Citation Nr: 1319845 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 11-30 643 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to an increased, compensable evaluation for the service-connected allergic rhinitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from July 1954 to April 1958. He had additional service in the Air Force Reserve from 1958 to 1965. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the RO. In March 2013, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In April 2013, the Board remanded the claim to the RO for further development. A review of the Virtual VA paperless claims processing system reveals VA treatment records dated from January 2007 to March 2012 that are not pertinent to the issue on appeal. In a February 2010 statement, the Veteran submitted a petition to reopen the claim of service connection for the residuals of frostbite to the lower extremities. As this issue has not been addressed by the RO, the Board does not have jurisdiction and must refer the matter to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The service-connected allergic rhinitis is shown to be manifested by nasal congestion, drainage, dry nasal mucus, difficulty breathing through his nose, and epistaxis and to be productive of a disability picture that more nearly approximates that of greater than 50 percent obstruction of the nasal passages on both sides; neither polyps nor sinusitis is demonstrated. CONCLUSION OF LAW The criteria for the assignment of a 10 percent rating, but not higher for the service-connected allergic rhinitis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.97 including Diagnostic Code 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided VCAA notice letters to the Veteran in April 2011 and June 2011. The Appeals Management Center (AMC) provided additional notice in April 2013. The April 2011 and June 2011 letters were provided to the Veteran before initial adjudication of his claim for a compensable evaluation for the service-connected allergic rhinitis disability. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claims for increased ratings as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have and submit evidence in support of his claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letters dated in April 2011 and June 2011 provided this notice. The Veteran was provided notice of the specific disability rating criteria pertinent to his increased rating claim for the service-connected allergic rhinitis disability in a September 2011 Statement of the Case. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, the Court held in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009) that the VCAA notice in a claim for increased rating need not be "veteran specific" or include reference to impact on daily life or rating criteria. Therefore, he has received legally sufficient notice. The Board finds that all relevant, available evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. Service treatment and VA treatment records are associated with the claims file. The Board also notes that there is no identified relevant evidence that needs to be obtained in this regard. In the April 2013 remand, the Board noted that, during the March 2013 hearing, the Veteran reported being treated for a nasal polyp that burst in February 2012. He stated that he was treated by a nurse, but he did not indicate whether he was treated in a VA or private facility. See hearing transcript, pp. 9-10. In the April 2013 remand, the Board directed the RO to "take all indicated action to contact the Veteran and ask that he adequately identify any VA or private treatment records from February 2012 reflecting that a nasal polyp burst in his nose." In April 2013, the AMC associated current VA treatment records with the Veteran's Virtual VA record. However, as noted, the VA treatment documents associated with the record were either duplicative or not relevant to the issue on appeal. In April 2013 correspondence, the AMC requested that the Veteran complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information, identifying the private health care provider who treated him when a nasal polyp burst in his nose, so the AMC could obtain the treatment information. The AMC also advised the Veteran that he could obtain and send the information himself. The Veteran did not respond to the April 2013 letter. As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded VA examinations in May 2011 and most recently in May 2013. With respect to the VA examinations that were provided, the Board notes that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Veteran was afforded a VA examination in May 2013 to rate the current extent and severity of the service-connected allergic rhinitis disability, in compliance with the April 2013 remand. In the remand, the Board noted that, during the March 2013 hearing, the Veteran reported being treated for a nasal polyp that burst in February 2012. Therefore, a new examination was required in the aftermath of the incident to confirm whether the Veteran had nasal polyps. There has been no allegation that the May 2011 or May 2013 VA examinations were inadequate. The most recent VA examination, dated in May 2013, was based on review of the claims file, taking a relevant history from the Veteran, and clinical evaluation of the Veteran. The examination reports are adequate; the information provided by the VA examiners is supported by a thorough history, fully reasoned explanations and clinical findings that will be discussed. The need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. The VA examinations, taken as a whole, are fully sufficient to evaluate the appeal. In addition, no other probative medical or lay evidence demonstrates a worsening of the service-connected disability. Therefore, a new VA examination to evaluate the severity of the service-connected allergic rhinitis is not necessary. Under the circumstances, the Board finds no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 (2012). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for allergic rhinitis was granted in April 2004. The disability was assigned a noncompensable evaluation, effective on December 30, 2004. This evaluation has remained in effect since that time. In March 2011, the Veteran submitted a claim for an increased, compensable evaluation for the service-connected allergic rhinitis. The RO evaluated the Veteran's allergic rhinitis as noncompensably disabling under under 38 C.F.R. § 4.97, Diagnostic Code 6522. Under Diagnostic Code 6522, allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, is rated as 10 percent disabling. Allergic or vasomotor rhinitis with polyps is rated as 30 percent disabling. The General Rating Formula for sinusitis provides a noncompensable evaluation for sinusitis that is detected by x-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is provided following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97 and Note. Factual Background and Analysis In a February 2010 statement, the Veteran reported that his service-connected allergic rhinitis symptoms had continued to increase in severity. He reported that he took medication daily to control his symptoms. He also noted that he constantly had a red nose due to his symptoms. During the May 2011 VA examination, the Veteran reported having allergic rhinitis symptoms had remained the same as when he was evaluated during an October 2009 VA examination. He noted that he had a perennial occurrence of his nasal allergy symptoms. He denied having any new diagnostic or interventional procedures and new symptoms. The Veteran reported using a saline nasal wash, Nasonex nasal spray and Claritin, and he indicated that the current treatments were effective in relieving his symptoms. He reported that his current rhinitis symptoms included nasal congestion, excess nasal mucous, an itchy nose, watery eyes, and sneezing. He denied any current sinus symptoms. The examiner noted that the Veteran had 20 percent left nasal obstruction and 10 percent right nasal obstruction. No nasal polyps were present. The examiner noted that the Veteran had septal deviation that was not due to trauma and that the larynx appeared normal. There was no permanent hypertrophy of turbinates from bacterial rhinitis; rhinoscleroma; tissue loss, scarring, or deformity of the nose; or evidence of Wegener's granulomatosis or granulomatous infection. The Veteran reported retiring from his usual occupation as a Dupont worker in 1991 and being medically retired due to an unspecified physical problem. The examiner noted that the Veteran's service-connected allergic rhinitis had no significant effects on his usual occupation or daily activities. In an October 2011 statement, the Veteran reported constantly using Claritin and nasal spray to control his service-connected allergic rhinitis symptoms. During the March 2013 hearing, the Veteran testified that a polyp burst in his nose in 2012. Since that time, he stated that his nose bled "quite a bit" almost every day. He reported having symptoms that were present year-round. During the May 2013 VA examination, the Veteran reported a worsening of his allergic rhinitis symptoms, including increased congestion that made it difficult for him to breathe through his noise. He also noted some episodes of epistaxis with mild nasal discomfort. He indicated that he had a bad episode of epistaxis in 2012. He had used Flunisolide nasal spray in the past, but not for two months. He also used a mixture of Vaseline and Vick's Vaporub ointment in his nasal passage. The Veteran stated that he continued to have nasal congestion, drainage, and dry nasal mucus and partially breathed out of his mouth when he became very congested. He denied any voice changes, hoarseness, weight loss, anosmia, fever, ear pain, dysphagia or odynophagia. The examiner noted that the Veteran's nasal passages were not greater than 50 percent obstructed on both sides and that there was not complete obstruction on one side due to rhinitis. There was no permanent hypertrophy of the nasal turbinates, nasal polyps or granulomatous conditions. An x-ray study of the sinuses showed no definite abnormalities. The examiner opined that the service-connected allergic rhinitis did not impact his activities of daily life or his occupational or social functioning. She also noted that the severity of the service-connected allergic rhinitis had not changed since the last examination in May 2011. She added that there was no increase in dosing or number of medications or documented visits to the Veteran's primary care physician due to uncontrolled symptoms. She reported that the Veteran's symptoms were stable. After carefully reviewing the entire, including the Veteran's credible lay assertions, the Board finds that the service-connected allergic rhinitis is productive of a disability picture that more closely resembles that of 50 percent obstruction of both nasal passages. Under Diagnostic Code 6522 for allergic rhinitis, a 10 percent rating is warranted without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted for a diagnosis of allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. In rendering this decision, the Board has considered the lay evidence that the Veteran has offered in support of his claim. The Veteran is competent to note that he has experienced symptoms associated with his allergic rhinitis including epistaxis. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (stating that the veteran as a lay person is competent to report information of which he or she has personal knowledge, i.e., information that he can gather through his senses). To the extent that the Board accepts the Veteran's assertions as being credible, it follows that the service-connected allergic rhinitis, while apparently subject to periods of remission and exacerbation, must be found to cause impaired breathing through the nose due to significant congestion of the nasal passages that requires ameloriative attention on a daily basis. This would be consistent with the Veteran's reports of having a disease process that appears to be manifested by chronic intermittent engorgement of the nasal mucous membrane. As such, the Board must extend the benefit of the doubt to the Veteran in evaluating the severity of the service-connected disability by assigning the 10 percent rating in this case. During the March 2013 hearing, the Veteran testified that he had a nasal polyp in 2012. To warrant a maximum 30 percent evaluation for allergic rhinitis, there must be evidence of polyps. However, the Veteran has not submitted credible evidence showing treatment for his alleged polyp. In addition, the May 2011 and May 2013 VA examiners found no evidence of polyps on objective examination. Diagnosis of nasal polyps falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Indeed, diagnosis of such requires specialized medical expertise, examination, and diagnostic studies. The evidence as outlined does not show that a higher or additional disability evaluation is available under any other potentially relevant Diagnostic Code. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the service-connected allergic rhinitis disability picture is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show an exceptional disability picture so that the available schedular evaluation for the service-connected disability is rendered inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaint of nasal congestion and related symptoms is fully considered in the assignment of the 10 percent evaluation. Based on the foregoing, the Board finds that referral for an extraschedular evaluation for the service-connected cranial nerve disability under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An increased rating of 10 percent, but no more for the service-connected allergic rhinitis is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs