Citation Nr: 1336146 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-33 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial increased rating for allergic rhinitis, evaluated as noncompensably disabling prior to July 26, 2006, as 10 percent disabling from July 26, 2008 to January 27, 2008, and as noncompensably disabling from January 28, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran had active naval service from February 1989 to February 1992 and from November 2001 to October 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision and an August 2007 Decision Review Officer (DRO) decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was scheduled for a Video Conference hearing in November 2012. He failed to report for the scheduled hearing without explanation. He has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is deemed to be withdrawn. 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 issues on appeal. In January 2013, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. For the period prior to July 26, 2006, the Veteran's rhinitis and sinusitis was manifested by greater than 50 percent nasal obstruction on only one side, without polyps, or objective evidence of incapacitating episodes of sinusitis. 2. For the period beginning July 26, 2006 and ending January 28, 2008, the Veteran's rhinitis and sinusitis was manifested by greater than 50 percent nasal obstruction on both sides, without polyps, or objective evidence of incapacitating episodes of sinusitis. 3. For the period beginning January 28, 2008, the Veteran's rhinitis and sinusitis involves year-round symptoms of nasal congestion, epistaxis, yellowish nasal drainage, rhinorrhea, sneezing, coughing, sore throat, and nasal obstruction no greater than 50 percent on each side, without polyps, or objective evidence of incapacitating episodes of sinusitis. CONCLUSIONS OF LAW 1. For the period prior to July 26, 2006, the criteria for a compensable disability rating for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Codes 6510-6514, 6522 (2013). 2. For the period beginning July 26, 2006 and ending January 28, 2008, the criteria for a disability rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Codes 6510-6514, 6522 (2013). 3. For the period beginning January 28, 2008, the criteria for a compensable disability rating for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Codes 6510-6514, 6522 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation or evidence of prejudice. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA also provides 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. VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records. The Board remanded the claim in January 2013 to obtain outstanding VA treatment records, and to afford the Veteran a VA examination to evaluate the current severity of his service-connected allergic rhinitis. In a January 2013 letter, the RO notified the Veteran that they had requested and obtained his treatment records from the VA Medical Center in Atlanta from June 1992 to August 2004. A search of the Virtual VA electronic claims file shows that VA treatment records from the VA Medical Center in Atlanta dated from June 1992 to August 2004 are available. The RO requested that the Veteran notify them if he had received any treatment after his last visit in August 2004. The Veteran has not responded to the RO's letter. As such, the Board assumes that he has not received any VA treatment for his allergic rhinitis since August 2004. The Veteran was afforded a VA examination in February 2013 for his service-connected allergic rhinitis. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the February 2013 VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. Accordingly, the Board finds that the remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). Allergic or vasomotor rhinitis is rated under Diagnostic Code 6522. 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. Diagnostic Codes 6510 through 6514 pertain to various types of sinusitis, each of which is rated based on the criteria in a General Rating Formula for Sinusitis (General Formula). Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6511 pertains to chronic ethmoid sinusitis, 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. Under the General Formula, 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. 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. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran was afforded a VA general medical examination in August 2004. He complained of nasal congestion only. He denied shortness of breath, purulent discharge or speech impairment. He reported using Flonase nasal spray and over-the-counter medications, such as NyQuil and Sudafed. On physical examination, there was left maxillary tenderness in the sinus area. The nose external nares were patent, and the right nasal passage showed obstruction greater than 50 percent, but the left nasal passage was unobstructed. There was erethyma present in the passages. There were no polyps and no purulent discharge. He was diagnosed with allergic rhinitis, with greater than 50 percent obstruction on the right nasal passage, no polyps or purulent crusting. In an August 2007 rating decision, the RO granted service connection for allergic rhinitis, claimed as a sinus condition. A noncompensable evaluation was assigned, effective October 12, 2003. The Veteran was afforded another VA examination for his allergic rhinitis in November 2007. The Veteran complained of constant sinus problems, with associated headaches, which he reported resulted in at least 4 episodes of incapacitation per year, which lasted for 2 weeks at a time. The Veteran also reported that antibiotic treatment lasting 4-6 weeks was required for his sinusitis. He also complained of interference with breathing through the nose, purulent discharge from the nose, hoarseness of the voice, pain, and crusting. He reported current treatment at that time with nasal spray for 4 years, with good a response and no side effects. Physical examination of the nose revealed no nasal obstruction, no deviated septum, no partial loss of the nose, no partial loss of the ala, no nasal polyps, no scar, and no disfigurement. Rhinitis was present, and the examiner noted that it was believed to be allergic in origin because the inferior nasal turbinates were swollen and covered with clear discharge. Examination showed sinusitis present at the frontal and maxillary sinuses, with tenderness. There was no purulent discharge from the nose noted. The examiner changed the Veteran's diagnosis to allergic rhino-sinusitis, based on the Veteran's subjective reports of sinus and nasal congestion, and objective evidence of nasal turbinate swelling and sinus tenderness. There was no finding of bacterial rhinitis. Following the November 2007 VA examination, the Veteran submitted private treatment records in support of his claim for an increased rating. Treatment records from Kaiser Permanent show that in May 2006, the Veteran was treated for allergic rhinitis and sinusitis, with objective evidence of mucosal congestion, mucosal pallor, clear rhinorrhea, and sinus tenderness at the frontal and maxillary. Treatment records from the Atlanta Allergy and Asthma Clinic show that in July 2006, the Veteran was found to have markedly edematous, pale nasal turbinates, essentially swollen shut on the left side, and almost on the right, moderate; clear nasal secretions; and marked clear postnasal drainage. He had huge reactions to every aero-allergen tested, both perennial and seasonal, and was started on allergy injections. Treatment records from Kaiser Permanent show that in April 2007, the Veteran was treated for sinusitis and allergic rhinitis, pollen, with objective evidence of frontal and maxillary sinus tenderness and pale and congested nasal mucosa. In October 2007, he was found to have septal deviation with turbinate hypertrophy and clear discharge that was diagnosed as allergic rhinitis and nasal airway obstruction. In November 2007, he was found to have boggy nasal mucosa, tortuous left septum deviation, and hypertrophic and edematous bilateral inferior turbinates, and was diagnosed with allergic rhinitis, septal deviation, and hypertrophic turbinates. A septoplasty and inferior turbinate reduction were recommended. Treatment records from the Atlanta Outpatient Peachtree Dunwoody Surgery Center show that in December 2007, the Veteran underwent a septoplasty and bilateral inferior turbinate reduction, due to nasal airway obstruction, septal deviation, and turbinate hypertrophy. Treatment records from Kaiser Permanente show that in January 2008, the Veteran was treated for allergic rhinitis, status post septoplasty and bilateral inferior turbinate reduction, with objective findings on visual examination of edematous right turbinate with clear mucous, and patent (unobstructed) left nasal cavity with well lateralized turbinate and straight septum, and objective findings on fibroscopic nasal endoscopy of boggy head of the right turbinate with the remainder of the turbinate being well lateralized, well lateralized left turbinate, and the left mid septum having prominent vessels, with all the mucosa being well healed. In a June 2009 rating decision, the RO granted an increased rating of 10 percent for the service-connected allergic rhinitis, effective July 26, 2006, based on the evidence noted above in July 2006, of markedly edematous, pale nasal turbinates, essentially swollen shut on the left side, and almost on the right. A noncompensable evaluation was continued from January 28, 2008, as the evidence of record no longer showed greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. In response to the Board's January 2013 remand, the Veteran was afforded his most recent VA examination in February 2013. He was diagnosed at that time with allergic rhinitis and sinusitis. He complained of year-round symptoms of nasal congestion, epistaxis, yellowish nasal drainage, rhinorrhea, sneezing, coughing, and sore throat. He reported treatment with Fluticasone nasal spray daily and Azelastine daily. On physical examination, there was no evidence of greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side due to rhinitis or traumatic septal deviation. There was no evidence of permanent hypertrophy of the nasal turbinates, no nasal polyps, and no granulomatous conditions. For the nose, external nares were patent; nasal mucosa was moist; and there was no erythema, edema or exudates. The left nasal passage was patent, and the right nostril appeared narrow with less than 50 percent obstruction. There was no erythema or exudates of the oral cavity or pharynx. The voice was normal and the neck was supple. Period prior to July 26, 2006 In order for the Veteran to receive a compensable rating under Diagnostic Code 6522, there must be evidence of greater than 50 percent obstruction of nasal passage on both sides or complete obstruction one side, or polyps. The only medical evidence available for this period is the report of the August 2004 VA examination noted above. As noted, on physical examination at that time the right nasal passage showed obstruction greater than 50 percent, but the left nasal passage was unobstructed, and there were no polyps. Accordingly, the Board finds that a compensable rating is not warranted under Diagnostic Code 6522, for the period prior to July 26, 2006. The Board also finds that as the Veteran does not allege, and the evidence does not show, that he experienced any incapacitating episodes of sinusitis during this time period, a compensable rating under Diagnostic Codes 6510-6514 is also not warranted for the period prior to July 26, 2006. Period beginning July 26, 2006 and ending January 28, 2008 In order for the Veteran to receive a rating in excess of 10 percent under Diagnostic Code 6522, there must be evidence of polyps. None of the medical evidence for this period, VA or private, shows that there were ever any findings of polyps. Accordingly, a rating in excess of 10 percent is not warranted for the period beginning July 26, 2006 and ending January 28, 2008. The Board acknowledges the Veteran's reports during his November 2007 VA examination of constant sinus problems, with associated headaches, which according to him, resulted in at least 4 episodes of incapacitation per year, which lasted for 2 weeks at a time, and antibiotic treatment lasting 4-6 weeks for his sinusitis. However, the Board finds that besides the Veteran's subjective reports, there is no evidence of record of any incapacitating episodes or physician-prescribed bedrest due to the Veteran's sinusitis during this time period. Accordingly, a rating in excess of 10 percent under Diagnostic Codes 6510-6514 is also not warranted. Period beginning January 28, 2008 As noted above, January 2008 treatment records from Kaiser Permanente showed evidence of a patent (unobstructed) left nasal cavity. Therefore, there was no longer evidence of 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, to warrant a 10 percent evaluation. There was also still no evidence of polyps, to warrant a 30 percent evaluation. Furthermore, on physical examination in February 2013, there was no evidence of greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, and no evidence of polyps. Accordingly, the Board finds that a compensable rating is not warranted for the period beginning January 28, 2008. Finally, the Board finds that as the Veteran has not reported, and the evidence does not show, that he experienced any incapacitating episodes of sinusitis during this time period, a compensable rating under Diagnostic Codes 6510-6514 is also not warranted for the period beginning January 28, 2008. The Board has found no other section that provides a basis upon which to assign a higher disability evaluation for the Veteran's rhinitis or sinusitis during any period on appeal. The Veteran is competent to report the symptoms of his disability. His complaints are credible. The Veteran's complaints have been considered in the above noted evidence; however, evaluations for VA purposes have not shown the severity required for a higher schedular rating, as discussed above. To the extent that the Veteran argues or suggests that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. at 494. VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. See Massey v. Brown, 7 Vet. App. at 208. Extra-Schedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2013). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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 disability with the established criteria found in the rating schedule for that disability. 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"). The Veteran's disability, as discussed above, is manifested by symptomatology contemplated by the rating criteria. The Veteran reported in his May 2005 notice of disagreement that he had missed days from work due to pain, congestion and drainage from his head and mouth. However, the rating schedule contemplates the effects of the disability on the Veteran's ability to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2013). The rating schedule is meant to compensate for considerable time lost from work. 38 C.F.R. § 4.1 (2013). Referral for extraschedular consideration would not be warranted unless the rating criteria did not contemplate his symptoms. A review of the rating criteria for the appropriate diagnostic codes reflects that they consider and include the Veteran's complaints and pertinent symptoms. Higher evaluations are provided for greater symptomatology, which the Veteran does not demonstrate. The Board does not find that there is an exceptional disability picture. Therefore, referral of this case for extra-schedular consideration is not in order. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2013) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case there is no evidence that the Veteran's service-connected disability has caused unemployability. As noted above, the Veteran has reported that symptoms of his disability had caused him to miss days from work, but he has not alleged, and there is no evidence showing, that he has had to resign his employment, or that he was ever fired or denied employment due to a service-connected disability, including his rhinitis or sinusitis. In fact, the evidence shows that he was employed at the time of his VA examination in 2007 and most recently, in 2013, and he reported in 2013 that his disability did not have an effect on his employment. As there is no evidence of unemployability attributable to a service-connected disability, the Board finds that further consideration of entitlement to TDIU is not required. ORDER An increased rating for allergic rhinitis is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs