Citation Nr: 0308382 Decision Date: 05/02/03 Archive Date: 05/15/03 DOCKET NO. 95-39 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable evaluation for perennial rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Ivey, Counsel INTRODUCTION The appellant served on active duty from January 1991 to February 1994. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1994 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO) in which service connection for perennial rhinitis was granted and assigned a noncompensable evaluation. The Board remanded this matter in May 1999. The requested development has been accomplished and the matter has been returned to the board for further appellate review. FINDING OF FACT The veteran's service-connected perennial rhinitis is not manifested by definite atrophy of the intranasal structure and moderate secretion or the presence of polyps or of greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. CONCLUSION OF LAW The criteria for a compensable rating for perennial rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.159, 4.1, 4.20, 4.97, Diagnostic Code 6501 (effective prior to October 7, 1996), Diagnostic Code 6522 (effective on and after October 7, 1996). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103A (West Supp. 2002); 38 C.F.R § 3.159 (2002), eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist and also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See Quartuccio v. Principi, 16 Vet. App 183, 187 (2002). The November 2002 Supplemental Statement of the Case informed the veteran of the evidence needed to substantiate the claim. VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. 38 U.S.C.A §§ 5102, 5103A (West Supp. 2002); 38 C.F.R § 3.159(b) (2002). The veteran has not referenced any unobtained evidence that might aid the claim or that might be pertinent to the basis of the denial of the claim. See 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c) (2002). The veteran was afforded VA examinations in January 1996 and October 1997. See 38 U.S.C.A § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c)(4) (2002). VA has satisfied its duties to notify and to assist the veteran in this case. Further development and further expending of VA's resources is not warranted. Disability evaluations are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in the VA's Schedule for Rating Disabilities-which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. In evaluating the veteran's request for an increased rating, the Board considers the medical evidence of record. In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2002). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. While the entire recorded history of a disability is to be reviewed by the rating specialist, the regulations do not give past medical report precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco, 7 Vet. App. at 58. The U.S. Court of Appeals For Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2002) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of the VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. The veteran's service connected perennial rhinitis is currently rated as 0 percent disabling under Diagnostic Code 6522, for allergic or vasomotor rhinitis." A 30 percent evaluation is assigned with polyps. A 10 percent evaluation is assigned without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. 38 C.F.R. §§ 4.97 Diagnostic Code 6522 (2002). The Board notes that the schedular criteria by which respiratory system disabilities are rated changed effective October 7, 1996 (61 Fed. Reg. 46,720 (1996)). Under the former criteria of the rating schedule, a 10 percent evaluation is warranted for chronic atrophic rhinitis with definite atrophy of the intranasal structure and moderate secretion. A 30 percent evaluation requires moderate crusting, ozena, and atrophic changes. A 50 percent evaluation requires massive crusting and marked ozena with anosmia. 38 C.F.R. § 4.97, Diagnostic Code 6501 (effective prior to October 7, 1996). VA outpatient treatment record, dated August 1995, showed that the veteran's nose was congested and runny. The January 1996 VA nose examination showed some purulent like discharge, particularly in the left nostril. There was absence of tenderness over the sinuses areas. The throat examination showed mild hyperemia with the presence of postnasal drainage. At the October 1997 VA examination there was no obstruction in either nostril. The mucosa was slightly erythematous and indurated, but the examiner saw no obstruction. The veteran had a slight amount of frontal sinus tenderness on deep palpation. There was no maxillary tenderness. There was purulent discharge going down the back of his throat. The pulmonary function test showed evidence of small airway disease. The stated disease involved predominantly the nose and sinuses. Sinus x-rays revealed a left maxillary mucosal retention cyst. The examiner noted that this could be causing obstruction of the ostia on that side. The Board is unable to find any medical evidence that supports the proposition that the veteran's service connected perennial rhinitis is manifested by definite atrophy of the intranasal structure and moderate secretion or a 50 percent obstruction of the nasal passages or total blockage on one side. In sum, the preponderance of the evidence is against the claim for an initial compensable evaluation. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An initial compensable evaluation for perennial rhinitis is denied. ____________________________________________ C. P. RUSSELL Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.