Citation Nr: 1540763 Decision Date: 09/22/15 Archive Date: 10/02/15 DOCKET NO. 12-25 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased rating for allergic rhinitis, evaluated as 30 percent disabling from December 24, 2008, to December 17, 2010, and as noncompensably disabling from December 18, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas O'Shay, Senior Counsel INTRODUCTION The Veteran had active service from March 1969 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran and his representative have characterized the issue on appeal as involving the restoration of a 40 percent rating. In actuality, the 40 percent rating to which they refer is the combined disability rating for all of the Veteran's service-connected disorders. The assignment in this case of a 40 percent combined rating for a certain period, followed by assignment of a combined 20 percent rating occurred solely as a result of the RO's action in assigning an increased rating of 30 percent for service-connected allergic rhinitis, followed by the assignment of a 0 percent evaluation for that disorder. Notably, the Veteran and his representative do not contend that VA calculated the combined rating incorrectly. Given the above, the Board has recharacterized the issue to reflect the actual legal question before the Board. In several statements, most recently in September 2012, the Veteran has expressed the belief that clear and unmistakable error (CUE) exists in some VA decision; he appears to allege that resolution of the error would result in the assignment of an effective date of 1972 for some benefit. He has not identified the VA decision he believes contains CUE, or articulated a basis for his belief that there is CUE in the decision. At this point, given the vagueness surrounding the Veteran's reference to CUE, VA is unable to take any action in response. If the Veteran wishes to allege CUE in a VA decision, he should identify the VA decision he intends to challenge, and articulate the reasons he believes the decision contains CUE. The issues of entitlement to an increased rating for chronic sinusitis and for service connection on a secondary basis for loss of sense of smell and taste have been raised by the record in a September 2012 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDING OF FACT For the period since December 24, 2008, the Veteran's allergic rhinitis has been manifested by several mucous retention cysts. CONCLUSION OF LAW For the period since December 24, 2008, the criteria for a 30 percent, but not higher, evaluation for allergic rhinitis have been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2014); 38 C.F.R. §§ 3.102 , 4.3, 4.7, 4.97, Diagnostic Code 6522 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Prior to considering the merits of the claim, the Board notes that VA has certain notice and assistance obligations toward the Veteran. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R § 3.159 (2014). Proper notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In a claim for increase, VA must issue a generic notice that informs the Veteran of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The record shows that the Veteran was provided with 38 U.S.C.A. § 5103(a)-compliant notice in November 2010. The record also shows that the Veteran has received the notice to which he is entitled under 38 U.S.C.A. §§ 5103A and 7104 (West 2014). VA's notification duties have been met in this case. Relevant to the duty to assist, all relevant records identified by the Veteran have been obtained or received from the Veteran himself. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record also shows that the Veteran was afforded examinations in connection with his appeal in December 2010 and June 2012. His representative alleges that both examination reports are inadequate solely because the examiners determined that the Veteran did not have nasal polyps. The representative believes that a December 2008 diagnostic study established the presence of nasal polyps, and contends that the VA examiners consequently were required to explain how the Veteran's nasal polyps could have disappeared without surgical intervention. As will be explained in further detail below, the representative has misread the December 2008 diagnostic findings. That report did not establish that the Veteran had nasal polyps, but rather established that either nasal polyps or mucous retention cysts were present in the nose. The evidence as a whole shows that the abnormalities in the Veteran's sinus cavities are mucous retention cysts. Given that the representative's challenge to the examination reports is based on an inaccurate understanding of the evidence, the Board finds his arguments to lack merit. The Board has reviewed the examination reports, and finds that they are adequate. In sum, the Board finds that VA's notice and assistance duties have been met. Law and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation 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 be expected in all instances. 38 C.F.R. § 4.21 (2014). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2014). In a claim for an increased initial rating, such as the claim at issue, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (2001). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court extended Fenderson to increased rating claims. Factual Background Service connection for allergic rhinitis was granted in a June 2003 rating decision, with an assigned noncompensable evaluation. Service connection for sinusitis was also granted, but the evaluation for that disorder is not a matter currently before the Board. In June 2011, the evaluation assigned the allergic rhinitis was simultaneously increased to 30 percent for the period from December 24, 2008 (the date of claim) to December 17, 2010, and decreased back to noncompensable effective December 18, 2010. VA treatment records for 2008 through 2015 document that in December 2008, diagnostic studies of the paranasal sinuses showed findings indicating the presence of either polyps or mucous cysts of both maxillary antrum. The associated consult report noted complaints including sore throat, nasal congestion and postnasal drip. Physical examination showed crusting in the anterior nares with no discharge or erythema. The clinician noted the absence of polyps or exudate to examination. Subsequent entries note continued sinus problems. The Veteran attended a VA examination in December 2010. He reported experiencing constant sinus problems that usually incapacitated him for the entire month. He reported experiencing problems with breathing through his nose, purulent discharge, crusting, pain and hoarseness. He indicated that his interactions with people had been hampered. Physical examination disclosed the absence of polyps or nasal obstruction. There was evident rhinitis, with no purulent discharge. X-ray studies of the sinuses were negative for pertinent abnormalities, other than sinusitis in the maxillary area. The examiner noted that the combined impact of the Veteran's disabilities included shortness of breath, an altered voice and purulent discharge. In a February 2011 affidavit, the Veteran's spouse noted that he experienced breathing problems. The Veteran attended a VA fee basis examination in June 2012. The examiner noted that the Veteran's nostrils were not obstructed to any significant extent, that there was no permanent hypertrophy of the nasal turbinates, and that there were no nasal polyps to examination. The examiner also noted that the Veteran did not have chronic laryngitis or a pharyngeal condition. X-ray studies disclosed the presence of mucous retention cysts in each maxillary sinus. The examiner concluded that the Veteran's disability did not impact his ability to work. In statements on file, the Veteran contends that the December 2008 diagnostic studies establish that he does have nasal polyps, which must still be present as he has not had them removed. He indicates that his treating physician informed him that polyps cannot be detected on X-ray studies. In support of his claim, he submitted an article from the University of Saskatchewan indicating that a decreased sense of smell is the cardinal symptom of nasal polyps, that physical examination for polyps involves the use of a speculum and a light source, and that X-ray studies of the sinuses are used in identifying polyps. Analysis Initially, the Board points out that, the understanding of the Veteran and his representative to the contrary notwithstanding, the issue before the Board does not involve a reduction in rating subject to the provisions of 38 C.F.R. §§ 3.105 or 3.344. The rating action from which this appeal originates assigned an increased evaluation of 30 percent for allergic rhinitis, followed by the assignment of a noncompensable rating, and those assigned ratings were accomplished in a single rating action. Moreover, prior to that decision, the Veteran's allergic rhinitis was rated as noncompensable. In O'Connell v. Nicholson, 21 Vet. App. 89, 93(2007), the U.S. Court of Appeals for Veterans Claims (Court) held that where the Board, in one decision, assigns a higher rating for a period of time, and assigns a lower rating for a later period of time, the provisions of 38 C.F.R. § 3.105 are not applicable. In Singleton v. Shinseki, 23 Vet. App. 376 (2010), the Court extended this reasoning to 38 C.F.R. § 3.344. It makes no difference if the action at issue is a Board decision or a rating decision. In this case, the RO's action in assigning two ratings was nothing more than the assignment of "staged" ratings. The RO evaluated the Veteran's allergic rhinitis as 30 percent disabling from December 24, 2008, to December 17, 2010, and as noncompensably disabling from December 18, 2010. The allergic rhinitis is rated under Diagnostic Code 6522. Under that code, allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. Allergic rhinitis with polyps warrants a 30 percent evaluation. 38 C.F.R. § 4.97, Diagnostic Code 6522. The Board first notes that the RO increased the evaluation assigned the allergic rhinitis to 30 percent on the basis of the December 2008 diagnostic study, and assigned a noncompensable evaluation on the basis of the December 2010 examination documenting the absence of polyps. The Veteran and his representative contend that the December 2008 study established the presence of polyps, and that absent surgical intervention, the polyps must perforce still be present. The Board points out, however, that the December 2008 study did not establish the presence of polyps. Rather, the radiologist interpreting the report specifically indicated that the study showed either polyps or mucous cysts. The Veteran underwent two examinations in connection with this appeal, both of which included physical observation to determine the presence of nasal polyps, and the June 2012 one which also included X-ray studies. Both examiners determined that the Veteran did not have nasal polyps. Although the Veteran now contends that his treating physician told him that nasal polyps are not revealed by X-ray studies, the Board finds his account of what his physician purportedly said to lack credibility, given that the article the Veteran submitted to VA by the University of Saskatchewan specifically notes that X-ray studies are considered diagnostic in searching for polyps. The article also notes that observation by the physician is also diagnostic. Given that the December 2008 radiologist indicated that the abnormalities on the study could be either nasal polyps or mucous cysts, as two separate examiners both noted the absence of nasal polyps by examination, and as X-ray studies have confirmed the presence of mucous retention cysts with no indication of nasal polyps, the Board finds that the evidence establishes the Veteran never had nasal polyps, but rather has mucous retention cysts. The Board nevertheless has considered whether the several mucous retention cysts present are analogous to polyps for the purposes of Diagnostic Code 6522. Given that both are growths located in the same area, and that mucous retention cysts can, in some cases, cause some of the same effects as nasal polyps, the Board finds that the Veteran's mucous retention cysts are functionally equivalent to nasal polyps, and that the Veteran is entitled to a 30 percent evaluation for allergic rhinitis. Given that the December 2010 examination studies were unclear as to the presence of mucous retention cysts, the Board finds that the 30 percent rating is effective December 24, 2008, and that the Veteran consequently is entitled to a rating of 30 percent for the entire period involved in this appeal. With respect to whether the Veteran is entitled to a rating in excess of 30 percent, the Board points out that 30 percent is the maximum rating available under Diagnostic Code 6522. With respect to alternative diagnostic codes, the Veteran is already separately evaluated for sinusitis and the associated symptoms of headaches, purulent discharge, crusting and incapacitating episodes. Consequently, the provisions of Diagnostic Codes 6510 through 6514 are not applicable. In addition, although the Veteran reports hoarseness, examination has disclosed the absence of laryngitis. In any event, 30 percent is the maximum evaluation available for chronic laryngitis under Diagnostic Code 6516. A 50 percent rating is warranted for bacterial rhinitis where there is rhinoscleroma under Diagnostic Code 6523. Notably, however, the Veteran has not at any point demonstrated rhinoscleroma. A 100 percent evaluation is warranted for Wegener's granulomatosis with lethal midline granuloma. None of the evidence suggests the presence of such disease. The June 2012 examiner specifically noted the absence of the above two conditions. Higher evaluations under 38 C.F.R. § 4.97, Diagnostic Codes 6523 or 6524 (2014) are not warranted. In short, there is no alternative diagnostic code under which the Veteran could receive a rating higher than 30 percent for allergic rhinitis. In sum, the Veteran is entitled to a 30 percent evaluation, but not higher, for allergic rhinitis for the period from December 24, 2008. The Board has reviewed the evidence to determine if there was any discrete period involved in this case during which a higher rating was warranted, but finds that the symptoms and impairment associated with the allergic rhinitis have remained no more than 30 percent disabling during the pertinent period. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either 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 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. 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 Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms and disability level described by the Veteran and examiners are adequately contemplated by the schedular criteria. The schedular criteria are based on factors such as breathing obstruction and polyps. As discussed previously, the Board finds that the mucous retention cysts in the Veteran's nasal cavities are functionally equivalent to nasal polyps, and support assignment of a 30 percent rating under the schedular criteria. The Veteran has also mentioned symptoms such as shortness of breath, which is contemplated by the criteria pertaining to nasal obstruction. The Veteran has another sinus disorder with rating criteria encompassing the Veteran's other reported symptoms, such as headaches. With respect to hoarseness, this was not evident to the examiners, and has not been established by the record. Ultimately, the Veteran does not describe any effects of his allergic rhinitis which take the disability outside of the symptoms contemplated in the rating criteria. Consequently, referral for extraschedular consideration is not warranted. The Board has considered whether the matter of a total disability rating based on individual unemployability (TDIU) has been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The record is unclear as to the Veteran's employment status. What is clear is that the Veteran has not alleged at any point that he is unable to obtain or maintain substantially gainful employment, or that his allergic rhinitis has interfered with his ability to obtain or maintain such employment. Nor does the record otherwise suggest such interference by the allergic rhinitis. Given this, the Board finds that the matter of entitlement to a TDIU has not been raised in connection with the current appeal. ORDER Entitlement to a rating of 30 percent, but no higher, for allergic rhinitis for the period since December 24, 2008 is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs