Citation Nr: 1603122 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 08-13 038A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1993 to April 1996, and from March 1997 to September 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in October 2012. A transcript of the hearing is of record. When this claim was most recently before the Board in April 2014, it was remanded for additional development and adjudicative action. The case has since been returned to the Board for further appellate action. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System FINDING OF FACT The Veteran's allergic rhinitis has not been manifested by greater than 50 percent obstruction of nasal passages on both sides, complete obstruction on one side, or polyps at any time during the period of the claim. CONCLUSION OF LAW The criteria for a compensable evaluation for allergic rhinitis have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R.§ 4.97, Diagnostic Code 6522 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide 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. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a September 2006 letter, prior to the initial adjudication of the claim in June 2007. As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. In this regard the Board notes that VA has obtained the Veteran's service treatment records and available post-service treatment records. Pursuant to the Board's April 2014 remand directive, the Veteran was requested in an October 2014 letter to submit any medical records in his possession related to March 2011 treatment in Stuttgart, Germany. The Veteran did not respond or provide any additional evidence. In addition, the Veteran was afforded VA examinations in August 2007 and April 2013 to determine the nature and severity of his allergic rhinitis. The report of the most recent examination performed in April 2013 provides all information required for rating purposes. The Veteran has not contended and the evidence does not otherwise show that the disability has increased in severity since the April 2013 VA examination. Further, the Board finds that there has been substantial compliance with the March 2012, January 2013, and April 2014 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any other outstanding evidence that could be obtained to substantiate his claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). The Veteran's allergic rhinitis rated under 38 C.F.R. § 4.97, Diagnostic Code 6522. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent evaluation is warranted for allergic or vasomotor rhinitis with polyps. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In the June 2007 rating decision on appeal, the Veteran was granted service connection with a noncompensable rating for allergic rhinitis, effective in July 2006. In July 2007, the Veteran disagreed with the noncompensable evaluation assigned. For the reasons explained below, the Board has determined that a compensable rating is not warranted for any portion of the period on appeal. In an August 2007 VA examination, the Veteran indicated he used Claritin, Allegra, nasal sprays, and eye drops to treat his symptoms of watery eyes, snoring, occasional nasal obstruction, rhinitis with postnasal drip and a cough, some maxillary sinus pressure, and flare-ups two to three times per month with rashes. The Veteran stated that he had not had any recent antibiotics for sinusitis, did not have pus or blood in the nose, and did not have headaches. The examiner found no external nose deformity, nasal septal deviation to the right, patent nasal airway bilaterally that was reduced on the right, with no pus, blood, polyps, or crusting in the nose. According to a January 2008 VA treatment note, the Veteran reported sinus pressure with cough and dark sputum and was diagnosed with acute sinusitis and bronchitis. An April 2012 VA treatment note reports the Veteran's nose and throat examination was within normal limits. In an October 2012 hearing, the Veteran testified that he had occasional severe flu symptoms and that his allergic rhinitis interfered with his service-connected asthma. He indicated that he treated the rhinitis with Flonase and over-the-counter medication, that he had an asthmatic attack with runny nose and watery eyes in April 2012, and that he had about 6 or more non-incapacitating episodes that included headaches, sinus pain or discharge, and crusting of his nasal passages that caused him to stay home for several days to a few weeks. He further reported that he believed he had nasal polyps and that his nasal passages were obstructed on both sides. In an April 2013 VA examination report, the examiner noted that the Veteran had no symptoms of allergic rhinitis at his last April 2012 VA treatment note, with his nose and throat within normal limits and no adenopathy. The Veteran reported symptoms of coughing, sneezing, swelling of the nose, and itchy eyes that responded to prescribed medication and he denied headaches, shortness of breath, wheezing, fever, or chills. He indicated that he last used antibiotics around 2011. The examiner found no evidence of nasal passage obstruction greater than 50 percent on both sides, complete obstruction of either side, permanent hypertrophy, polyps, or granulomatous conditions. The examiner opined that the allergic rhinitis did not impact the Veteran's ability to work. In connection with April 2013 VA treatment, the Veteran reported occasional shortness of breath that responded to prescribed medication and that his symptoms were aggravated by humid weather and exercise. After careful review of the evidence, the Board finds that the criteria for a compensable evaluation under Diagnostic Code 6522 are not met. In this regard, the Board notes that the evidence does not show that the Veteran has had greater than 50 percent obstruction of nasal passage on both sides or complete obstruction of either nasal passage. Additionally, no examination or treatment record evidences that the Veteran has had a nasal polyp. The Board acknowledges that the Veteran has stated that he has obstructed nasal passages and nasal polyps, but notes that there is no corroborating evidence of complete obstruction of either nasal passage, 50 percent obstruction of nasal passages on both sides or the presence of polyps. There is no indication that the Veteran possesses the expertise required to diagnose a nasal polyp. Moreover, his statements are self-serving. Therefore, the Board has found the Veteran's statements to be less probative than the medical evidence showing the Veteran does not have 50 percent obstruction of nasal passages on both sides, complete obstruction of either nasal passage, or polyps. The Board has considered whether there is any other schedular basis for granting a higher rating or separate compensable rating but has found none. In addition, the Board has considered granting a staged rating but for the reasons explained above has determined that a compensable rating is not warranted for any portion of the rating period. Additional Considerations The Board has considered whether this claim should be referred to the Director of the Compensation Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected disability, as discussed above, are less than those contemplated by the schedular criteria for a compensable rating. Moreover, the VA examiner in April 2013 opined that the allergic rhinitis would not impact the Veteran's ability to work. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. Finally, the Board has considered the doctrine of reasonable doubt but determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to an initial compensable evaluation for allergic rhinitis is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs