Part 4, Code 6018 (1999). In this regard, see Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate, or staged, ratings can be assigned for separate periods of time based on the facts found). The schedular evaluations are adequate to compensate the veteran's dry eye syndrome. This is not an exceptional case where the schedular evaluations are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). As the evidence for and against the claim is not in relative equipoise, the reasonable doubt rule does not apply. 38 C.F.R. § 3.102 (1999). Allergic Rhinitis Service connection for allergic rhinitis was granted by a hearing officer's decision dated in October 1995. An October 1995 rating decision assigned a noncompensable evaluation from October 1, 1993, under Code 6501. The veteran disagreed with that initial evaluation. Subsequent rating actions have continued the noncompensable evaluation. VA regulations for evaluating disabilities of the respiratory system were changed effective October 7, 1996. See Schedule for Rating Disabilities, Respiratory System, 61 Fed. Reg. 46,720 (1996) (38 C.F.R. Part 4 (1999). Allergic rhinitis is now rated under Code 6522. Under the current criteria, 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, warrants a 10 percent rating, and, with polyps, warrants a 30 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6522 (1999). A noncompensable rating must be assigned where the findings do not approximate these requirements. 38 C.F.R. § 4.31 (1999). Under the old criteria, chronic atrophic rhinitis, with definite atrophy of intranasal structure, and moderate secretion, warrants a 10 percent rating. If there is moderate crusting and ozena, and atrophic changes, a 30 percent rating is warranted. And if there is massive crusting and marked ozena, with anosmia, a 50 percent rating is warranted. 38 C.F.R. § 4.97, Diagnostic Code 6501 (1995). Again, a noncompensable rating must be assigned where the findings do not approximate these requirements. 38 C.F.R. § 4.31. The veteran filed his initial claim in October 1993. In evaluating the appellant's claim to an increased disability evaluation for his allergic rhinitis, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Accordingly, consideration will be given to both versions of the regulations to determine which version is most favorable to the appellant. Upon review of the record, the Board notes that based upon the facts in this case, neither the pre-October 1996 nor the post-October 1996 rating criteria are deemed to be more favorable to the appellant. Accordingly, the claim has been considered pursuant to both sets of rating criteria for the applicable time periods in an effort to ensure due process. See VAOGCPREC 3-2000. After careful review of the evidence of record, the Board concludes that entitlement to an initial compensable disability evaluation for allergic rhinitis is not warranted. An April 1993 service medical record showed a complaint of seasonal hay fever. Nasal congestion was noted, and the assessment was allergic rhinitis. A VA general medical examination was conducted in May 1994. The veteran reported that over the years he had experienced several attacks of allergic rhinitis attributable to environmental pollens encountered in various parts of the country. There were no specific symptoms noted. The diagnosis was chronic allergic seasonal rhinitis. In considering the veteran's allergic rhinitis from 1993 to 1996 under the old criteria, the Board finds no evidence of definite atrophy of intranasal structure and moderate secretion, or crusting, ozena, or anosmia, which would warrant a compensable evaluation. 38 C.F.R. §§ 4.31, 4.97, Diagnostic Code 6501 (1995). . A VA examination was conducted in March 1997. The veteran reported seasonal allergies, with nasal pruritus and mucous drainage. On examination, the oral cavity/oropharynx showed well-hydrated mucosa. No masses or lesions were seen. The nose had large boggy edematous turbinates and an inferior septal scar bilaterally. The impression was allergic rhinitis, with acute sinusitis by history. The most recent medical evidence, the March 1997 examination, when evaluated in light of the current criteria, does not support a compensable evaluation; there is no showing of polyps, or of greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. 38 C.F.R. §§ 4.31, 4.97, Diagnostic Code 6522 (1999). Accordingly, the Board finds that the record shows that the veteran is not entitled to a compensable evaluation since October 1993 under either the old or the new regulations governing the rating of allergic rhinitis. 38 C.F.R. Part 4, Code 6501 (1995), 6522 (1999). See Fenderson, supra. The schedular evaluations are adequate to compensate the veteran's allergic rhinitis. This is not an exceptional case where the schedular evaluations are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). As the evidence for and against the claim is not in relative equipoise, the reasonable doubt rule does not apply. 38 C.F.R. § 3.102 (1999). ORDER The appeal is denied. M. G. MAZZUCCHELLI Acting Member, Board of Veterans' Appeals