Citation Nr: 1336964 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-38 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased evaluation for allergic rhinitis, rated zero percent disabling before February 12, 2010, and 10 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from September 1998 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In his October 2009 substantive appeal, the Veteran requested a Travel Board hearing before a Veterans Law Judge. In September 2011, the Veteran was notified that his requested hearing was scheduled for November 3, 2011. In October 2011, the Veteran withdrew his hearing request. Accordingly, the Board will proceed with adjudication of this appeal. The Veteran's Virtual VA electronic folder has been reviewed and the contents therein have been considered. Of note, VA treatment reports dated in 2010 do not pertain to the issues on appeal. Thus no additional action pursuant to 38 C.F.R. §§ 19.31 and 19.37 (2013) is warranted. FINDINGS OF FACT 1. Before February 12, 2010, the Veteran's allergic rhinitis was not manifested by complete nasal passage obstruction of one side, 50 percent nasal passage obstruction on both sides, or nasal polyps. 2. Since February 12, 2010, the Veteran's allergic rhinitis has not resulted in nasal polyps. CONCLUSIONS OF LAW 1. Before February 12, 2010, the criteria for a compensable evaluation for allergic rhinitis were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Code 6522 (2013). 2. Since February 12, 2010, the criteria for a rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Code 6522 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) were fulfilled by a September 2008 notice letter, which was issued before the November 2008 rating decision. VA notified the Veteran of the information and evidence needed to substantiate and complete his increased rating claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). The letter also complied with the mandates of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), including how VA establishes an effective date and initial disability rating. VA has also fulfilled its duty to assist the Veteran. Of record are VA treatment reports and VA examination reports. The Veteran underwent VA examinations in October 2008 and February 2010. The examination reports contain the pertinent clinical findings relevant to the pertinent diagnostic codes. The VA examiners reviewed the Veteran's history and complaints and set forth pertinent, detailed examination findings. The October 2008 and February 2010 VA examination reports are sufficient and adequate for rating purposes. Moreover, the Board observes that the Veteran has not reported that allergic rhinitis has worsened since the most recent VA examination in February 2010. As such, a remand is not required solely due to the passage of time since the February 2010 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Legal Criteria, Factual Background & Analysis A May 2006 rating action granted service connection for allergic rhinitis, rated as noncompensably disabling. VA treatment reports showing complaints of seasonal allergies were received. The Veteran filed an increased rating claim for allergic rhinitis in September 2008. The claim was denied in November 2008. The Veteran appealed. A March 2010 rating action granted a 10 percent evaluation, pursuant to Diagnostic Code 6522, effective February 12, 2010. In accordance with AB v. Brown, 6 Vet. App. 35 (1993), the Veteran's claims remain on appeal. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. In an appeal of an initial rating, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). As previously noted, the service-connected allergic rhinitis is evaluated under Diagnostic Code 6522. A 10 percent rating is warranted 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. 38 C.F.R. § 4.97, Diagnostic Code 6522. A 30 percent rating is warranted when polyps are present. Id. When the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A review of the evidence establishes that before February 12, 2010 the Veteran's allergic rhinitis symptoms do not more nearly approximate the criteria for a compensable disability evaluation. At the outset, it is acknowledged that VA treatment reports dated from April 2007 to August 2008 show that the Veteran complained of seasonal allergies with headaches, itchy eyes, and intermittent nasal congestion. An April 2007 treatment report reflects that the Veteran stated that his symptoms were "bothering him real bad." He was treated with Flonase, Zyrtec and other medication. It is also acknowledged that in October 2008, the Veteran's wife stated that the Veteran had problems breathing at night while sleeping and that she stated that she had to ensure that he was highly elevated to prevent him from waking up out of breath with mucus coming out of his mouth and nose. She also noted that he had recurring headaches and an October 2008 statement from M.G. also reflects that the Veteran suffered from headaches and trouble breathing. Additionally, in June 2009, the Veteran reported nosebleeds, stuffy head, sneezing, and nasal discharge. However, the examination and treatment reports dated prior to February 12, 2010 do not show that the Veteran's allergic rhinitis was without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. VA treatment reports are negative in this regard. VA examinations in February 2006 and October 2008 also fail to show evidence of such impairment. Indeed the Veteran reported nasal congestion, purulent discharge on a daily basis, and fatigue. Yet, upon physical examination, in February 2006, physical examination revealed no nasal obstruction, deviated septum, partial loss of the nose or ala, nor any scar or disfigurement. Sinusitis was not present either. The diagnosis was allergic rhinitis, with no findings of bacteria rhinitis. The Veteran's clinical picture remained the same in 2008. No nasal polyps were present. The nasal area/nostrils were patent without discharge. There were no lesions or ulcers. There were boggy turbinates, approximately 2+ edema. The examiner stated that there was approximately 20 to 30 percent bilateral inflammation of turbinates. There was moderate adenoid hypertrophy. This was symmetrical and could account for the Veteran's complaints of intermittent ear popping or a Eustachian tube dysfunction. There was no septal deviation. There was no tissue loss, scarring or deformity of the nose. The sinuses were negative for tenderness, purulent discharge or crusting. The examiner diagnosed allergic rhinitis. As such, the clinical findings during this period establish that the Veteran did not have total obstruction of one nasal passage or greater than 50 percent obstruction in both nasal passages. The lay statements and appellate assertions are acknowledged. The Veteran, his spouse, and M.G. provided competent and credible accounts of nasal manifestations, including congestion, breathing problems, headaches, nasal discharge, stuffy head, sneezing, and fatigue. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Veteran has reported congestion and breathing problems, neither he nor the objective medical evidence demonstrates that he has total nasal obstruction on one side, greater than 50 percent obstruction on both sides, or nasal polyps. Additionally, the Board affords more probative weight to the objective examination findings which do not show total obstruction of one nasal passage, greater than 50 percent obstruction in both nasal passages, or the presence of nasal polyps. Thus, prior to February 12, 2010, the evidence weighs against a finding that the Veteran's allergic rhinitis meets the criteria for a compensable evaluation. See DC 6522. The evidence also weighs against the assignment of a rating in excess of 10 percent from February 12, 2010. The evidence of record sufficiently establishes that the allergic rhinitis has not manifested in polyps. VA examination in February 2010 shows that the Veteran reported constant bilateral nasal congestion with interference with breathing through the nose. He stated that he had intermittent clear nasal discharge and drainage. He reported some right maxillary sinus pain and frequent headaches. He stated that the headaches were sometimes related to his sinus issues. He denied purulent discharge, crusting, incapacitating episodes, and prolonged treatment with any antibiotics. He denied post nasal drip. He reported frequent sneezing, and denied nasal bleeding. He stated that headaches were debilitating and interrupted his ability to focus and concentrate. He reported that his ability to rest was compromised due to his symptoms of nasal congestion, which caused increased irritability at work during the day. Upon physical examination, there was some clear post nasal drip noted of the oropharyngeal wall. There was no sinus tenderness noted of maxillary and frontal sinuses with palpation. There was erythematous and edematous nasal mucosa bilaterally. There were no polyps, lesions or any purulence noted. There was some whitish-colored mucous noted stranding from the inferior turbinate to the septum and on the floor of the nose, as well as in the middle meatus. There was some mild bleeding on the septum of the left nasal cavity anteriorly. There was bilateral inferior turbinate hypertrophy with a roughly 60 percent obstruction bilaterally. The examiner diagnosed allergic rhinitis. Again, the evidence of record establishes that the allergic rhinitis has not manifested in polyps. As previously noted, the Veteran is competent to report his nasal manifestations, including congestion, sneezing, nasal discharge, sinus pain, and headaches. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the objective, persuasive evidence confirms that no polyps are present. The Veteran has not stated nor testified that he has nasal polyps. Accordingly, the objective evidence is of more probative value that the Veteran's appellate assertions. The Veteran's allergic rhinitis symptoms fail to support the assignment of a disability evaluation in excess of 10 percent. See DC 6522. At this time, the Board also acknowledges the Veteran's complaints of headaches and that at times he attributes his headaches to his allergic rhinitis. However, the Board points out that service connection for residuals of a traumatic brain injury (previously post-concussive headaches with "blackouts") rated as 70 percent disabling is in effect. Thus, the Veteran's headaches have been attributed to another service-connected disability and rated under that applicable provision. 38 C.F.R. § 4.14 (2013). Extraschedular and other considerations The Board has considered whether the Veteran's allergic rhinitis disability claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 (2013). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria 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. The Board finds that the rating criteria and presently assigned disability evaluations accurately contemplate the nature, extent and severity of the Veteran's allergic rhinitis manifestation, including congestion and pain. There is evidence that allergic rhinitis may also manifest in functional and occupational impairment; however, the Board finds that based on the evidence of record, medical and lay, the symptomatology associated with the Veteran's disability is contemplated by the disability ratings presently assigned and the relevant rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. Additionally, the evidence of record does not suggest at any time during the period under review that the Veteran's allergic rhinitis has rendered him unemployable. In 2006, the examiner stated that the Veteran's disability did not affect employment, and there is no other evidence of record to suggest otherwise. Also, in a March 2011 rating decision, the RO denied the Veteran's TDIU claim as he did not respond to pertinent requests for information. As such, consideration of the assignment of a total disability evaluation, based on individual unemployability is not warranted at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An increased evaluation for allergic rhinitis, rated zero percent disabling before February 12, 2010, is denied. An increased evaluation for allergic rhinitis, rated 10 percent disabling since February 12, 2010, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs