Citation Nr: 1324429 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-00 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for dysthymic disorder in excess of 10 percent prior to April 29, 2009 and in excess of 50 percent thereafter. 2. Entitlement to an increased (compensable) rating for chronic allergic rhinitis and sinusitis. 3. Entitlement to an increased (compensable) rating for allergic bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from November 1985 to August 1995. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied an increased rating for dysthymia in excess of 10 percent and denied compensable ratings for chronic allergic bronchitis and allergic rhinitis and sinusitis. In a subsequent May 2010 rating decision, the RO granted a 50 percent evaluation for dysthymia, effective April 29, 2009. The Board finds that, although the RO granted a higher rating for service-connected dysthymia from April 29, 2009, a veteran is presumed to seek the maximum available benefit for a disability. Accordingly, the appeal for an increased disability rating for dysthymia remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). On her November 2009 substantive appeal, the Veteran indicated that she wanted a hearing before the Board via video conference. In an August 2010 written statement, the Veteran withdrew her request for a hearing. Therefore, the request for a hearing has been withdrawn. FINDINGS OF FACT 1. For the rating period from October 23, 2008 to April 29, 2009, the Veteran's PTSD has been manifested by symptoms of depression, irregular sleep, low mood, depression, lost of interest, and decreased energy; the symptoms cause some occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the rating period from October 23, 2008 to April 29, 2009, the Veteran's dysthymic disorder has not been characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 3. For the rating period after April 20, 2009, the Veteran's dysthymic disorder has not been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 4. For the entire increased rating period on appeal, the Veteran's rhinitis and sinusitis has not manifested nasal polyps or greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side; 1 or 2 incapacitating episodes per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment; or 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 5. It was factually ascertainable on October 23, 2007, one year prior to filing her claim for a compensable rating, that the Veteran was administered daily inhalational therapy for allergic bronchitis (asthma). CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a higher rating of 30 percent, but no higher, for dysthymic disorder for the period from October 23, 2008 to April 29, 2009 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9433 (2012). 2. The criteria for a higher rating for dysthymic disorder in excess of 50 percent for the period beginning April 29, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9433 (2012). 3. For the entire increased rating period on appeal, the criteria for a compensable rating for chronic allergic rhinitis and sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Codes 6510, 6522 (2012). 4. The criteria for a 30 percent rating for allergic bronchitis (asthma) have been met from November 1, 2007. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6602 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, VCAA notice letter sent in November 2008 and May 2009 satisfied the provisions of 38 U.S.C.A. § 5103(a). In these letters, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. The Board finds that all necessary assistance has been provided to the Veteran. In December 2008 and March 2010, the RO provided the Veteran with VA examinations to assist in determining the extent of the Veteran's disabilities currently on appeal (dysthymia, sinusitis, rhinitis, and allergic bronchitis). As the examination reports were written after an interview with the Veteran, and contained specific findings indicating the nature of the Veteran's disabilities and symptomatology, the VA examinations are adequate for VA purposes, and there is no duty to provide an additional examination or medical opinion for this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, private and VA treatment records, and statements from the Veteran, her co-workers, and representative. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi,16 Vet. App. 183 (2002). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for an increased rating claim when 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 (2007). After review of the evidence of record, and as discussed in detail below, the Board finds that a staged rating is warranted for the Veteran's dysthymic disorder disability. In a claim for an increased rating, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. 3.400 (2012). An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.400(o)(1) and (2) (2012); see Harper v. Brown, 10 Vet. App. 125, 126 (1997); VAOPGCPREC 12-98. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. I. Increased Rating for Dysthymic Disorder The Veteran is in receipt of a 10 percent rating for dysthymic disorder under Diagnostic Code 9433, from February 19, 1997 to April 29, 2009, and a 50 percent disability rating thereafter. The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2012). A rating of 10 percent is warranted for dysthymic disorder if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A rating of 30 percent is warranted for dysthymic disorder if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. A. Dysthymic Disorder Prior to April 29, 2009 Prior to April 29, 2009, the Veteran's dysthymic disorder was rated as 10 percent disabling under Diagnostic Code 9433. Upon review of all the evidence, lay and medical, the Board finds that, for the rating period prior to April 29, 2009, (October 23, 2008 to April 29, 2009), the Veteran's dysthymic disorder has been characterized by depression, sleep impairment, lack of interest in social activities, reduced interest in pleasurable activities, low energy, and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board finds that the evidence is at least in equipoise as to whether a 30 percent rating is warranted for the increased rating period from October 23, 2008 to April 29, 2009. In this regard, the evidence of record includes a December 2008 VA mental health examination report. Prior to conducting the evaluation, the VA examiner noted that he reviewed the claims file and interviewed the Veteran. The Veteran reported low mood, depression, sleep irregularity, decreased energy, and loss of interest in pleasurable activities. Upon mental status examination, the December 2008 VA examiner noted no evidence of any disorganization in her formal thought process, conversation, or logic. Delusions, hallucinations, and psychosis were not present. Suicidal and homicidal ideations were denied and the Veteran was oriented to time, place, and person. Panic attacks were not noted. The Veteran's mood was depressed, affect was sad and congruent with the content of the conversation. The VA examiner stated that the Veteran's depressive symptoms were generally mild and caused her significant psychological distress, but resulted in minimal impairment of her occupational functioning. Her reluctance to participate in social activities might have adversely affect her chances for advancement and might have led to some interpersonal difficulties on the job; however, her overall capacity to work was unaffected by her depressive symptoms. The VA examiner assigned a GAF score of 60, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See DSM-IV at 46-47. In a statement dated April 2009, the Veteran noted that she had difficulty sleeping, which affected her work. Notably, the Veteran reported napping at work during lunch instead of eating. She also reported memory loss and depression. Based on the evidence of record, both lay and medical, the Board finds that a rating of 30 percent is warranted for dysthymic disorder for the increased rating period from October 23, 2008 to April 29, 2009. The lay and medical evidence of record reflects symptoms of depressed mood, sleep impairment, and memory loss as contemplated by the 30 percent rating criteria. Further, although the December 2008 VA examiner noted that the Veteran's overall capacity to work was unaffected by her depressive symptoms, he also reported that her reluctance to participate in social activities might adversely affect her chances for advancement and might lead to some interpersonal difficulties on the job. The Veteran also stated that her sleep impairment affects her ability to perform on the job. See Veteran's April 2009 statement. Moreover, the GAF score of 60 reflects moderate symptoms or moderate difficulty in social, occupational, or school functioning. As such, based on this evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that a 30 percent evaluation for dysthymic disorder is warranted for the increased rating period from October 23, 2008 to April 29, 2009. The Board next finds that, for the entire initial rating period, the Veteran's dysthymic disorder has not been characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that without those examples, differentiating between rating evaluations would be extremely ambiguous. Id. at 442. With this in mind, the weight of the lay and medical evidence shows that the Veteran's overall dysthymic disorder disability, for the period from October 23, 2008 to April 29, 2009, is already adequately contemplated by a 30 percent rating. The Veteran does suffer from sleep problems, but this is specifically listed under the criteria for a 30 percent rating. Although the Veteran does manifest symptoms of depression and low mood as noted in the December 2008 VA examination, this has not affected her ability to function independently. The Veteran has not reported symptoms of anxiety, suspiciousnessnes, panic attacks, impaired judgment, or impaired abstract thinking. Further, the Veteran denied both suicidal or homicidal ideations. The December 2008 VA examiner also found that the Veteran's depressive symptoms were generally mild and resulted in minimal impairment of her occupational functioning. The Board has considered and weighed statements from the Veteran regarding the severity of her depression symptoms. The Board finds that the Veteran is competent to provide such testimony regarding symptoms. See Layno, 6 Vet. App. 465, 469. Further, the Board finds that the Veteran's statements with regard to her depression symptoms have been consistent and, therefore, are credible. Although the Board finds that the Veteran is competent and credible to report symptoms, for the reasons discussed above, the Board finds that the Veteran's dysthymic disorder is not of such severity as to cause occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. For these reasons, the Board finds that a 30 percent rating, but no higher, for dysthymic disorder is warranted for the increased rating period from October 23, 2008 to April 29, 2009. B. Dysthymic Disorder After April 29, 2009 In a statement dated November 2009, the Veteran reported that she experienced trouble sleeping, irritability, anger, and no desire to participate in social activities. According to the Veteran, her medication (Wellbutrin) was increased due to an increase in depressive symptoms. Pursuant to a subsequent May 2010 rating decision, the Veteran's dysthymic disorder disability was evaluated as 50 percent disabling effective April 29, 2009. Upon review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence does not warrant a higher 70 percent rating for dysthymic disorder. Specifically, the Veteran dysthymic disorder has not manifested in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In a private treatment note dated April 29, 2009 (the effective date of the 50 percent rating), the Veteran reported moderate difficulty sleeping. She stated that she was on medication a few years ago, but stopped taking them because she felt they made her gain weight. She also reported decreased interest and concentration was noted as "fair" at work. The Veteran denied suicidal ideation. The Veteran was afforded a VA examination in March 2010 to assist in determining the level of severity of her dysthymic disorder. During the evaluation, the Veteran reported depressed mood, low energy, decreased interest in most activities, poor self-esteem, and social anxiety related to her hair loss. Symptoms were noted as "moderate." Upon mental status examination, the VA examiner noted appearance, speech, attitude, judgment, memory, thought process, and thought content were normal or unremarkable. The Veteran was oriented to time, place, and person. Affect was constricted and mood was depressed. Delusions, hallucinations, panic attacks, suicidal or homicidal ideations were not present. The Board finds that the March 2010 VA mental status examination reveals that the Veteran has not demonstrated most symptoms as contemplated by the 70 percent rating criteria, to include: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; and neglect of personal appearance and hygiene. Further, the March 2010 VA examiner noted that the Veteran had lost two weeks of work in the last 12-month period as she reported that she had lack of energy or was too self-conscious to go to work. The VA examiner diagnosed dysthymic disorder and assigned a GAF score of 55, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. The examiner further opined that there was evidence of reduced reliability and productivity at work due to symptoms of dysthymic disorder. Specifically, the examiner noted that the Veteran missed work occasionally because of depressive symptoms and she was also less productive as a result of decreased energy, mildly impaired concentration, and reduced interest. Upon review of the evidence of record, the Board finds that the Veteran has not demonstrated occupational and social impairment in most areas such as work, family, judgment, thinking, or mood. Further, as noted above, the Veteran has not demonstrated most symptoms as contemplated by the 70 percent rating criteria. The Veteran has experienced depression, low energy, low self-esteem, and decreased interest in social activities; however, these symptoms are contemplated in the 50 percent rating criteria and do not rise to the level of severity as prescribed by a 70 percent disability evaluation. For these reasons, the Board finds that a rating in excess of 50 percent for the period beginning April 29, 2009 is not warranted. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. II. Compensable Rating for Allergic Rhinitis and Sinusitis The Veteran's service-connected allergic rhinitis and sinusitis is currently rated as noncompensable, for the period beginning August 24, 1995, under 38 C.F.R. § 4.97, Diagnostic Codes 6510 (chronic sinusitis) and 6522 (allergic or vasomotor rhinitis). The Veteran filed her claim for an increase on October 23, 2008 seeking a higher evaluation. Therefore, the rating period on appeal extends from October 23, 2007, one year prior to the date of receipt of the increased rating claim. See 38 C.F.R. § 3.400(o)(2) (2012). Under DC 6522, allergic rhinitis warrants a 10 percent rating when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A maximum rating of 30 percent is warranted when polyps are present. 38 C.F.R. § 4.97, Diagnostic Code 6522. The Board finds that, upon review of all the evidence of record, the Veteran's rhinitis has not included nasal polyps. In a December 2008 VA sinus examination, the VA examiner performed a physical examination of the Veteran's nose, and reported normal airflow through both nostrils and the nasal septum was deviated to the left. No polyps were noted. Similarly, in the March 2010 VA sinus examination, the VA examiner noted no history of nasal polyps or surgeries. VA and private treatment records do not reflect any nasal polyps for the entire increased rating period on appeal. The Board further finds that the evidence of record demonstrates that the Veteran's allergic rhinitis has not manifested greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. Both the December 2008 and March 2010 VA examiners noted no obstruction of nasal passages. VA and private treatment records reveal continued treatment for allergic rhinitis, but no evidence of obstruction of nasal passages greater than 50 percent on both sides or complete obstruction on one side. For these reasons, the Board finds that an increased (compensable) rating for chronic allergic rhinitis and sinusitis is not warranted for any period on appeal under Diagnostic Codes 6522. The Board has also considered whether a compensable rating is warranted under Diagnostic Code 6510 for chronic pansinusitis, found in the General Rating Formula for Sinusitis, Diagnostic Codes 6510 through 6514, under 38 C.F.R. § 4.97. Under Diagnostic Codes 6510 through 6514, a noncompensable or zero percent rating is assigned where sinusitis is detected by X-ray only. A 10 evaluation is assigned where there are 1 or 2 incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned where there are 3 or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Finally, a 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The regulation defines an incapacitating episode as one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. After a review of all the evidence, lay and medical, the Board finds that the evidence does not demonstrate a 10 percent evaluation for chronic sinusitis for the entire increased rating period on appeal. In this regard, the evidence reveals that the Veteran has not experienced 1 or 2 incapacitating episodes per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment. During the December 2008 VA examination, the examiner noted no incapacitating episodes for sinusitis. During flare-ups, the examiner stated that when the Veteran was exposed to either dust, grass, or pollen, she would experience a stuffy nose, sneezing, itchy and watery eyes, and shiners (darkness and swelling underneath the eyes). The Veteran also reported that she kept her medicine at work as to avoid missing days at work. In the most recent March 2010 VA examination report, the examiner noted that the Veteran used over-the-counter allergy medications with no side effects. The examiner further stated that the Veteran did not experience incapacitating episodes. As for non-incapacitating episodes, the March 2010 VA examiner noted that they were seasonal with change of weather. Use of antibiotic treatment, as contemplated by a 10 percent evaluation under Diagnostic Code 6510, was not noted in either of the VA examination reports discussed above. The Board further finds that the evidence of record does not reveal that the Veteran experiences 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. See Diagnostic Code 6510. The December 2008 VA examiner noted no tenderness, prulent discharge, or crusting of the sinuses. During the March 2010 VA evaluation, the VA examiner stated that there was sinus pressure in the bilateral ethoid area; however prulent discharge, crusting, or headaches were not noted. A review of VA and private treatment records reveal that the Veteran continued to be treated for sinusitis with inhalers and allergy medication; however, incapacitating episodes (requiring bed rest and treatment by a physician) and the use of antibiotics was not prescribed. Further, there is no reported headaches, purulent discharge, or crusting during non-incapacitating episodes. For these reasons, the Board finds that the weight of the evidence is against a finding of a compensable rating for allergic rhinitis and sinusitis. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. III. Compensable Rating for Allergic Bronchitis (asthma) A November 1995 rating decision granted service connection for allergic bronchitis and assigned a noncompensable rating effective August 24, 1995 under Diagnostic Code 6602 (bronchial asthma). In the January 2009 rating decision, for which the Veteran filed a notice of disagreement, the RO continued the noncompensable rating under Diagnostic Code 6600 (chronic bronchitis). As the record reflects diagnoses for both allergic bronchitis and asthma, the Board will consider both Diagnostic Codes in order to afford the Veteran the most favorable rating possible. As noted above, the Veteran filed her claim for an increased rating on October 23, 2008 seeking a higher evaluation for asthma. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.400(o)(1) and (2). Therefore, the rating period on appeal extends from October 23, 2007, one year prior to the date of receipt of the increased rating claim. See 38 C.F.R. § 3.400(o)(2) (2012). However, in determining which rating is appropriate in this instance, the Veteran's disability must be viewed in relation to its whole recorded history. As such, the Board will also consider evidence dated prior to October 23, 2007, but only to the extent that it is found to shed light on the Veteran's disability picture as it relates to the rating period on appeal. See 38 C.F.R. § 4.1. The Veteran's service-connected allergic bronchitis (asthma) was initially rated under 38 C.F.R. § 4.97, Diagnostic Code 6602. See November 1995 rating decision. Under Diagnostic Code 6602, a 10 percent evaluation is assigned for FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is assigned for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation is assigned for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Finally, a 100 percent evaluation is assigned for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. See 38 C.F.R. § 4.97, Diagnostic Code 6602 (2012). Upon review of the evidence of record, the Board finds that the Veteran's allergic bronchitis (asthma) warrants a 30 percent rating beginning October 23, 2007. Specifically, in a June 2007 private treatment note from Dr. G.K., the doctor noted a past medical history of asthma and current medications listed were, in pertinent part, Advair b.i.d. (bis in die, Latin for "twice daily"). Advair is an inhaler used to treat asthma. In a subsequent November 2007 treatment note from Dr. G.K., it was noted that a refill was provided for Advair with an assigned dosage of one puff, b.i.d. The evidence of record demonstrates continued use of an inhaler for asthma. See May 2008, June 2008, and January 2009 treatment notes from Dr. G.K.; see also March 2010 VA examination report. For these reasons, the Board finds that the Veteran's allergies bronchitis (asthma) has required daily inhalational therapy as contemplated under the 30 percent rating under Diagnostic Code 6602. Further, the Board finds that it was factually ascertainable that the Veteran was on daily inhalational therapy on October 23, 2007, as evidenced by the June 2007 and November 2007 treatment notes from Dr. G.K., showing routine treatment with Advair. The Board further finds that a higher evaluation in excess of 30 percent under Diagnostic Code 6602 is not warranted for any period on appeal. A 60 percent evaluation is assigned for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. At the December 2008 VA examination, Pulmonary Function Testing (PFT) indication an FEV-1 of 104 percent predicted prebronchodilator and 116 percent postbronchodilator, an FEV-1/FVC of 74 or 90 percent predicted prebronchodilator. In the March 2010 PFT report, results reflected a FEV-1 of 107 percent predicted and FEV-1/FVC of 107 percent predicted. Moreover, the Board finds that VA and private treatment records do not reveal that the Veteran has had at least monthly visits to a physician for required care of exacerbations, or; intermittent courses of systemic corticosteroids. The Board has also considered whether a higher evaluation, in excess of 30 percent, is warranted under Diagnostic Code 6600 (chronic bronchitis). Under this Diagnostic Code, a 60 percent rating is warranted for FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, DLCO (SB) of 40 to 55-percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, FEV-1/FVC less than 40 percent, DLCO (SB) less than 40-percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episode(s) of acute respiratory failure, or requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6600 (2012). As noted above, the Veteran's PFT results have not demonstrated FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent. Further DLCO (SB) was noted as 64 percent predicted in the December 2008 VA examination report and as 101 percent predicted in the March 2010 VA examination report. Maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) has not been noted in the record. Accordingly, based on the evidence of record, the Board finds that a higher rating in excess of 30 percent under Diagnostic Code 6600 is not warranted for any increased rating period on appeal. Moreover, the Board has also considered other Diagnostic Codes, including Diagnostic Codes 6601 (bronchiectasis), 6603 (pulmonary emphysema) and 6604 (chronic obstructive pulmonary disease); however, the Board finds that they are not applicable as the evidence does not show that the Veteran has been diagnosed with these conditions. Further, the record does not indicate that the Veteran has been diagnosed with any other respiratory disabilities that would warrant consideration under additional rating codes. For these reasons, and upon review of all the evidence of record, the Board finds that a 30 percent evaluation, but no higher, is warranted for allergic bronchitis (asthma) under Diagnostic Code 6602 for the increased rating period beginning October 23, 2007. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for dysthymic disorder, chronic allergic bronchitis (asthma), and allergic rhinitis and sinusitis. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for those disabilities. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's dysthymia, chronic allergic bronchitis (asthma), and allergic rhinitis and sinusitis are contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. A comparison between the level of severity and symptomatology of the Veteran's disabilities as discussed above, with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on her daily life. As for the Veteran's dysthymic disorder, she has described symptoms of depression, irregular sleep, low mood, lost of interest, and decreased energy. Symptoms pertaining to rhinitis and sinusitis include a stuffy nose, sneezing, and itchy and watery eyes. The Veteran's asthma requires daily inhalational therapy. These symptoms and treatment are fully contemplated by the assigned diagnostic criteria. In the absence of exceptional factors associated with these disorders, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, a claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the March 2010 VA examination report it was noted that the Veteran was employed full-time. As such, the Board finds that a TDIU claim is not raised by the record. ORDER For the increased rating period from October 23, 2008 to April 29, 2009, a 30 percent rating, but no higher, for dysthymic disorder is granted. An increased rating for dysthymic disorder in excess of 50 percent from April 29, 2009 is denied. An increased (compensable) rating for chronic allergic rhinitis and sinusitis is denied. For the increased rating period beginning October 23, 2007, a rating of 30 percent, but no higher, for allergic bronchitis (asthma) is granted. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs