Citation Nr: 1304441 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 11-04 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to an initial compensable evaluation for seasonal allergic rhinitis. 3. Entitlement to an initial evaluation in excess of 10 percent for status post left knee chondromalacia surgery with degenerative joint disease and residual scars. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active duty service from September 1983 to March 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In September 2012, the Veteran testified at a Central Office hearing before the undersigned Veteran's Law Judge. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. During the September 2012 Central Office hearing, prior to the promulgation of a decision in the present appeal, the Veteran withdrew her Substantive Appeal with respect to the issue of entitlement to service connection for sinusitis. 2. During the September 2012 Central Office hearing, prior to the promulgation of a decision in the present appeal, the Veteran withdrew her Substantive Appeal with respect to the issue of entitlement to an evaluation in excess of 10 percent for status post left knee chondromalacia surgery with degenerative joint disease and residual scars. 3. Throughout the appeal, the evidence of record demonstrates that the Veteran's seasonal allergic rhinitis is manifested by nasal congestion, but no polyps or greater than 50-percent obstruction in both nasal passages or total obstruction in one nasal passage. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal for entitlement to service connection for sinusitis have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal for entitlement to entitlement to an evaluation in excess of 10 percent for status post left knee chondromalacia surgery with degenerative joint disease and residual scars have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for a compensable rating for seasonal allergic rhinitis have not been met at any time. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Code 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Withdrawal of Appeals A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). The Veteran's September 2012 VA hearing transcript shows that she indicated that she desired to withdraw her appeal as to the issues of entitlement to service connection for sinusitis and entitlement to an evaluation in excess of 10 percent for status post left knee chondromalacia surgery with degenerative joint disease and residual scars. (Transcript (T.) at page (pg.) 2.) Because the Veteran has clearly indicated her wish to withdraw these issues on appeal, there remain no allegations of errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204 (2012). Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Accordingly, the Board does not have jurisdiction to review the appeals of entitlement to service connection for sinusitis and entitlement to an increased rating for a left knee disability and they are therefore dismissed. II. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The rating claim on appeal arises from the Veteran's disagreement with the initial rating assigned for her allergic rhinitis after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The CAVC has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, it is again noted that in the September 2012 hearing before the undersigned, the presiding Veterans Law Judge clarified the issue on appeal and identified potentially relevant additional evidence that the Veteran may submit in support of her claim. These actions by the undersigned supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103. Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320 (2010). Furthermore, "[t]he duty to assist is not boundless in its scope" and "not all medical records . . . must be sought-only those that are relevant to the [V]eteran's claim." Golz at 1320, 21. In this case, the Veteran's service treatment records have been obtained, as well as private treatment records. A VA examination with respect to the issue on appeal was obtained in March 2011, pursuant to 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide an examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate because it is based on detailed and thorough physical examination, and information pertinent to the rating criteria was solicited by the VA examiner. Further, the Veteran's hearing transcript shows that the undersigned Veterans Law Judge specifically had the Veteran describe the extent of her rhinitis. (Transcript (T.) at page (pg.) 5-8). The Board finds that such testimony is credible and that the Veteran is competent to describe physical symptoms that she experiences as a result of her rhinitis . See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Therefore, the Board finds that a remand for a new VA examination is not warranted. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claim. Essentially, all available evidence that could substantiate the claim has been obtained. II. Pertinent Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2, 4.41 (2011). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). Here the disability has not significantly changed and a uniform evaluation is warranted. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be assigned where the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Analysis The Veteran asserts that a higher evaluation is warranted for her service-connected seasonal rhinitis. Such disability is currently assigned a noncompensable evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6522, which pertains to allergic or vasomotor rhinitis. Under this code, rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent rating. Rhinitis with polyps warrants a 30 percent rating. However, after a review of the records, the Board finds that the Veteran is not entitled to a compensable evaluation for her service-connected seasonal allergic rhinitis. In this regard, private and VA outpatient treatment records reflect that the Veteran has complained of, and been treated for allergic rhinitis since 2009. A March 2011 VA examination report shows that the Veteran reported having sinus drainage all of the time and not just seasonally. She also reported that she has difficutly breathing. She indicated that she uses Flonase, Mucinex D, and a neti pot to treat her condition. On examination, the examiner indicated that there were no signs of nasal obstruction and no nasal polyps were present. An October 2012 private treatment record shows that the Veteran reported experiencing nasal congestion. On physical examination, the examiner reported that there were no polyps on either the right or left side. The examiner also reported that the Veteran had a 70 percent obstruction of her left nasal passage which hinders breathing on that side. Based on the aforementioned clinical evidence of record, the Board finds that because the evidence does not demonstrate that the Veteran experiences polyps and or/ a greater than 50 percent obstruction of her nasal passage on both sides or complete obstruction on one side, there is no basis upon which to assign the minimum 10 percent rating for her rhinitis disability at any time during the appeal period. The Board has considered the Veteran's reported symptoms. However, here, we find the medical evidence, prepared by skilled professionals, disclosing no obstruction on both sides and only partial obstruction on one side and no polyps to be far more probative than the Veteran's generic assertions. Furthermore, even accepting all of the Veteran's assertions regarding her rhinitis to be true, she still has not established the criteria for a compensable rating for allergic rhinitis. Accordingly, the preponderance of the evidence is against the claim. Other Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's seasonal allergic rhinitis symptomatology directly corresponds to the schedular criteria for the rating that has been assigned under code 6522. For this reason, the Board finds that the assigned schedular ratins is adequate to rate the Veteran's disability, and no referral for an extraschedular rating is required. The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, there is no indication in the record that reasonably raised a claim of entitlement to a TDIU. ORDER The appeal for entitlement to service connection for sinusitis, is dismissed. The appeal for entitlement to an evaluation in excess of 10 percent for status post left knee chondromalacia surgery with degenerative joint disease and residual scars, is dismissed. Entitlement to an initial compensable evaluation for service-connected seasonal allergic rhinitis is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs