Citation Nr: 1318828 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-33 231 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to a compensable rating for allergic rhinitis. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 2002 to January 2007 and from May to July 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Newark, New Jersey VARO. In June 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. In October 2011 and November 2012, the Board remanded the matter for additional development. The issue of service connection for sinusitis, including as secondary to service-connected asthma, 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. FINDING OF FACT The Veteran's allergic rhinitis is not manifested by greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. CONCLUSION OF LAW A compensable rating for allergic rhinitis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.21, 4.31, 4.97, Diagnostic Code (Code) 6522 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A September 2007 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating, and a March 2013 supplemental SOC readjudicated the matter after the appellant and her representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has not alleged that notice in this case was less than adequate. See 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 issues"). Significantly, during the June 2011 Travel Board hearing before the undersigned, the Veteran was advised of what she still needs to substantiate the claim; the Veteran's testimony reflects that she is aware of what is needed to substantiate her claim. The Veteran's pertinent treatment records have been secured. She was afforded VA examinations in December 2006 (prior to discharge from service) and in December 2012; those examinations are reported in greater detail below, and are adequate for rating purposes, as the reports of the examinations contain the information necessary for consideration of the applicable criteria. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The February 2007 rating decision on appeal granted the Veteran service connection for allergic rhinitis, rated 0 percent, effective the day after her separation from service. The Veteran contends that her disability merits a higher rating. Rhinitis (allergic or vasomotor) is rated under Code 6522. A 10 percent rating is warranted when there are no polyps but there is greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted if there are nasal polyps. 38 C.F.R. § 4.97. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. On December 2006 pre-discharge VA examination, the Veteran reported having asthma and a sinus condition. She stated that she had constant rhinitis symptoms. Her medications included Flonase and an Albuterol inhaler that she had not used since September 2006. She reported taking Claritin and using nasal sprays such as Afrin and Flonase since 2004 for seasonal rhinitis. She reported that she developed chronic rhinitis when she was deployed to Iraq in 2005-2006, but had also experienced one severe sinus infection requiring antibiotics. She experienced a second sinusitis episode that she treated with salt water nasal spray for 5 days and it resolved without antibiotics. On physical examination, her nose was patent with no evidence of lesions, polyps, or significant septal deviation. The nasal mucosa were moist with clear mucus and no purulent discharge. The sinuses were nontender on percussion. The diagnosis was allergic rhinitis, with isolated incidence of acute bacterial sinusitis also noted. Based on that examination, the February 2007 rating decision on appeal granted service connection for allergic rhinitis. The rating decision also granted service connection for asthma at a 10 percent rating; the Veteran did not appeal that rating. On April 2007 VA treatment, the Veteran reported no known allergies. She reported a history of allergic rhinitis and asthma since returning from Iraq. The assessments included allergic rhinitis and questionable asthma vs. reactive airway disease. Claritin was prescribed in addition to her existing prescriptions of Flonase and nasal saline spray. On May 2007 VA treatment, the Veteran reported using Albuterol since her separation from service, although she was not using the Flovent inhaler for which she had a prescription. She reported having some wheezing recently on several occasions, at which time she took the Albuterol. She indicated that her asthma-like symptoms seemed to be associated with rhinitis symptoms. She reported that she was always very congested nasally and needed to breathe through her mouth, and she had associated hoarseness. She was treated for a sinus infection in January 2007, for which she took Flonase. On physical examination, the oropharynx was unremarkable. A May 2008 maxillofacial CT scan showed acute sinusitis. An August 2008 maxillofacial CT scan showed decreased but persistent fluid in the paranasal sinuses and nasal cavity concerning for acute or chronic sinusitis; nasal polyps could not be excluded, and there was non-aeration of both ostiomeatal units. On May 2011 VA treatment it was noted that the Veteran had not sought treatment for nearly two years; she stated that she did not seek follow-up treatment as she felt fine and felt no further need. She reported that she had a VA-issued inhaler that she used on occasion, and she had no other allergy or asthma medications filled through VA. On allergy consult, she reported right sided facial pain and pressure. She reported that her asthma was acting up, which usually occurred with worsening allergy symptoms. Increased clear mucus from the nose was noted, and there was no phlegm in the chest. She reported using a sinus rinse as she ran out of inhalers. On physical examination, the nose was pale and swollen with partial obstruction on the left. The impression was an atopic female with rhinosinusitis and mild intermittent bronchial asthma. She was prescribed Fluticasone and Augmentin. At the June 2011 Travel Board hearing, the Veteran testified that she experiences nose bleeds, burning in her nose, constant sinus infections, and irritation and swelling of the eyes. She testified that she sought treatment for a sinus infection a few weeks prior; an antibiotic was prescribed. On December 2012 VA examination, the Veteran reported persistent nasal congestion with difficulty breathing since 2003; she reported that the condition was progressing and was under medical treatment. There was no history of nasal injury or surgery. There was occasional nasal bleeding, controlled medically. The examiner noted diagnoses of chronic sinusitis and allergic rhinitis in 2003, as well as service connection for asthma that was also under medical treatment. The examiner noted that the Veteran had maxillary and sphenoid chronic sinusitis that was near constant with 7 or more non-incapacitating episodes over the previous 12 months characterized by headaches, pain and purulent discharge or crusting. There were no incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotic treatment over the previous 12 months. There was no history of sinus surgery. The examiner opined that there was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, nor was there complete obstruction on one side due to rhinitis. There was permanent hypertrophy of the nasal turbinates. There were no nasal polyps and the Veteran had no granulomatous conditions. There was not at least 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side, due to traumatic septal deviation. A CT scan of the sinuses showed chronic nasal sinusitis, and a nasal endoscopy showed hypertrophy of the nasal turbinates. The diagnoses included allergic rhinitis and chronic sinusitis; the examiner opined that the Veteran's asthma is aggravating her sinusitis/rhinitis condition. The examiner also opined that the Veteran's conditions do not impact on her ability to work. The Veteran has identified/submitted VA and non-VA treatment records through August 2012. Such records reflect symptoms similar to those noted on the VA examinations cited above. At the outset, the Board notes that the record includes references to sinusitis in regard to the rating for allergic rhinitis. Sinusitis is a separate (and separately rated) disability entity for which service connection has not yet been established; disability due to sinusitis may not be considered in rating the rhinitis at issue. As was noted above, the issue of service connection for sinusitis has been referred to the AOJ. The reports of the VA examinations and the treatment records, overall, provide evidence against the Veteran's claim, as they do not show that symptoms of the Veteran's allergic rhinitis produce greater than 50 percent obstruction of the nasal passages on both sides, or complete obstruction on one side, so as to meet the criteria for a 10 percent rating. The Board notes the lay statements submitted by the Veteran in support of this claim. Those statements detail the types of problems that result from the Veteran's disability. The symptoms described do not show that the Veteran's rhinitis meets the criteria for compensable rating. Thus they do not support that a higher rating is warranted. In summary, it is not shown that the Veteran's allergic rhinitis has at any time been manifested by greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side (or approximating such levels of severity). Consequently, a compensable rating is not warranted. 38 C.F.R. § 4.31. Furthermore, the Board finds that the evidentiary record presents no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). There is no evidence of symptoms or impairment not encompassed by the schedular criteria, so as to render those criteria inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has reported being employed throughout the period under consideration, and the matter of entitlement to a total disability rating based on individual unemployability due to service connected disability is not raised by the record. ORDER A compensable rating for allergic rhinitis is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs