Citation Nr: 1300760 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-18 907 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability. 2. What evaluation is warranted for allergic rhinitis since March 10, 2006? 3. What evaluation is warranted for bilateral hearing loss since March 10, 2006? 4. Entitlement to a rating in excess of 40 percent for a lumbar strain. 5. Entitlement to an effective date prior to January 8, 2008 for the award of the increased 40 percent rating for lumbar strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to October 1990, and from July 2005 to March 2006. The appellant also served in the reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO. The Veteran testified in a hearing at the RO before a Decision Review Officer in May 2010; a transcript of the hearing is of record. The Veteran's appeal also originally included the issue of entitlement to service connection for posttraumatic stress disorder. That benefit was granted in a December 2011 rating decision. That decision represents a complete grant as to this claim, so this issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issue of entitlement to service connection for sleep apnea has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In May 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal regarding the claims of entitlement to an evaluation in excess of 40 percent for the lumbar strain, and entitlement to an effective date prior to January 8, 2008 for the award of the increased 40 percent rating for the lumbar strain. 2. Since March 10, 2006, the Veteran's allergic rhinitis has not resulted in greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 3. Since March 10, 2006, the Veteran's bilateral hearing loss has resulted in no worse than a Level I impairment of auditory acuity in the right ear and a Level VII impairment of auditory acuity in the left ear (May 2009) or Level III impairment of auditory acuity in the ears bilaterally (March 2007). CONCLUSION OF LAW 1. The criteria for withdrawal of the appeals for an evaluation in excess of 40 percent for the lumbar strain and entitlement to an effective date prior to January 8, 2008 for the award of the increased 40 percent rating for the lumbar strain have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011). 2. Since March 10, 2006, the Veteran's allergic rhinitis has not met the criteria for a compensable evaluation. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.97, Diagnostic Code 6522 (2012). 3. Since March 10, 2006, the Veteran's bilateral hearing loss has not met the criteria for a compensable evaluation. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As service connection, initial ratings, and effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Analysis Withdrawal An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant. 38 C.F.R. § 20.204. In May 2012, the Veteran withdrew his appeal regarding the claims of entitlement to an evaluation in excess of 40 percent for the lumbar strain, and entitlement to an effective date prior to January 8, 2008 for the award of the increased 40 percent rating for the lumbar strain. Hence, there remain no allegations of errors of fact or law for appellate consideration in this regard. Accordingly, the Board does not have jurisdiction to review these issues on appeal and they are dismissed. Allergic Rhinitis In order to receive a compensable, 10 percent rating for allergic rhinitis, the evidence must show that the disability resulted in greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side (without polyps). 38 C.F.R. § 4.97, Diagnostic Code 6522. The pertinent evidence of record includes private treatment records, VA treatment records and the reports of March 2007, March 2008 and September 2010 VA examinations. The March 2007 examination showed that the Veteran was breathing comfortably through his nose. The nasal cavity was without purulence or polyps; there was mild septal deviation. The oral cavity and oropharynx were within normal limits. There was no lymphadenopathy or other masses palpable. A September 2007 private treatment record showed there was moderate swelling of the inferior turbinates with clear drainage. The oropharynx was normal with moderate-sized tonsils. There was no evidence of cervical adenopathy or thyromegaly. Skin testing showed positive reactions to several pollens as well as dust mites; pulmonary function test was normal. A January 2008 CT report showed the paranasal sinuses were all normally developed and were well aerated. There were no findings to suggest sinusitis. Edema of the nasal turbinates was demonstrated, bilaterally. A February 2008 private treatment record showed mild swelling of the right inferior nasal turbinate and a small amount of white postnasal drainage. There was no cervical adenopathy; however, the Veteran did complain of tenderness diffusely in his neck with minimal palpation and bilateral maxillary tenderness with minimal pressure on the face. The March 2008 VA examination showed swelling of inferior turbinate on the right; however, there was moist erythematous mucosa and clear secretion. There was no evidence of crusting or bleeding. Tenderness of the sinus was elicited on the infraorbital and maxillary region bilaterally, worse with the head bent down. An August 2008 private treatment record showed very pale, boggy, watery inferior turbinates bilaterally. Clear rhinorrhea was noted. A subsequent August 2008 private treatment record reflects the Veteran's complaint of yellow nasal drainage and postnasal drainage frequently. Nasal washes helped somewhat. Examination was relatively normal and the examiner commented that symptoms of the Veteran's perennial allergic rhinitis had been unresponsive to medications and environmental control measures. A November 2009 VA treatment record reflects the Veteran's complaints of feeling congested and having postnasal drip; his nose also felt dry. Objective examination showed swollen dry turbinates with yellow crusting. The examiner discussed with the Veteran initiating allergy injections. The September 2010 VA examination showed that there were no signs of nasal obstruction; nasal polyps were not present; there was not permanent hypertrophy of turbinates from bacterial rhinitis; there was no tissue loss, scarring or deformity of the nose; and there was no evidence of Wegener's Granulomatosis or Granulomatous infection. Boggy nasal mucosa with clear nasal secretions was demonstrated. There was no evidence of sinus disease and CT of the sinuses showed paranasal sinuses were normally developed and well aerated; there were no findings suggestive of sinusitis. After a review of all of the evidence the Board finds that the appellant's allergic rhinitis has not resulted in greater than a 50 percent obstruction of nasal passage on both sides or complete obstruction on one side (without polyps). Hence, entitlement to a compensable rating is denied. 38 C.F.R. § 4.97, Diagnostic Code 6522. As there is no evidence of permanent hypertrophy of turbinates (with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side) or evidence of granulomatous rhinitis, a compensable rating under other diagnostic criteria for evaluating rhinitis is not warranted. 38 C.F.R. § 4.97, Diagnostic Code 6523. The Board is aware that in a September 2009 statement, the Veteran seems to contend that his allergic rhinitis is more accurately diagnosed as sinusitis and thus he is entitled to a compensable rating based on the criteria for evaluating sinusitis. However, the evidence of record, namely the January 2008 and September 2010 VA CT scan results clearly demonstrate that the Veteran had no findings suggestive of service connected sinusitis. As such, the Board finds that the Veteran is not entitled to a compensable rating for his allergic rhinitis pursuant to the diagnostic criteria for evaluating sinusitis. In sum, for the period from March 10, 2006, a compensable rating for allergic rhinitis is not warranted. Bilateral Hearing Loss Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that a compensable rating for the Veteran's bilateral hearing loss is not warranted at any time for the period since March 10, 2006. On March 2007 audiometric testing, the Veteran's pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 35 45 40 Left 35 40 35 30 The average loss was 38.75 decibels in the right ear, and 35 decibels in the left. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 76 percent in the left ear. Applying the criteria for evaluating hearing loss to the findings of the March 2007 audiometric evaluation results in designation of Level III hearing in the right ear and Level III in the left ear based on application of the reported findings to Tables VI and VII. These findings warrant a non compensable rating under 38 C.F.R. § 4.85, DC 6100. On March 2008 audiometric testing, the Veteran's pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 40 25 30 25 Left 50 80 60 40 Speech recognition ability scores were not reported. Numeric designation of hearing impairment based only on puretone threshold average is used only when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). These requirements are not met in this case. Hence, these findings are inadequate for rating purposes. A September 2008 private treatment record reflects that a hearing study showed normal hearing on the right side with a mild high frequency sensorineural hearing loss on the left. The Veteran was noted to have 100 percent speech discrimination bilaterally. In April and May 2009 audiometric testing, pure tone thresholds, in decibels, were recorded, but on each occasion speech recognition scores were not. As before, without an examiner certifying that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86, these findings are inadequate for rating purposes. At October 2010 audiometric testing, the Veteran's pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 25 20 20 15 Left Speech audiometry revealed speech recognition ability of 94 percent in each ear. The audiologist commented that testing revealed normal hearing sensitivity for the right ear. Threshold specific information could not be obtained with any degree of certainty for his left ear. The audiologist noted that the Veteran exhibited functional behaviors and did not comply with standardized testing instructions. The audiologist was unable to establish a reliable speech reception threshold. Reliable crosschecks between speech and tone results could not be ascertained. The audiologist concluded that based on previous test results and the presence of distortion product otoacoustic emissions, the Veteran most likely had no worse than a mild hearing loss in the left ear. A February 2011 addendum reflects the audiologist's conclusion that speech recognition testing and pure tone average values represent significant crosscheck disagreement, making results unreliable and not valid for rating purposes for either ear. The Board in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss, however, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the reliable audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's reliable audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In light of the findings discussed above for the period from March 10, 2006, a compensable rating for bilateral hearing loss is not warranted. Extraschedular Consideration The Board has considered whether the Veteran's allergic rhinitis and/or bilateral hearing loss present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's allergic rhinitis and bilateral hearing loss. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") The rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, the appellant's disability picture is contemplated by the rating schedules, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The claims of entitlement to an evaluation in excess of 40 percent for a lumbar strain, and entitlement to an effective date prior to January 8, 2008 for the award of the increased 40 percent rating for the lumbar strain, are dismissed. Entitlement to a compensable evaluation for allergic rhinitis at any time since March 10, 2006, is denied. Entitlement to a compensable evaluation for bilateral hearing loss at any time since March 10, 2006, is denied. REMAND Pertinent to the claim of entitlement to service connection for headaches, the Veteran contends that his headaches onset in service, and certain evidence of record indicates that the headaches may be secondary to a service-connected disability. Thus, as reflected on the title page, the Board finds that his claim for migraine headaches must also be considered on a secondary basis. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (basing a claim for service connection on a new theory of etiology does not constitute a new claim). A disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In a May 2008 VA neurology note, the examiner concluded that the Veteran's headaches were not typical migraines. Rather, the headaches were likely secondary to tension headaches or PTSD. The Veteran was encouraged to follow-up with psychology and was prescribed a course of medication that could help his headaches and his mood swings. An August 2010 statement from the VA psychologist indicates that the Veteran had been diagnosed with depression and PTSD. He also had a history of headaches that may have interacted with his mood, each worsening the other. An August 2012 VA treatment statement reflects that the Veteran has a diagnosis of chronic headache of mixed etiology. The examiner indicated that the appellant's symptoms presented primarily a migraine-type headache that had been very difficult to control since its onset in 2005. The examiner noted that the Veteran had recently been diagnosed with migraine and occipital neuralgia and was undergoing a trial of medication management. The examiner further noted that the Veteran had chronic allergic rhinitis that was likely contributing to both the severity and frequency of his headaches. In light of this, the Board finds that another VA examination is necessary to resolve this claim on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and obtain the names and addresses, and approximate dates of treatment of all medical care providers who have treated him for headaches since service. After he has signed the appropriate releases, any records that have yet to be associated with the claims folder should be obtained and associated. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded a VA examination by a neurologist to determine, if possible, the etiology of his headaches. The claims folder, access to Virtual VA and a copy of this REMAND are to be made available for the examiner to review. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. All indicated tests and studies are to be performed. Following the examination, the examiner is requested to provide an opinion addressing the following questions: a) Is it at least as likely as not, i.e., is there a 50/50 chance, that the claimed headaches are caused by a service-connected disability, namely allergic rhinitis and/or PTSD? b) If not, are headaches aggravated, i.e., worsened beyond their natural progression, by the Veteran's service-connected allergic rhinitis and/or PTSD? If so, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. c) If the physician is of the opinion that the headaches were not caused by or aggravated by either the service-connected allergic rhinitis or PTSD, is it at least as likely as not, i.e., is there a 50/50 chance that any current headache disorder had its onset in his period of service? A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. If the examiner opines that the question cannot be resolved without resorting to speculation, then a detailed medical explanation as to why the causation is unknowable must be provided. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completion of the above development, the Veteran's claim for entitlement to service connection for migraine headaches should be readjudicated. If any determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs