Citation Nr: 1338979 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 07-29 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for allergic rhinitis with deviated septum prior to May 27, 2011. 2. Entitlement to a rating in excess of 10 percent for allergic rhinitis with deviated septum since May 27, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to April 2003. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, continued a noncompensable rating for service-connected allergic rhinitis and denied entitlement to service connection for a right knee disability. In November 2010, the Veteran testified at a hearing before the undersigned; a transcript of the hearing is of record. In February 2011, the Board remanded the claims for additional development. The case has since been returned to the Board for appellate review. Prior to returning the case to the Board, in an April 2012 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim of entitlement to service connection for a right knee disability. The Veteran did not subsequently file a second notice of disagreement (NOD) disagreeing with either the schedular disability rating or effective date assigned by the AOJ. Thus, that issue is not presently before the Board, and will not be further addressed. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2013); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim of service connection is granted during the pendency of an appeal, a second NOD must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability). Also in the April 2012 rating decision, the AOJ granted a higher rating for allergic rhinitis effective May 27, 2011. As this award does not represent a total grant of the benefits sought on appeal, the increased rating claim remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's paper claims file and electronic folder have been reviewed in conjunction with the disposition of the issues on appeal. FINDING OF FACT Throughout the appeal period, the Veteran's allergic rhinitis has been manifested by 50-percent or greater obstruction of the nasal passages on both sides or complete obstruction on one side, but without the presence of polyps. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for allergic rhinitis with deviated septum have been met throughout the appeal period and prior to May 27, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.97, Diagnostic Code 6522 (2013). 2. The criteria for a rating in excess of 10 percent for allergic rhinitis have not been met throughout the appeal period and since May 27, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.97, Diagnostic Code 6522 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Duties to Notify and Assist 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, and 5126 redefined VA's duty to assist a claimant 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, and 3.326(a). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence the claimant is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO); Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, the RO did not provide a VCAA notice letter that specifically addressed the Veteran's claim for an increased rating for allergic rhinitis. The Veteran filed the present claim in April 2005. In a June 2005 letter, the RO addressed the Veteran's claims for service connection and explained the type of information and evidence that must be submitted by the Veteran and the type of information and evidence that would be obtained by VA. In an October 2007 letter, the RO provided general notice regarding what information and evidence is needed to substantiate a claim for a higher rating, but indicated that the claim for an increased rating for allergic rhinitis would not be addressed because it was on appeal. In April 2006 and October 2007 letters, the RO advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In a May 2008 letter, the RO notified the Veteran of the rating criteria used to evaluate his allergic rhinitis and the types of information and evidence considered in making that determination. The claim was last readjudicated in April 2012. In this case, the Veteran and his representative have demonstrated actual knowledge of the evidence needed to substantiate the claim. Indeed, their filings have specifically referred to the pertinent evidence of record, and the applicable laws and regulations, in arguing that the Veteran has met the criteria for higher disability ratings. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Consequently, any error in regard to the notice was cured by actual knowledge on the part of the claimant, and was thus not prejudicial. Id. Regarding the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claim for a higher rating in March 2006, August 2009, and May 2011. As a whole, the examiners reviewed the Veteran's claims file, considered his complaints, conducted appropriate physical examinations, and provided complete rationales for all opinions expressed. The examination reports have been reviewed and found to be collectively adequate, as together they address the Veteran's symptoms in relation to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the Board is satisfied that there was substantial compliance with its prior remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ obtained outstanding VA treatment records; no other treatment records were identified by the Veteran. A VA examination was also conducted in May 2011. As noted above, the Board finds the examinations are adequate to make a determination in the case. The Veteran was also provided an opportunity to set forth his contentions at a Board hearing conducted in November 2010. The record reflects that at the hearing the undersigned set forth the issues to be discussed, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In all, the duty to assist has also been fulfilled. As such, there is no prejudice to the Veteran in proceeding with a decision on the merits of his claim. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 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. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Veteran's allergic rhinitis has been evaluated under Diagnostic Code 6522, which addresses both allergic and vasomotor rhinitis. 38 C.F.R. § 4.97. Under Diagnostic Code 6522, a 10 percent evaluation is assigned when there are no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent evaluation is assigned when there are polyps as well. Id. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). After a review of all the evidence, lay and medical, the Board finds that the Veteran's allergic rhinitis has been manifested by symptomatology more nearly approximating a 10 percent rating throughout the appeal period. At no time during the appeal, however, did his symptomatology more nearly approximate the criteria for a 30 percent rating. The Veteran's allergic rhinitis is manifested primarily by nasal congestion, difficulty breathing, and nasal drainage. During the November 2010 hearing, he testified that his symptoms were worse at night and that he had a lot of blockage that made it difficult to sleep and use his CPAP machine for his service-connected sleep apnea. Hearing Transcript (Tr.) at 4-5. He said that he felt that one side of his nose was completely blocked. Hearing Tr. at 6. He also testified that he was constantly congested and that his symptoms were worse in the fall and spring. Hearing Tr. at 10. In various written statements, the Veteran reported that he was treated for sinus problems and allergic rhinitis throughout his military career and that he has continued to have chronic problems since he retired in April 2003. See statements received in April and July 2005. The Board acknowledges that medical evidence prior to May 27, 2011 does not objectively show nasal obstruction to a compensable degree (i.e., 50-percent obstruction on both sides or 100-percent obstruction on one side). See March 2006 and August 2009 VA examinations, VA treatment records dated in March 2006, October 2008, June 2009, March 2010, and September 2010. However, some blockage was noted in February 2009 (i.e., enlarged turbinates) and August 2009 (i.e., 10-percent obstruction on the left and 20-percent obstruction on the right). Additionally, on examination in May 2011, the Veteran had near complete blockage of the right nasal passage with hypertrophied turbinates, and hypertrophied turbinates in the left nasal passage, but without blockage. In an addendum to the May 2011 report of examination, the examiner commented that although the Veteran had been observed on several occasions to have no nasal blockage, that was because at those times the Veteran had minimal to no symptoms because it was not a time of the year that his allergies were flaring up. Intermittent blockage, as described by the Veteran, was consistent with the nature of allergic rhinitis. The Veteran also provided competent and credible testimony that his symptoms are worse at night and that he had total blockage on one side. Under these circumstances, the Board finds that reasonable doubt should be resolved in the Veteran's favor and a 10 percent rating awarded throughout the appeal period. The Board, however, does not find that a 30 percent rating for allergic rhinitis is warranted at any time during the appeal period. In this regard, the record consistently indicates that the Veteran has not had polyps. See May 2011 and August 2009 VA examinations, and VA treatment records dated in October 2008, June 2009, March 2010, and May 2011. As the presence of nasal polyps is required for a rating in excess of 10 percent, the criteria for a 30 percent rating under Diagnostic Code 6522 are not met. The Board has also considered whether other diagnostic codes are applicable to the Veteran's allergic rhinitis with deviated septum during the appeal period. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). Diagnostic Code 6502 provides for a 10 percent rating for a deviated septum with 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. See 38 C.F.R. § 4.97. These criteria do not provide for ratings higher than 10 percent. Moreover, as the criteria are exactly the same as the criteria for a 10 percent rating under Diagnostic Code 6522, the Board finds that it would be pyramiding to assign separate ratings under these two diagnostic codes. See 38 C.F.R. § 4.14 (The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited). The United States Court of Appeals for Veterans Claims (Court) has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). The Board notes that the Veteran is evaluated separately for his service-connected sinusitis and sleep apnea, which are secondary to his allergic rhinitis. Under these circumstances, based on the Veteran's symptomatology, the Board finds that the Veteran's allergic rhinitis is appropriately evaluated under Diagnostic Code 6522. The Board has also considered the application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. 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. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). In this case, the rating criteria reasonably describe the symptomatology related to the Veteran's allergic rhinitis with deviated septum. He has described symptomatology involving congestion, difficulty breathing, and nasal draining. Diagnostic Code 6522 specifically contemplates nasal obstruction, which is associated with congestion and nasal draining and causes difficulty breathing. Furthermore, as discussed above, the Veteran receives separate evaluations for associated symptomatology involving sinusitis and sleep apnea. For these reasons, the Board finds that the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Finally, the Board has considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the Court held that a claim for total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Here, however, the Veteran has not claimed nor does the evidence indicate that he is unemployable due to his service-connected allergic rhinitis. Accordingly, a claim of entitlement to a TDIU is not deemed to be a component of the current appeal. In sum, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's allergic rhinitis with deviated septum throughout the appeal period. In reaching this decision, the Board has favorably applied the benefit-of-the-doubt doctrine; however, the Board finds that the preponderance is against assignment of any higher ratings. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A 10 percent rating, but no higher, for allergic rhinitis with deviated septum is granted throughout the appeal period and prior to May 27, 2011, subject to the controlling regulations applicable to the payment of monetary benefits. A rating in excess of 10 percent for allergic rhinitis is denied throughout the appeal period and since May 27, 2011. ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs