Citation Nr: 0820329 Decision Date: 06/20/08 Archive Date: 06/25/08 DOCKET NO. 07-23 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable rating for perennial allergic rhinitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from October 2002 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted service connection for perennial allergic rhinitis, but assigned a noncompensable rating, effective from June 2005. FINDING OF FACT The veteran's service-connected perennial allergic rhinitis has been manifested by three to six non-incapacitating episodes in a one year period, characterized by headaches, pain, and purulent discharge or crusting; this disability has not resulted in any incapacitating episodes requiring prolonged antibiotic treatment, more than six non- incapacitating episodes in a one year period, characterized by headaches, pain, and purulent discharge or crusting, or radical surgery, and has not resulted in polyps or in a 50 percent or greater obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSION OF LAW The criteria for an initial 10 percent, but not greater, rating for service-connected perennial allergic rhinitis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Codes 6514, 6522 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The veteran's claim for an initial compensable rating for perennial allergic rhinitis arises from her disagreement with the initial evaluation following the grant of service connection. It has been held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by her, and for which she authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated with the claims folder the service treatment records and VA post-service outpatient treatment records, and although the veteran has asserted that she was given inadequate notice of a November 10, 2005 VA examination that had been scheduled to better determine the severity of her perennial allergic rhinitis, the record reflects that the address noted on a record documenting the veteran's failure to report for the examination was the most recent address for the veteran at that time. This is further substantiated by the fact that notice of an address change for the veteran was not received until May 2006, long after the scheduled examination in November 2005. Therefore, the Board finds that a reasonable effort was made by VA to afford the veteran with an appropriate VA examination based on proper notice, and that the veteran's failure to report for that examination requires the Board to decide the claim on appeal based on the evidence of record. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the veteran will not be prejudiced by the Board's adjudication of her claim. II. Entitlement to an Initial Compensable Rating for Perennial Allergic Rhinitis Service connection for perennial allergic rhinitis was established by the January 2006 rating decision, at which time a noncompensable rating was assigned, effective June 27, 2005. December 2004 VA respiratory examination revealed that allergy testing had been positive for numerous allergies to include tree pollen, mold, mildew, and plant pollens, and the veteran's current medications included Allegra and Singulair. Examination of the low turbinates revealed that they were pink and moist. Sinuses were not tender to percussion. VA outpatient treatment records for the period of April 2005 to May 2006 reflect that later in December 2004, the veteran underwent routine evaluation for several conditions, including environmental allergies and headaches. She reported chronic allergy symptoms of nasal congestion, sinus drainage, and headaches. It was thought that her headaches were secondary to her allergies. Nasal mucosa was pale. The plan was to substitute Allegra for Claritin, and for the veteran to also use Singulair. The veteran again underwent routine evaluation for her allergies and headaches in April 2005. At this time, the veteran reported that she had been told that her headaches were related to her sinuses and that she got one every day. The impression included environmental allergies, and the veteran was to be referred for allergy consultation. In May 2005, the veteran complained of daily headaches, post- nasal drainage, intermittent ear blocking and aching, and occasional vertigo. She reported 5 or 6 courses of antibiotics for "sinusitis" in the past year. In the morning, the veteran felt as though she might be catching a cold in addition to her usual runny nose, sneezing and runny eyes. Examination of the nasal membranes and turbinates revealed that they were very swollen and bluish. There were no polyps. Slight, clear discharge was noted bilaterally. The assessment was atopic patient with allergic rhinitis by history, previous course of specific allergen immunotherapy (SIT) was helpful but too brief, asthma, probably mostly allergic, and chronic rhinosinusitis, a significant problem in its own right. In September 2005, the veteran was admitted to the hospital with complaints of dyspnea, coughing, and wheezing with onset one day prior to admission. It was also noted that she had a history of environmental allergies. Examination of the ears, nose, and throat was negative. The impression included acute exacerbation o asthma, hypoxemia, and history of perennial allergic rhinitis. VA allergy clinic consultation in May 2006 revealed that nasal membranes and oropharynx were moderately edematous and red, with slight, clear discharge. The assessment was that the veteran was strongly allergic to spring-summer pollens, and slightly allergic to mites and a few molds. The veteran was considered to be an excellent candidate for SIT if her asthma could be adequately controlled. The examiner believed that the veteran's response to Prednisone was blunted by an intercurrent infection at the time of her last visit in May 2005. VA treatment records for the period of November 2006 to June 2007 reflect that in November 2006, the veteran reported symptoms of sneezing, itching, nasal pruritus, congestion, and ocular symptoms since her last visit. She also complained of frontal headaches. She had completed the steroids given in May and had to take one dose after that due to increased symptoms. The veteran reported a history of a nasal polyp, but that she never had surgery or was seen in the ears, nose, and throat clinic. Examination revealed that the nasal turbinates were without obstruction and that there were clear secretions. There was a possible nasal polyp on the right. The assessment included allergic rhinitis and conjunctivitis triggering headaches and asthma and possible polyp on the right. The veteran was to be started on SIT and a 14-day course of oral steroids which was then to be followed by nasal steroids. In January 2007, the veteran's complaints included persistent congestion and she was placed on another course of steroids. In June 2007, the veteran noted that she had been getting her allergen injections at the VA twice weekly beginning in February until it expired in May. Examination at this time revealed that nasal membranes and turbinates were slightly red and swollen. No polyps or discharge was visible. The assessment was delayed course of shots due to administrative problems. The veteran was to continue SIT. Disabilities of the respiratory system, including diseases of the nose and throat, are evaluated under 38 C.F.R. § 4.97. Pertinent criteria for evaluating the veteran's perennial allergic rhinitis are found in Diagnostic Code 6514, for chronic sinusitis, and Diagnostic Code 6522 for allergic or vasomotor rhinitis. Under 38 C.F.R. § 4.97 Diagnostic Code 6514, a noncompensable rating is assigned for sinusitis detected by x-ray only. Id. A 10 percent rating is assigned 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. Id. A 30 percent rating is assigned for 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. Id. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. 38 C.F.R. § 4.97 Diagnostic Code 6522 provides for a 10 percent rating for allergic or vasomotor rhinitis without polyps, but where there is greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 30 percent rating is available for allergic or vasomotor rhinitis with polyps. Id. The Board has carefully reviewed the VA treatment records indicated above, and while the existence of a possible polyp on the right was noted in November 2006, no polyp was found in June 2007, and greater than 50 percent nasal obstruction has never been demonstrated on either side. Thus, the veteran's perennial allergic rhinitis clearly does not warrant a compensable rating under Diagnostic Code 6522. However, with respect to Diagnostic Code 6514, although the record indicates that nasal discharge was repeatedly noted as clear, given the persistent finding of discharge, and a pattern of two to three non-incapacitating episodes characterized by headaches and some achiness, the Board will give the veteran the benefit of the doubt, and conclude that the symptoms of her perennial allergic rhinitis warrant an initial 10 percent rating for three to six non-incapacitating episodes in a one year period, characterized by headaches, pain, and purulent discharge or crusting under Diagnostic Code 6514. In considering entitlement to an even higher rating under this diagnostic code, the Board finds that the record supports a finding of at most three episodes per year, and that entitlement to a 30 percent rating on the basis of six or more non-incapacitating episodes is therefore clearly not warranted. In addition, the Board is unable to classify the veteran's episodes as incapacitating, since there is no evidence in the record that she required bedrest in conjunction with treatment by a physician for her perennial allergic rhinitis, as is required to qualify for an "incapacitating episode" under the rating criteria. Nor is there any evidence that her perennial allergic rhinitis has ever required radical surgery. Consequently, the evidence is against an initial rating in excess of 10 percent for this disability. ORDER Entitlement to an initial 10 percent rating for perennial allergic rhinitis is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs