Citation Nr: 1501268	
Decision Date: 01/09/15    Archive Date: 01/13/15

DOCKET NO.  10-27 544A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a higher evaluation for allergic rhinitis, rated as noncompensable prior to July 9, 2014, and 10 percent thereafter.  

2.  Entitlement to a higher evaluation for plantar fasciitis, rated at 10 percent for each foot prior to July 9, 2014, and 50 percent thereafter.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

The Veteran had active service from September 1989 to September 2009.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  A hearing before the undersigned Veterans Law Judge was held in November 2011 (i.e. a video hearing).  The hearing transcript has been associated with the claims file. 

The record before the Board consists solely of electronic records in Virtual VA and the Veterans Benefits Management System. 

The issue of increased rating for plantar fasciitis is addressed in the REMAND portion and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The rhinitis has never been associated with polyps, and prior to July 9, 2014, it did not result in greater than 50-percent obstruction of each nasal passage or complete obstruction of one nasal passage.  


CONCLUSION OF LAW

The criteria for a compensable rating prior to July 9, 2014, and a rating in excess of 10 percent thereafter have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code 6522 (2014).  

REASONS AND BASES FOR FINDING AND CONCLUSION

Increased Rating

Diagnostic Code 6522 provides a 10 percent rating for rhinitis without polyps but with greater than 50-percent obstruction of each nasal passage or complete obstruction of one nasal passage and a 30 percent rating for rhinitis with polyps.

An August 2009 VA examination record reveals the Veteran's history of allergy symptoms in the spring and summer, for which he used Flonase and Zyrtec.  He also reported sinusitis two times a year.  Examination of the "nose, sinuses, mouth, and throat" was normal.  

A January 2010 private treatment record reveals the Veteran's history of allergies with a flare for the previous two weeks associated with increased sinus pressure.  The Veteran reported use of Zyrtec and Flonase without relief and indicated that he had thick nasal discharge and frequent bloody nose.  Examination revealed that the turbinates were pale and boggy without significant exudate.  The record indicates that the Veteran was provided a Kenalog shot.  A March 2010 private treatment record reveals the Veteran's history of a "little bit" of a flare of his allergies over the past week.  After examination, well adult examination was diagnosed.  A May 2010 private treatment record reveals the Veteran's complaint of seasonal allergies, "tremendously improved" after the Kenalog shot until the previous week "or so."  Examination revealed mildly erythematous turbinates without exudate.  The record indicates that the Veteran was provided another Kenalog shot.  

An August 2010 VA examination record reveals the Veteran's history of allergic rhinitis associated with nasal congestion and itchy/watery eyes.  He reported use of Zyrtec and steroid injections.  He also reported constant breathing difficulty and sinusitis.  There was no sign of nasal obstruction and no polyp, deviation, permanent hypertrophy, rhinoscleroma, tissue loss, scarring, deformity, or granulomatoous condition.  Pulmonary Function Testing (PFT) was normal.  The record notes that the Veteran was working full-time and that he reported losing one week from work in the previous 12-month period due to doctors' appointments, foot pain, and allergies.  The examiner diagnosed allergic rhinitis.  The examiner found the allergic rhinitis had no significant effect on occupation but did affect usual daily activities, with mild impairment of chores, shopping, and traveling, and total impairment of exercise, sports, and recreation.  

A July 2014 VA examination record reveals the Veteran's history of allergies during the spring and summer, associated with stuffy nose, itchy eyes, and dry cough, for which he took Allegra and Flonase.  He also reported dry cough "most of the time" and episodic sinusitis two times a year.  The examiner found there was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis but no complete rhinitis of either side.  There was no permanent hypertrophy, polyps, or granulomatous condition.  There was bilateral nasal congestion with boggy nasal turbinates.  The examiner determined the seasonal allergic rhinitis did not impact the Veteran's ability to work.  

After review of the evidence, the Board finds a higher rating is not warranted at any time during the period on appeal.  Initially, the Board finds a rating in excess of 10 percent is not warranted at any time after July 9, 2014, as there is no evidence, to include history, of polyp.  A compensable rating is also not warranted prior to July 9, 2014, as there is no competent evidence of total obstruction of one nasal passage or greater than 50 percent obstruction of both nasal passages at any time prior to July 9, 2014.  Although the record includes histories of impaired breathing and findings of bogginess, the medical record does not indicate that the impairment of breathing is due to total obstruction of one nasal passage or greater than 50 percent obstruction of both nasal passages.  In this regard, the Board notes that the August 2010 record indicates that the turbinates were only "mildly" erythematous, which the Board finds suggests obstruction not greater than 50 percent, and VA examinations reveal findings of no obstruction.  The Board acknowledges that the Veteran worked as a "health care specialist" during service.  Nevertheless, the Board finds the Veteran's histories, standing alone, are not competent evidence warranting a compensable rating.  The Board finds a determination of the percentage of nasal obstruction due to allergic rhinitis requires examination, and the Veteran has not indicated that his histories are based on examination.  

The Board has considered entitlement to a separate rating but finds none is warranted.  In this regard, the Board notes that service connection is already in effect for sinusitis.  

The Board has considered whether extraschedular consideration is warranted based on the evidence of occupational impairment secondary to the knee disability.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected rhinitis.  As discussed above, there are higher ratings available under the diagnostic code addressed in this decision, but the Veteran's rhinitis is not productive of the manifestations that would warrant the higher ratings.  The Board finds the effects of the Veteran's disabilities discussed here have been fully considered and are contemplated in the rating schedule.  Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).

Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran is challenging the initial disability ratings assigned following the grant of service connection for allergic rhinitis.  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).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  That burden has not been met in this case.

VA has obtained service treatment records and VA treatment and examination records; assisted the appellant in obtaining evidence; and afforded the appellant the opportunity to give testimony before the Board.  All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file.  The Board acknowledges that the Veteran has private treatment.  The Veteran was informed of the absence of records associated with that private treatment dated from June 2010, and was asked to send any medical reports in his possession or to submit VA Form 21-4142, "Authorization and Consent to Release Information."  The Veteran has not provided these records or a VA Form 21-4142.  The Veteran is responsible for providing pertinent evidence in his possession.  See Hayes v. Brown, 5 Vet. App. 60, 68  (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence).  It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of the claim.

VA afforded the appellant examinations to determine the nature and severity of the rhinitis.  Review of the examination records indicate that each examiner reviewed the medical records and reported all necessary findings, and the Veteran has not alleged that any examination was inadequate or that the rhinitis worsened since the 2014 examination.  Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the Board remands.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  




ORDER

A compensable rating prior to July 9, 2014, and a rating in excess of 10 percent thereafter for allergic rhinitis is denied.  


REMAND

In its March 2014 remand, the Board instructed the RO/AMC readjudicate the issue of increased rating for plantar fasciitis and issue a supplemental statement of the case (SSOC) if the benefit sought on appeal was not granted to the appellant's satisfaction.  In a September 2014 rating decision, the AMC awarded a 50 percent disability rating effective July 9, 2014.  The AMC did not issue a SSOC on the matter.  

The Board errs as a matter of law when it fails to ensure substantial compliance with the remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268, 271 (1998).  Although the Veteran was granted an increased rating of 50 percent, the increase is not effective for the entire period on appeal, and the Veteran has not indicated a desire to withdraw the appeal prior to July 9, 2014.  See AB v. Brown, 6 Vet. App. 35 (1993).  Thus, an SSOC is needed per the March 2014 remand instructions.  

Accordingly, the case is REMANDED for the following action:

1. Undertake appropriate development to obtain any outstanding records pertinent to the claim, to include up-to-date VA treatment records.
 
2. Thereafter, readjudicate the claim of entitlement to higher evaluation for plantar fasciitis, rated at 10 percent for each foot prior to July 9, 2014, and 50 percent for both feet thereafter.  The Veteran and his representative should be furnished with a SSOC and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
DENNIS F. CHIAPPETTA 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs