Citation Nr: 1048433	
Decision Date: 12/30/10    Archive Date: 01/11/11

DOCKET NO.  08-20 686	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for migraine headaches to 
include as secondary to service-connected allergic rhinitis.

2.  Entitlement to an effective date earlier than September 23, 
2008, for the award of a 30 percent rating for allergic rhinitis.

3.  Entitlement to a compensable rating for residuals of nasal 
injury with scarring.


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel




INTRODUCTION

The Veteran had active service from August 1974 to July 1978.

These matters come before the Board of Veterans' Appeals (Board) 
on appeal from August 2007, December 2009, and July 2010 rating 
decisions issued by the Department of Veterans Affairs (VA) 
Regional Office (RO) in Winston-Salem, North Carolina.

The record reflects that the diagnosis of the Veteran's vasomotor 
rhinitis has been revised to allergic rhinitis.  Thus, the Board 
has recharacterized the issues in light of this change.


FINDINGS OF FACT

1.  The Veteran's migraine headaches are proximately due to or 
the result of his service-connected allergic rhinitis.

2.  It was not factually ascertainable that the Veteran's 
service-connected allergic rhinitis was manifested by polyps 
prior to September 23, 2008.

3.  Since the March 19, 2007, date of claim, the evidence shows a 
2.5 by 0.1 cm scar on the bridge of the nose that was level, with 
no adherence, underlying tissue loss, hyper-pigmentation, 
abnormal skin texture, instability, pain, or any limitation of 
function of the nose.


CONCLUSIONS OF LAW

1.  The criteria for service connection for migraine headaches as 
secondary to allergic rhinitis have been met.  38 U.S.C.A. §§ 
1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 
(2010).

2.  The criteria for an effective date earlier than September 23, 
2008, for the award of a 30 percent rating for allergic rhinitis 
have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 
3.400 (2010).

3.  The criteria for a compensable rating for residuals of nasal 
injury with scarring have not been met.  38 U.S.C.A. §§ 1151, 
5107 (West 2002); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Codes 7800, 
7803, 7804, 7805 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

Proper notice from VA must inform the claimant of any information 
and medical or lay evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; and 
(3) that the claimant is expected to provide.  38 C.F.R. 
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all 
elements of a service-connection claim.  Accordingly, notice must 
include information that a disability rating and an effective 
date for the award of benefits will be assigned if service 
connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  

In a claim for increase, the VCAA requires only generic notice as 
to the type of evidence needed to substantiate the claim, namely, 
evidence demonstrating a worsening or increase in severity of the 
disability and the effect that worsening has on employment, as 
well as general notice regarding how disability ratings and 
effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 
F.3d 1270, 1277 (2009).

VCAA notice must be provided prior to an initial unfavorable 
decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  Where complete notice is not timely accomplished, such 
error may be cured by issuance of a fully compliant notice, 
followed by readjudication of the claim.  See Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006).

In light of the Board's favorable determination with respect to 
the claim of entitlement to service connection for migraine 
headaches as secondary to allergic rhinitis, no further 
discussion of VCAA compliance is needed at this time.  

With respect to the increased rating claim, the Veteran was sent 
a letter in April 2007 that fully addressed all notice elements 
and was issued prior to the initial RO decision in this matter.  
The letter provided information as to what evidence was required 
to substantiate the claim and of the division of responsibilities 
between VA and a claimant in developing an appeal.  Moreover, the 
letter informed the Veteran of what type of information and 
evidence was needed to establish an effective date.  Accordingly, 
no further development is required with respect to the duty to 
notify.

The earlier effective date claim arises from an appeal of the 
increased rating claim, for which proper VCAA notice was given as 
described above.  Further, Courts have held that once a claim is 
substantiated, additional notice is not required and any defect 
in the notice is not prejudicial.  See Hartman v. Nicholson, 483 
F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 
(2007).  Therefore, no further notice is needed under the VCAA.

Next, VA has a duty to assist the Veteran in the development of 
the claims.  This duty includes assisting him in the procurement 
of service treatment records and pertinent treatment records and 
providing an examination when necessary.  38 U.S.C.A. § 5103A; 
38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed without 
prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 
(1993).  The claims file contains the Veteran's service treatment 
records, as well as post-service reports of VA and private 
treatment and examination.  Moreover, the Veteran's statements in 
support of the claims are of record.  The Board has carefully 
reviewed such statements and concludes that no available 
outstanding evidence has been identified.  The Board has also 
perused the medical records for references to additional 
treatment reports not of record, but has found nothing to suggest 
that there is any outstanding evidence with respect to the 
Veteran's claims.  

For the above reasons, no further notice or assistance to the 
Veteran is required to fulfill VA's duty to assist the Veteran in 
the development of the claims.  Smith v. Gober, 14 Vet. App. 227 
(2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. 
Principi, 15 Vet. App. 143 (2001).

Service Connection

Service connection may be granted for disability resulting from 
disease or injury incurred in or aggravated by active service.  
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) 
(2010).  

Establishing service connection requires medical or, in certain 
circumstances, lay evidence of (1) a current disability; (2) an 
in-service incurrence or aggravation of a disease or injury; and 
(3) a nexus between the current disability  and the in-service 
disease or injury and.  See Davidson v. Shinseki, 581 F.3d 1313 
(Fed. Cir. 2009).

Service connection may also be granted for disability that is 
proximately due to or the result of a service-connected disease 
or injury.  38 C.F.R. § 3.310 (2010).  That regulation permits 
service connection not only for disability caused by service-
connected disability, but also for the degree of disability 
resulting from aggravation to a nonservice-connected disability 
by a service-connected disability.  See id; see also Allen v. 
Brown, 7 Vet. App. 439, 448 (1995).

The determination as to whether the requirements for service 
connection are met is based on an analysis of all of the evidence 
of record and the evaluation of its credibility and probative 
value.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a).  
See Baldwin v. West, 13 Vet. App. 1 (1999).  

In this case, the Veteran contends that he has migraine headaches 
due to his service-connected allergic rhinitis.

After a review of the record, the Board finds that service 
connection for migraine headaches as secondary to allergic 
rhinitis is warranted.

During an October 2008 VA examination, the Veteran reported 
chronic sinus problems with associated headaches.  Among other 
things, he complained of interference with breathing through the 
nose.  Examination revealed nasal polyps and increased erythema 
and inflammation of the inferior nasal turbinates with clear 
rhinorrhea, consistent with allergic rhinitis.  The examiner 
changed the diagnosis of vasomotor rhinitis associated with nasal 
injury with scarring to allergic rhinitis and bilateral nasal 
polyps.  The examiner noted that the Veteran has headaches and 
interference with breathing through the nose as a result of the 
disorder.

The October 2008 opinion attributed the Veteran's headaches to 
his service-connected allergic rhinitis.  Such conclusion enables 
a grant of service connection, on a secondary basis, pursuant to 
38 C.F.R. § 3.310.  In so finding, the Board acknowledges a 
subsequent October 2009 VA examination, performed by the same 
examiner, which reaches the opposite conclusion.  However, this 
second, negative opinion is deemed less probative than the 
earlier favorable one, for several reasons.  First, the October 
2009 opinion appears to have been based on an inaccurate account 
of the claim.  Specifically, the examiner noted that the Veteran 
was not claiming that the migraine headaches are secondary to the 
vasomotor rhinitis.  However, it is clear from the record that 
the Veteran is claiming such an etiologic relationship.  [The 
Board observes that the Veteran has amnesia with visual memory 
and perceptual problems.]  Moreover, as noted by the examiner, 
his opinion was also not based on a review of the complete claims 
file but only a portion provided by the RO.   Additionally, the 
examiner's rationale is muddled, as it indicates that the 
vasomotor rhinitis was not caused or aggravated by the migraine 
headaches, which represents a reversal of the issue at question.  
Thus, resolving all reasonable doubt in the Veteran's favor, 
service connection for migraine headaches as secondary to 
allergic rhinitis is warranted.

Effective Date

In essence, the Veteran contends that he is entitled to an 
effective date of March 19, 2007, for the award of a 30 percent 
rating for allergic rhinitis because the grant of service 
connection for this disability arose from the claim of 
entitlement to an increased rating for his residuals of nasal 
injury with scarring filed on that date.  He also questions why 
he is not entitled to an effective date from 1978, since he filed 
his original claim of entitlement to service connection for the 
underlying nasal injury within one year of separation from 
service.

Generally, the effective date of an evaluation and award of 
compensation based on a claim for increase will be the date of 
receipt of the claim, or the date entitlement arose, whichever is 
later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 
(2010).

Specifically, with regard to claims for increased disability 
compensation, the pertinent legal authority provides that the 
effective date will be the earliest date as of which it is 
factually ascertainable that an increase in disability has 
occurred, if a claim is received by VA within one year after that 
date; otherwise the effective date will be the date of receipt of 
claim or date entitlement arose, whichever is later.  38 U.S.C.A. 
§ 5110(b); 38 C.F.R. § 3.400(o)(2).  

A specific claim in the form prescribed by VA must be filed in 
order for benefits to be paid or furnished to any individual 
under the laws administered by VA.  See 38 U.S.C.A. § 5101(a) 
(West 2002); 38 C.F.R. § 3.151(a) (2010).  Any communication or 
action, indicating an intent to apply for one or more benefits 
under the laws administered by VA, from a claimant, his or her 
duly authorized representative, or a person acting as next friend 
who is not sui juris may be considered an informal claim.  Such 
informal claim must identify the benefit sought.  38 C.F.R. 
§ 3.155 (2010).

Under Diagnostic Code 6522, a 30 percent rating is warranted for 
allergic or vasomotor rhinitis with polyps.  38 C.F.R. § 4.97 
(2010).

After a review of the record, the Board finds that an effective 
date earlier than September 23, 2008, for the award of a 30 
percent rating for allergic rhinitis is not warranted.

Initially, the Board notes that the Veteran did not disagree with 
the July 26, 2007, effective date of the grant of service 
connection for allergic rhinitis assigned by the RO in the June 
2008 rating decision.  Although he stated the facts of his case 
in a September 3, 2008 statement, including the grant of service 
connection for allergic rhinitis effective July 26, 2007, he did 
not in any way express disagreement with the date or indicate a 
desire for appellate review.  See 38 C.F.R. § 20.204(2010).  
Thus, given the finality of the June 2008 rating decision, the 
effective date of the award of a 30 percent rating for his 
allergic rhinitis can be no earlier than this date, the date of 
service connection.  Here, the Board observes that, contrary to 
his assertions, an effective date of March 19, 2007, or from 1978 
when he filed his original claim is not warranted.

In the December 2009 rating decision, the RO increased the rating 
for allergic rhinitis to 30 percent effective September 23, 2008, 
noting this as the date of the Veteran's increased rating claim.  
The September 23, 2008, correspondence reflects the Veteran's 
assertions that his nose now bleeds at night, that it is hard to 
breathe out of the left nostril, and that medication does not 
help.  These assertions are also contained in an earlier July 8, 
2008, VA Form 9 for the residuals of nasal injury with scarring.  
The record is unclear as to whether the Veteran received notice 
of the June 2008 rating decision granting service connection for 
allergic rhinitis prior to submitting the VA Form 9, as notice of 
that decision was issued on July 2, 2008.  

Regardless of when the Veteran filed his increased rating claim, 
the Board finds that an effective date earlier than September 23, 
2008, is not warranted.  As indicated above, the effective date 
of an award of compensation based on a claim for increase will be 
the later of the date of receipt of the claim or the date 
entitlement arose.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  In 
this case, the Board finds that the date entitlement arose is the 
later date, and that date is that of the October 15, 2008, VA 
examination report showing that the Veteran's allergic rhinitis 
was manifested by polyps, the criteria for a 30 percent rating 
under Diagnostic Code 6522.  A review of the reports of VA and 
private treatment and examination does not reveal a finding of 
polyps prior to this examination.  Thus, it was not factually 
ascertainable that the Veteran's service-connected allergic 
rhinitis was manifested by polyps prior to October 15, 2008, let 
alone the September 23, 2008, date of claim acknowledged by the 
RO.  Thus, in this case, the Veteran has actually been awarded an 
earlier effective date than warranted by the facts of the case.

In sum, an effective date earlier than September 23, 2008, for 
the award of a 30 percent rating for allergic rhinitis is not 
warranted.  In reaching this conclusion, the Board has considered 
the applicability of benefit-of-the-doubt doctrine.  However, as 
the preponderance of the evidence is against the claim, that 
doctrine is not applicable.  See 38 U.S.C.A. § 5107; Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

Increased Rating

The Veteran filed a claim of entitlement to an increased rating 
for his residuals of nasal injury with scarring on March 19, 
2007.  

It is noted that the diagnostic criteria pertaining to scars was 
revised on October 23, 2008.  However, such changes only apply 
for claims filed on or after that date and do not impact the 
present claim. The Veteran has not specifically requested 
consideration under the new criteria. Thus, all diagnostic codes 
discussed herein are the version in effect prior to October 23, 
2008.
 
Throughout the rating period on appeal, the Veteran's residuals 
of nasal injury with scarring have been rated as noncompensable 
under Diagnostic Code 7800 for disfigurement of the head, face, 
or neck.  38 C.F.R. § 4.118 (2010).  

Under Diagnostic Code 7800, a 10 percent rating is warranted for 
one characteristic of disfigurement.  A 30 percent rating is 
warranted for visible or palpable tissue loss and either gross 
distortion or asymmetry of one feature or paired set of features 
(nose, chin, forehead, eyes (including eyelids), ears (auricles), 
cheeks, lips); or for two or three characteristics of 
disfigurement.  A 50 percent rating is warranted for visible or 
palpable tissue loss and either gross distortion or asymmetry of 
two features or paired sets of features (nose, chin, forehead, 
eyes (including eyelids), ears (auricles), cheeks, lips); or for 
four or five characteristics of disfigurement.  An 80 percent 
rating is warranted for visible or palpable tissue loss and 
either gross distortion or asymmetry of three or more features or 
paired sets of features (nose, chin, forehead, eyes (including 
eyelids), ears (auricles), cheeks, lips); or for six or more 
characteristics of disfigurement.

The 8 characteristics of disfigurement, for purposes of 
evaluation under § 4.118, are: scar 5 or more inches (13 or more 
cm.) in length, scar at least one-quarter inch (0.6 cm.) wide at 
widest part, surface contour of scar elevated or depressed on 
palpation, scar adherent to underlying tissue, skin hypo- or 
hyper-pigmented in an area exceeding six square inches (39 sq. 
cm.), skin texture abnormal (irregular, atrophic, shiny, scaly, 
etc.) in an area exceeding six square inches (39 sq. cm.), 
underlying soft tissue missing in an area exceeding six square 
inches (39 sq. cm.), and skin indurated and inflexible in an area 
exceeding six square inches (39 sq. cm.).  Note (1), 38 C.F.R. § 
4.118.

Unretouched color photographs will be taken into consideration 
when evaluating under these criteria.  Note (3), 38 C.F.R. § 
4.118.

The Veteran contends that his nasal injury results in swelling of 
the nose and face, a runny nose, headaches, watery eyes, blurred 
vision, and difficulty breathing.  

After review of the record, the Board finds that a compensable 
rating is not warranted for the Veteran's residuals of nasal 
injury with scarring.  

During a July 2007 VA examination, the Veteran reported chronic 
sinus problems.  He complained of occasional soreness, shortness 
of breath, and difficulty breathing.  Examination revealed 
erythema and inflammation of the inferior nasal turbinates with 
some clear rhinorrhea, consistent with allergic rhinitis.  There 
was no sinusitis.  There was a 2.5 by 0.1 cm scar on the bridge 
of the nose that was level with no tenderness, disfigurement, 
ulceration, adherence, instability, inflammation, edema, tissue 
loss, keloid, hyper-pigmentation, or texture abnormality.  The 
examiner observed that the scar was hypo-pigmented but was less 
than six square inches in area.  X-rays revealed an old healed 
fracture at the superior nasal spine and slight deviation of the 
nasal septum to the right of the midline.  The examiner diagnosed 
status post traumatic fracture of the nose with residual scar and 
vasomotor rhinitis.

During the October 2008 VA examination, the Veteran reported 
chronic sinus problems with associated headaches.  He complained 
of interference with breathing through the nose, hoarseness, 
crusting, pain, and thick and foul discharge.  He denied any 
infections of the bone.  Examination revealed dullness of the 
tympanic membranes consistent with allergy and nasal polyps and 
increased erythema and inflammation of the inferior nasal 
turbinates with clear rhinorrhea, consistent with allergic 
rhinitis.  There was nasal obstruction secondary to nasal polyps 
of 30 percent on the right and 40 percent on the left.  There was 
no evidence of bacterial rhinitis or sinusitis.  The examiner 
noted that color photographs were not taken as there were no 
visible scars.  The diagnosis was allergic rhinitis and bilateral 
nasal polyps.

Given the above, as a result of his in-service nasal injury, the 
Veteran has a 2.5 by 0.1 cm scar on the bridge of the nose that 
was level, with no adherence, underlying tissue loss, hyper-
pigmentation, or abnormal skin texture.  Although the scar was 
hypo-pigmented, it was less than six square inches.  Accordingly, 
the criteria for a compensable rating under Diagnostic Code 7800 
have not been met.  

The Board has considered other applicable rating criteria for 
evaluating the Veteran's residuals of nasal injury.  However, no 
other Diagnostic Code provides for a compensable rating.  Indeed, 
as there was no evidence of instability, pain, or limitation of 
function of the nose, a compensable rating is not warranted under 
Diagnostic Code 7803, 7804, or 7805.

The Board observes that the symptoms of runny nose, swelling, 
watery eyes, and difficulty breathing are attributable to his now 
service-connected allergic rhinitis.  See 38 C.F.R. § 4.14 
(2010).  The October 2009 examiner indicated that tearing of the 
eyes is related to the allergic rhinitis and there was no 
evidence of lacrimal duct disease.  Thus, a separate rating for a 
disorder of the lacrimal apparatus is not warranted under 
Diagnostic Code 6025, 38 C.F.R. § 4.79 (2010).  Lastly, the 
difficulty breathing is another symptom of allergic rhinitis, 
and, in fact, the October 2008 examiner specifically noted that 
the allergic rhinitis results in interference with breathing 
through the nose.  With respect to the headaches, as the Board 
has granted service connection for migraine headaches as 
secondary to allergic rhinitis, no further discussion of this 
symptom is for consideration at this time.

The record shows that the Veteran has a deviated septum.  
However, even if it is due to his in-service injury, the only 
nasal obstruction noted on examination was attributed to the 
nasal polyps.  Even if the deviated septum contributed to this 
obstruction, as it has not resulted in 50 percent obstruction on 
both sides or complete obstruction on one side, a separate rating 
for deviation of the nasal septum is not warranted under 
Diagnostic Code 6502, 38 C.F.R. § 4.97.

The Board must also determine whether the schedular evaluation is 
inadequate, thus requiring that the RO refer a claim to the Chief 
Benefits Director or the Director, Compensation and Pension 
Service, for consideration of "an extra-schedular evaluation 
commensurate with the average earning capacity impairment due 
exclusively to the service-connected disability or 
disabilities."  38 C.F.R. § 3.321(b)(1) (2010).

An extra-schedular evaluation is for consideration where a 
service-connected disability presents an exceptional or unusual 
disability picture.  An exceptional or unusual disability picture 
occurs where the diagnostic criteria do not reasonably describe 
or contemplate the severity and symptomatology of the Veteran's 
service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 
115 (2008). 

If there is an exceptional or unusual disability picture, then 
the Board must consider whether the disability picture exhibits 
other factors such as marked interference with employment and 
frequent periods of hospitalization.  Id. at 115-16.  When those 
two elements are met, the appeal must be referred for 
consideration of the assignment of an extra-schedular rating.  
Otherwise, the schedular evaluation is adequate, and referral is 
not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 
116.

In this case, the schedular evaluation is not inadequate.  An 
evaluation in excess of that assigned is provided for certain 
manifestations of the service-connected scar, but the medical 
evidence reflects that those manifestations are not present in 
this case.  Additionally, the diagnostic criteria adequately 
describe the severity and symptomatology of the Veteran's 
disorder.  As the rating schedule is adequate to evaluate the 
disability, referral for extra-schedular consideration is not in 
order.

In sum, a compensable rating for the residual scar is not 
warranted at any time during the rating period and no other 
residual of the nasal injury warrants a separate compensable 
rating.  In reaching this conclusion, the Board has considered 
the applicability of benefit-of-the-doubt doctrine.  However, as 
the preponderance of the evidence is against the claim, that 
doctrine is not applicable.  See 38 U.S.C.A. § 5107; Gilbert, 1 
Vet. App. 49.

						(CONTINUED ON NEXT PAGE)






ORDER

Service connection for migraine headaches as secondary to 
allergic rhinitis is granted.

An effective date earlier than September 23, 2008 for the award 
of a 30 percent rating for allergic rhinitis is denied.

A compensable rating for residuals of nasal injury with scarring 
is denied.



____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs