Citation Nr: 1319388 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-04 735 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota THE ISSUES 1. Entitlement to a compensable rating for allergic rhinitis prior to January 15, 2013, and to a disability rating in excess of 10 percent from January 15, 2013. 2. Entitlement to a compensable rating for tension headaches prior to December 7, 2009, and to a disability rating in excess of 10 percent from December 7, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from May 2002 to July 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision, by the Fargo, North Dakota, Regional Office (RO), which denied the Veteran's claims of entitlement to compensable ratings for tension headaches and for seasonal allergies. In March 2008, the RO confirmed its previous denial of the Veteran's claims for compensable ratings for tension headaches and seasonal allergies. On October 13, 2011, the Board issued a decision that denied the Veteran's claim of entitlement to a compensable rating for tension headaches. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims. In May 2012, the Veteran's representative and the VA General Counsel filed a joint motion to remand. In June 2012, the Court granted the joint motion and remanded the case to the Board for readjudication consistent with the motion. By the October 2011, the Board remanded the claim of entitlement to a compensable evaluation for seasonal allergies for further evidentiary development. Thereafter, in a January 2013 rating action, the RO re-characterized the disability as allergic rhinitis and increased the evaluation from 0 percent to 10 percent, effective from January 15, 2013. A supplemental statement of the case (SSOC) was issued in January 2013. As for the tension headache disability, the RO also assigned a 10 percent rating, effective from December 7, 2009. This was done without explanation. As the awards of compensable ratings did not represent a total grant of benefits available on appeal, the claims for higher ratings remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). As discussed below, the Board finds that there was substantial compliance with its remand; thus, it may proceed with a decision on the rhinitis claim. See Stegall v. West, 11 Vet. App. 268 (1998). In her substantive appeal (VA Form 9), received in February 2008, the Veteran requested a hearing before a Veterans Law Judge (VLJ) at the Fargo RO. The Veteran was scheduled for a hearing on June 4, 2008. She was provided notice of the hearing in April 2008; she failed to report for the scheduled hearing and has not provided any cause for her failure to appear and has not requested that the hearing be rescheduled. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704(d) (2012). (The issue of entitlement to higher ratings for tension headaches is addressed in the remand that follows the decision below.) FINDINGS OF FACT 1. Prior to January 15, 2013, the Veteran's allergic rhinitis was manifested by occasional nasal congestion and itchy eyes with sneezing, without nasal polyps or obstruction greater than 50 percent of both nasal passages or complete obstruction of one nasal passage. 2. Since January 15, 2013, the Veteran's allergic rhinitis has not been manifested by the presence of polyps. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for allergic rhinitis prior to January 15, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.31, 4.97, Diagnostic Code 6522 (2012). 2. The criteria for a disability rating in excess of 10 percent for allergic rhinitis since January 15, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.97, Diagnostic Code 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in March 2007 from the RO to the Veteran, which was issued prior to the RO decision in June 2007. Additional letters were issued in October 2011 and January 2013. Those letters informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notice. The Veteran's electronic Virtual VA claims file also has been reviewed and no relevant evidence was located there. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that VA has complied with the duty-to-assist requirements of the VCAA and the implementing regulations. Neither the Veteran nor her representative has contended that any evidence relative to the issue decided herein is absent from the record. The Veteran has been afforded a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The report reflects that the examiner solicited a history of symptoms from the Veteran, examined the Veteran, and provided findings necessary to apply the rating criteria. Therefore, the examination is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran. No useful purpose would be served in remanding the questions addressed herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background By a rating action in March 2005, the RO granted service connection for seasonal allergies; a 0 percent disability rating was assigned, effective July 10, 2004. The Veteran's claim for a compensable evaluation for seasonal allergies (VA Form 21-4138) was received in January 2007. In conjunction with her claim, the Veteran was afforded a VA examination in April 2007. At that time, she reported having had allergy problems for a couple of years starting when she was in Italy. The Veteran indicated that her symptoms included nasal congestion and itchy eyes, with sneezing. She noted that she had been taking Claritin for the allergies on a daily basis, but not now. She had also been on Flonase off and on for about a year but did not find it to be helpful. She had not had allergy testing. She had not had any problems with asthma, hives, urticaria or eczema. The Veteran related that spring was usually the season when she had problems. She also reported having had problems with headaches since shortly after basic training. On examination, the pharynx was normal; nares were patent. No abnormalities were noted over the frontal or maxillary sinuses. No cervical, axillary or inguinal nodes were noted. Chest was clear to auscultation. The pertinent diagnosis was allergic rhinitis. Received in August 2007 was an internet article regarding the symptoms and treatment for sinusitis and nasal congestion. Also received in August 2007 were treatment reports from the Aviano Air Base and Minot Air Force Base, dated from June 2004 to May 2007. These records show that the Veteran received treatment for symptoms of allergic rhinitis. The Veteran was seen in March 2005 for evaluation of sinus pain and pressure over the past 4 to 5 days; she denied treating the symptoms. She also reported frontal headaches, and watery and itchy eyes. The assessment was upper respiratory infection; she was prescribed Afrin, Deconsal and Claritin. In May 2007, the Veteran was seen for follow-up evaluation of her allergy symptoms; at that time, she complained of eyes watering and itching, nasal discharge, and nasal passage blockage; she denied any earache, sore throat or sinus pain. The assessment was allergic rhinitis. On May 17, 2007, the Veteran underwent an allergy consultation; it was determined that she had allergic rhinitis by history with an allergic reaction that day. The Veteran was afforded another VA examination in January 2013. At that time, the Veteran indicated that, since the last examination, she had chronic daily congestion that was constant. She received no help from multiple allergy medications including Allegra and many nasal sprays. It was noted that the Veteran had rhinitis. It was noted that the Veteran had greater than 50 percent obstruction of the nasal passage on both sides; however, she did not have complete obstruction, permanent hypertrophy of the nasal turbinates, or nasal polyps. The examiner noted that the right nare was 60 percent obstructed and the left one 80 percent obstructed. The pertinent diagnosis was allergic rhinitis. The examiner noted that the Veteran's allergic rhinitis did not impact her ability to work. III. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. 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. When, after consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. When rating the veteran's service-connected disabilities, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2013). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Veteran's allergic rhinitis has been rated under the provisions of Diagnostic Code 6522. Under Diagnostic Code 6522 for allergic rhinitis, a 10 percent rating is warranted where there are no polyps, but there is greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 30 percent disability evaluation is for application where the evidence demonstrates polyps. 38 C.F.R. § 4.97. Upon review of the relevant medical evidence of record, for the period prior to January 15, 2013, the Board concludes that the evidence does not support a finding that the Veteran is entitled to a compensable disability rating for allergic rhinitis. During that period, the Veteran reported the presence of nasal congestion, watery and itchy eyes. However, there was no evidence of polyps and the Veteran did not suffer from nasal airway obstruction of greater than 50 percent on both sides, or complete obstruction on one side, as noted in the treatment records from the Air Bases and the results of the April 2007 VA examination. In fact, during the 2007 VA examination, the examiner reported open nasal passages. Therefore, the Board finds that the symptoms and reported clinical findings did not more nearly approximate the criteria for a 10 percent rating under Code 6522 during the period prior to January 15, 2013. 38 C.F.R. § 4.7. In addition, the Board further finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for allergic rhinitis for the period beginning January 15, 2013. Diagnostic Code 6522 makes clear that a 30 percent evaluation, the highest schedular evaluation available, is assigned for allergic or vasomotor rhinitis with polyps. The Veteran's claims file is completely negative for evidence of nasal polyps. In fact, in the January 2013 VA examination report, the VA examiner specifically indicated that the examination showed no polyps. Moreover, there is no lay evidence of assertion of polyps; therefore, the Board finds that, for the rating period from January 15, 2013, the Veteran's allergic rhinitis has not been manifested by symptomatology more nearly approximating the criteria required for a 30 percent rating under Diagnostic Code 6522. 38 C.F.R. § 4.97. The Board has considered the Veteran's and her representative's contentions with regard to the claim for higher ratings for allergic rhinitis. While the Board does not doubt the sincerity of the Veteran's belief that her disability is more severely disabling than reflected in the ratings assigned, as a lay person without the appropriate medical training or expertise, she is not competent to address the medical findings used to evaluate disability in the context of the rating criteria. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The statements from the Veteran clearly articulate the symptoms she experiences; however, even with consideration of those problems, higher ratings than those already assigned are not warranted for the Veteran's service-connected allergic rhinitis under the pertinent rating criteria. The Board further finds that there is also no evidence that the manifestations of the Veteran's service-connected allergic rhinitis are unusual or exceptional to demonstrate that the rating schedule is inadequate for determining the proper level of disability. Furthermore, as there is no indication in the record as to why the Veteran's case is not appropriately rated under the schedular criteria, extraschedular consideration is not warranted in this case, particularly where, as here, the signs and symptoms of the Veteran's service-connected allergic rhinitis are addressed by the relevant criteria as discussed above. Therefore, the Board finds that the criteria for referral for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (1) are not met. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 237 (1996). In reaching these conclusions, the Board has concluded that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). ORDER A compensable disability rating prior to January 15, 2013, and a rating in excess of 10 percent from January 15, 2013, for allergic rhinitis are denied. REMAND As noted in the Introduction, in June 2012, the Court granted the parties' Joint Motion for Remand and effectively vacated the Board's October 2011 decision denying the claim for a compensable rating for tension headaches. The basis for the Court's remand, as set out in the June 2011 joint motion, was that the Board had failed to provide an adequate statement of reasons and bases for its opinion that the Veteran's headaches were not prostrating. Significantly, the parties found that the Board failed to discuss and reconcile the findings of an April 2007 VA examination, which findings were internally inconsistent. Specifically, it was noted that while the examiner characterized the Veteran's headaches as not prostrating, he indicated that they required sleep to alleviate them. Accordingly, it was determined that it was an error for the Board to rely on the April 2007 examination report in reaching its decision. The Court vacated the Board's decision and remanded the matter for readjudication. With respect to the definition of prostrating, the rating criteria do not define "prostrating." The Board observes that neither the Court nor the United States Court of Appeals for the Federal Circuit has undertaken to define the term. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack). As noted in the Joint Motion, according to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in Dorland's Illustrated Medical Dictionary, (28th ed. 1994), p. 1367, in which "prostration" is defined as "extreme exhaustion or powerlessness." Accordingly, even though the RO has incidentally assigned a 10 percent rating from December 2009, which implies a finding that the Veteran's headaches are prostrating once in 2 months on average, there remains a question of whether the Veteran truly suffers from prostrating headaches pursuant to 38 C.F.R. § 4.124a, DC 8100. A new VA examination should therefore be undertaken in order to address this question. See Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions); see also 38 C.F.R. § 3.159(c) (4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Moreover, the Board notes that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of a Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). As the Veteran was last afforded a VA examination more than three years ago with respect to her tension headaches, another examination would aid in the adjudication of her claim. In light of the discussion above, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should obtain the names and addresses of all medical care providers who have treated the Veteran for her tension headaches since April 2007. After securing any necessary releases, obtain those records that have not already been associated with the claims file. Regardless of the Veteran's response, obtain all outstanding VA medical records. 2. Thereafter, the Veteran should be scheduled for a VA examination to ascertain the current severity of her service-connected tension headaches. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should provide a detailed account of all manifestations of the service-connected tension headaches found to be present. The examiner should thereafter provide an opinion regarding the frequency of the Veteran's tension headaches, and how often these headaches could be described as "prostrating" (see definitions above). The examiner should comment on whether the need for sleep to alleviate a headache is evidence of prostration. Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. If the examiner determines that no prostrating attacks occur, the reason for such a conclusion should be explained in detail. A complete rationale should be given for all opinions and conclusions expressed. 3. The AOJ must ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AOJ should re-adjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case. Thereafter, the Veteran and her representative should be given opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs