Citation Nr: 1334629 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-06 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial compensable rating for service-connected allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In September 2011, the Board found that new and material evidence had not been received to reopen a claim of entitlement to service connection for degenerative disc disease of the lumbar spine, denied the Veteran's claim of entitlement to service connection for radiculopathy of the right lower extremity, as secondary to a lumbar spine disability, and remanded the issue of entitlement to an initial compensable rating for service-connected allergic rhinitis, for further development. The directed development has been completed, and the case has been returned to the Board for appellate consideration. The issue of entitlement to an increased rating for service-connected fibrocystic breast disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See January 2012 VA-Form 21-4138. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's allergic rhinitis is manifested by nasal congestion, without polyps, and without greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSION OF LAW The criteria for an initial compensable disability rating for service-connected allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.97, Diagnostic Code (DC) 6522 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Remand Compliance As noted above, this appeal involves a September 2011 Board remand for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-147 (1999). In this case, the Board finds that the RO substantially complied with the Board's September 2011 remand instructions. The instruction to request the Veteran to provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for her claimed condition, was satisfied by way of letter sent to the Veteran in November 2011. VA and private treatment records were then obtained and associated with the claims file. In February 2012, the Veteran was additionally provided a new VA examination to determine the current severity of her service-connected allergic rhinitis disability. The examiner reviewed the claims file, conducted necessary tests, and reported his clinical findings, to specifically include whether the Veteran has any nasal polyps, and whether the Veteran has greater than 50 percent blockage of the nasal passage of both sides or complete obstruction of one side. He additionally provided a complete rational for all opinions expressed. The Veteran and his representative were sent a Supplemental Statement of the Case and the claim was then returned to the Board. II. Veterans Claims Assistance Act of 2000 VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is warranted. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The VCAA applies to the instant claim. The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2006. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letters also informed the Veteran of how ratings and effective dates are assigned. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the 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) (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service and VA treatment records and associated them with his claims file. In addition, VA afforded the Veteran adequate examinations and obtained adequate expert opinions in September 2006 and August 2012. The September 2006 examiner considered the relevant history of the Veteran's condition, provided a detailed description of that condition, and provided an extensive analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure the examination is adequate). The February 2012 examination report thoroughly discussed the clinical findings and the Veterans' reported history as necessary to rate her disability under the applicable rating criteria. The Board notes that in response to the question "Does the Veteran now have or has he/she ever been diagnosed with a sinus, nose, throat, larynx, or pharynx condition?," the February 2012 examiner failed to correctly check "Chronic sinusitis" in addition to the checked "Allergic rhinitis." Indeed, review of the Veteran's VA treatment records show that a July 2010 VA medical provider identified the Veteran as having chronic sinusitis. This calls into question whether or not the file was adequately reviewed and adequately reported, and the Board concedes such an omission would be significant to the issue of entitlement to service connection. However, the purpose of the February 2012 examination, as directed in the September 2011 Board remand, is to obtain a more current picture of the Veteran's current allergic rhinitis disability. The remainder of the February 2012 examination report shows that the examiner completed a detailed report that clearly shows the current level of the Veteran's allergic rhinitis, as necessary to rate her disability under the applicable rating criteria. This report, in conjunction with the September 2006 examination report, provides an adequate picture of the Veteran's disability throughout the pendency of the claim. Indeed, neither the February 2012 nor the September 2006 VA examinations showed any current symptoms or diagnosis of sinusitis, while describing in detail the Veteran's allergic rhinitis and associated symptoms. To remand for purposes of correcting the record of history would serve no useful purpose other than to delay adjudication of the Veteran's claim. Accordingly, the Board concludes the examination reports are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. at 312. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. III. Merits of the Case By a February 2007 rating decision, the RO granted service connection for the Veteran's allergic rhinitis and assigned a 0 percent disability rating. On appeal, the Veteran asserts that a higher rating is warranted. Specifically, she asserts that she experiences wheezing, shortness of breath, stuffy nose, itchy nose and eyes, inner ear pain, and tearing of the eyes. The Veteran further specifies that she experiences rhinitis year round, but that her symptoms are more severe in the summer months and continue to worsen. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case with respect to the Veteran's claim of entitlement to an initial compensable rating for her service-connected allergic rhinitis, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. III.A. Schedular Consideration As noted above, currently the Veteran's disability rating for allergic rhinitis is 0 percent. The Veteran's allergic rhinitis is rated under DC 6522, allergic or vasomotor rhinitis. Under DC 6522, a 10 percent disability rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. A 30 percent disability rating is warranted for allergic or vasomotor rhinitis with polyps. Id. In every instance where the rating schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Applying the regulations to the facts of the case, the Board finds that the criteria for an initial compensable rating have not been met. The Veteran filed a claim of entitlement to service connection for a "sinus condition" in April 2005. Her service treatment records reflect that she was diagnosed with allergic nasopharyngitis in November 1977, with symptoms of congestion, coughing, and nasal drainage. In November 1978, the Veteran was diagnosed with rhinitis, and complained of a cold and cough. Private treatment records show that the Veteran was again diagnosed with and treated for allergic rhinitis in March 2000. August 2001 and February 2002 VA treatment records show that the Veteran experienced good relief from her allergic rhinitis when on medication. Additional VA treatment records reflect that in February and May 2002, the Veteran showed maxillary sinus pain, green sputum cough with nasal stuffiness and discharge, and facial pains, and was diagnosed with sinusitis. In May 2002, the Veteran was characterized by the examiner as having "recurrent now resolving sinusitis," and was treated with antibiotics. The Veteran underwent a VA examination in 2006 in which she was diagnosed with allergic rhinitis. The examiner noted that the Veteran's external nose was straight in appearance, and internally, she had a straight septum. The examiner additionally stated that the Veteran had "moderate inferior turbinate hypertrophy bilaterally without any polyps or lesions." The Veteran did not complain of any nasal obstruction or hypopnea, and denied shortness of breath. The Veteran reported that she has symptoms of eye crusting, eye dryness, runny nose, congestion, and nose itching. The examiner noted that the Veteran had received medication from her private primary medical doctor for her complaints which brought her symptoms under control. A July 2007 VA treatment record notes that the Veteran was diagnosed with rhinitis and nasal congestion with white exudate. Private medical treatment records associated with the claims file show that in April 2010, the Veteran showed evidence of rhinorrhea, mild congestion, and sinus allergies resulting in ear pain, dry and crusty eyes, and headaches. In May 2010, the private physician noted that the Veteran complained of congestion, but found her nose was clear, and diagnosed the Veteran with bronchitis and sinusitis with shortness of breath. In October 2010, the physician again found the Veteran's nose to be clear upon examination, and diagnosed the Veteran with sinusitis, chest congestion, asthma, and smoker's lung. Upon a physical examination in March 2010 in connection with her VA care, the Veteran was found to have a clear nasal passage "without swelling or discharge, non tender sinuses, [and] oropharynx without redness, swelling." The Veteran underwent another VA examination in February 2012 to determine the current severity level of the Veteran's service-connected allergic rhinitis. The examiner provided a detailed description of the onset of the Veteran's rhinitis and allergic symptoms, as well as its flare ups and medical treatment. Upon physical examination, the examiner noted that the Veteran does not have a greater than 50 percent obstruction of the nasal passage on both sides, nor does he have a complete obstruction on one side, due to rhinitis. In addition, the examiner conducted a computed tomography imaging study of the Veteran's sinuses, and documenting the following findings: [n]ormal pneumatization of the paranasal sinuses except for what appears to be congenital hypoplasia of the frontal sinuses. Nasal septum is straight. Turbinates appear to be normal. Maxillary sinuses, osteomeatal units, ethmoid sinuses, frontal recesses all normal. Sphenoid sinuses normal. There are some mildly prominent lymph nodes inferior and anterior to the submandibular glands bilaterally. I think that since these are bilateral and appear to have fatty hills that they are probably just reactive nodes. Parotid glands, base of tongue, mastoid air cells normal. There is no apparent significant abnormality regarding the paranasal sinuses on this study. The examiner additionally found that the Veteran's sinus, nose, throat, larynx or pharynx condition did not impact her ability to work. Based upon the VA and private treatment records, in addition to the VA examinations, the Board finds that there is no competent evidence of record indicating that the service-connected allergic rhinitis is manifested by sufficient symptomatology to warrant a compensable disability rating. The medical evidence details various symptoms and complications, including nasal congestion, itchy eyes and nose, and shortness of breath. Despite the Veteran's complaints, however, the objective medical evidence does not reveal that she has had nasal polyps, greater than 50 percent obstruction of nasal passage on both sides, or complete obstruction on one side, at any time during the pendency of her claim, as required for a compensable rating under DC 6522. There are no other provisions upon which to assign a higher rating. The Veteran's allergic rhinitis has not been manifested by one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, as required for a compensable evaluation under DCs 6510 through 6514. 38 C.F.R. § 4.97. She does not contend that she has, nor does the objective evidence of record support a finding that there are symptoms of bacterial rhinitis (DC 6523) or granulomatous rhinitis (DC 6524). Id. III.B. Extraschedular consideration Also considered by the Board is whether referral is warranted for a rating outside of the rating schedule. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.21(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 11 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id., at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Extra schedular consideration is not warranted in this case. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes are contemplated by the criteria found at 38 C.F.R. § 4.97. Moreover, more severe manifestations are contemplated by the rating schedule - including the presence of polyps, and greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, none of which the Veteran has experienced. Those criteria allow for ratings for all of his symptoms and manifestations and for symptoms and manifestations significantly more severe. Therefore, the first prong of the Thun test is not satisfied. For sake of completeness, the evidence does not show that the Veteran has required any hospitalization or has otherwise experienced marked interference with employment when working. Indeed, the evidence of record reflects that the Veteran has been able to maintain employment and the February 2012 VA examiner specifically found that her disability does not impact her ability to work. Thus, referral for extraschedular consideration is not warranted. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an initial compensable rating for service-connected allergic rhinitis is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs