Citation Nr: 0810078 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-33 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a compensable evaluation for allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION The veteran had active service from August 1977 to September 2002. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision of the VA Regional Office (RO) in Portland, Oregon which denied entitlement to the benefit sought. In an August 2007 letter, the veteran withdrew his appeal of the evaluations of his right knee and costaligia. As such, these issues are no longer before the Board and will not be addressed in this appeal. The Board also observes that in the veteran's original April 2002 claim for VA benefits he requested consideration of a claim for service connection for sinusitis. While the veteran made reference to sinusitis in his Notice of Disagreement, the October 2002 rating decision did not address this claim. However, given the grant of service connection for allergic rhinitis, and that the veteran has not subsequently made reference to sinusitis, it is not clear whether the veteran still desires to have his claim for service connection for sinusitis adjudicated. Accordingly, this matter is referred to the RO for clarification and appropriate action. FINDING OF FACT The veteran's allergic rhinitis does not manifest polyps, or greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSION OF LAW The criteria for a compensable evaluation for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code 6522 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of a letter from the RO to the veteran dated October 2003. The RO provided the requisite notification regarding the disability evaluation or the effective date that could be assigned in a March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges a recent decision from the United States Court of Appeals for Veterans Claims (Court) that provided additional guidance of the content of the notice that is required to be provided under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increased compensation benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that decision, the Court stated that for an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the VA notify the claimant that to substantiate a claim the claimant must provide, or ask the VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at lease general notice of that requirement to the claimant. While the veteran was clearly not provided this more detailed notice, the Board finds that the veteran is not prejudiced by this omission in the adjudication of his increased rating claim. In this regard, the veteran is represented by a National Veterans' Service Organization recognized by the VA, specifically The American Legion, and the Board presumes that the veteran's representative has a comprehensive knowledge of VA laws and regulations, including those contained in Part 4, the Schedule for Rating Disabilities, contained in Title 38 of the Code of Federal Regulations. In addition, the veteran and his representative were provided copies of the rating decision on appeal, the Statement of the Case and a Supplemental Statement of the Case all of which combined to inform the veteran and his representative of the evidence considered, a summary of adjudicative actions, all pertinent laws and regulation, including the criteria for evaluation of the veteran's disability, and an explanation for the decision reached. Lastly, the veteran's representative provided written argument at the Board as to why the veteran should be awarded a higher evaluation under the Schedule for Rating Disabilities. In the Board's opinion all of the above demonstrates actual knowledge on the part of the veteran and his representative of the information to be included in the more detailed notice contemplated by the Court. As such, the Board finds that the veteran is not prejudiced based on this demonstrated actual knowledge. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, the Board observes that in a statement from the veteran dated in March 2007 he indicated that he had no further evidence to submit in connection with this claim. In addition, the veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. The veteran essentially contends that the current evaluation assigned for his allergic rhinitis disability does not accurately reflect the severity of that disability. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board is also required to consider whether the veteran may be entitled to a staged rating. Therefore, in this claim, the Board has assessed the level of disability from the date of initial application for service connection to the present, determining whether the level of impairment warrants different disability ratings at different times over the life of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). A VA examination was conducted in May 2002. The veteran reported a runny nose, sneezing, and itchy eyes, in episodes which were more intense in the summer, and were controlled by medication. Examination disclosed that there was no sinus tenderness and that both nostrils were free. At that time the veteran's sinus x-rays were said to be normal. The examiner's diagnosis was allergic rhinitis, with no complications identified. A rating decision dated in October 2002 granted service connection for allergic rhinitis. That rating decision assigned a non compensable evaluation for the disability under Diagnostic Code 6522. The veteran expressed disagreement with that evaluation and began this appeal. An additional VA examination was conducted in January 2005. The examiner noted that the veteran had a problem with vasomotor rhinitis with no seasonal pattern, and no history of nasal polyps. The veteran reported weekly sinus headaches. Also, the examiner noted that the veteran was treated with antibiotics when the symptoms became severe two or three times a year. On examination the nares were fully patent at about 80 percent bilaterally. The examiner's assessment was recurrent vasomotor rhinitis. Diagnostic Code 6522 provides ratings for allergic or vasomotor rhinitis. 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. 38 C.F.R. § 4.97. Based upon a review of the above the Board finds that the evidence in this matter does not demonstrate that the criteria for a compensable evaluation for allergic/vasomotor rhinitis under Diagnostic Code 6522 have been met. Specifically, the medical evidence does not show that the veteran has a history of nasal polyps, or that the veteran has been found to have obstruction of his nasal passages. Nasal obstruction in not referenced in either of the veteran's VA examinations. In the absence of the clinical findings contemplated for a compensable evaluation for rhinitis, the Board concluded that entitlement to a higher evaluation has not been established. In written argument before the Board the veteran's representative has argued that the veteran's disability should be evaluation under the Diagnostic Code for sinusitis, rather than the Diagnostic Code for rhinitis. However, service connection for sinusitis has not been established, and as indicated in the Introduction section of this decision, the matter of entitlement to service connection for sinusitis has been referred to the RO for clarification and appropriate action. ORDER A compensable evaluation for allergic rhinitis is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs