Citation Nr: 1325278 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-19 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for allergic and environmental rhinitis. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served from August 1957 to November 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the case was subsequently transferred to the RO in Philadelphia, Pennsylvania. It appears as though the Veteran may be contending that he is entitled to an earlier effective date for the grant of service connection for allergic and environmental rhinitis, but it has yet to be addressed by the agency of original jurisdiction (AOJ). Therefore, this potential issue is referred to the AOJ for any appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's service-connected allergic and environmental rhinitis has been evaluated at the maximum schedular rating since the date of service connection on April 19, 2005. 2. The Veteran's service-connected allergic and environmental rhinitis is not productiveof an exceptional disability picture that would exceed the average industrial impairment caused by such a disability, including such factors as frequent hospitalizations, frequent emergency treatment, or frequent absence from employment. CONCLUSION OF LAW The criteria for an increased evaluation for allergic and environmental rhinitis have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.97 Diagnostic Code 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that the originating agency provided the Veteran with the notice required under the VCAA, to include notice regarding the disability-rating and effective-date elements of his claim, by letter mailed in April and May 2005 and March 2006. The Board also notes that service treatment records have been obtained, as well as pertinent post-service records, and the Veteran has been afforded adequate VA examinations. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Accordingly, the Board will address the merits of the claim. Legal Criteria and Analysis Service connection was established for allergic and environmental rhinitis in the September 2009 rating decision on appeal and a 30 percent rating was assigned, effective April 19, 2005. The Veteran's allergic and environmental rhinitis has been evaluated under the criteria found at 38 C.F.R. § 4.97 Diagnostic Code 6522. The Board finds no other appropriate schedular criteria for evaluating this condition. Under Diagnostic Code 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 30 percent rating is warranted when polyps are present. There is no higher schedular rating. Here, the Veteran's allergic and environmental rhinitis has been evaluated at the maximum applicable schedular rating since the date of his claim on April 19, 2005. Therefore, no analysis is indicated for the period from the date of claim to the present as to the schedular rating. Hence, the preponderance of evidence is against assigning an increased rating. There is no reasonable doubt to be resolved as to whether a higher schedular evaluation is warranted for any period of time on appeal. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) (1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disability are contemplated by the schedular criteria. There is no indication from the evidence of record that the Veteran has had frequent hospitalizations or has received frequent emergency treatment for his allergic and environmental rhinitis. In sum, there is no indication that the average industrial impairment from the disability would be to such a degree as to warrant the assignment of a higher disability rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Thun, id. In this case, the Veteran has not alleged, nor does the evidence suggest, that he is rendered unemployable in substantial part due to the service-connected disability described above. Accordingly, this evidence does not raise a claim for a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2010). ORDER Entitlement to an initial disability rating in excess of 30 percent for allergic and environmental rhinitis is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs