Citation Nr: 1753716 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 06-25 116A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable disability rating for allergic rhinitis with sinusitis and sinus headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from July 1972 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2005 and July 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As relevant to this appeal, the November 2005 rating decision denied service connection for type II diabetes mellitus and a kidney disorder. The July 2007 rating decision denied the Veteran's petition to reopen claims for service connection for a left knee disability and a temporomandibular disorder (TMD); denied service connection for a right knee disability and a right elbow disability; granted an initial noncompensable disability rating for allergic rhinitis with sinusitis and sinus headaches; and denied a 10 percent disability rating based on multiple noncompensable disabilities. The Veteran testified at a hearing in January 2009 before a Veterans Law Judge (VLJ) who is no longer at the Board and at a hearing in June 2012 before the undersigned. Copies of the transcripts are of record. In April 2009, November 2011, and February 2013 the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for further development. As part of the February 2013 remand, the Board reopened the Veteran's TMD claim. In a March 2016 decision, the Board reopened a claim for service connection for a left knee disability, denied service connection for TMD, granted service connection for a kidney disorder, denied service connection for a right elbow disorder, denied entitlement to a compensable disability rating for allergic rhinitis, an denied entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities. The issues of entitlement to service connection for a left knee disability, a right knee disability, and type II diabetes mellitus were remanded for further development. The Veteran appealed the March 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2017 memorandum decision, the Court vacated the portion of the March 2016 Board decision which denied entitlement to a compensable disability rating for service-connected allergic rhinitis with sinusitis and sinus headaches, and remanded that claim to the Board for further proceedings consistent with the memorandum decision. The issues of service connection for TMJ, service connection for a right elbow disability, and entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities were deemed abandoned. As the requested development concerning the issues of entitlement to service connection for a left knee disability, a right knee disability, and type II diabetes mellitus has not yet been completed, the only issue before the Board at this time is entitlement to an initial compensable disability rating for allergic rhinitis with sinusitis and sinus headaches. FINDING OF FACT The Veteran's allergic rhinitis with sinusitis and sinus headaches does not manifest as greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on both sides, does not produce incapacitating episodes, and does not produce three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. CONCLUSION OF LAW The criteria for an initial compensable disability rating for allergic rhinitis with sinusitis and sinus headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.97, Diagnostic Codes 6514, 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked evidence that is not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Prior to initial adjudication, a letter dated in July 2006 satisfied the duty to notify provisions with regard to the Veteran's claim. With regard to his increased rating claim, it arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; 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). With regard to the duty to assist, the Veteran's service treatment records (STRs), VA medical treatment records, and service personnel records have been obtained. The record indicates that attempts were made to obtain Social Security Administration (SSA) records for the Veteran, and that the SSA returned negative replies. Subsequently, in June 2015, the Veteran informed a VA examiner that he did not receive SSA benefits. Therefore, there is no evidence that outstanding, relevant SSA records exist. The Veteran was afforded a VA examination for his allergic rhinitis with sinusitis and sinus headaches in April 2007 and June 2015. The VA April 2007 and June 2015 examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe his allergic rhinitis with sinusitis in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Veteran testified at hearings before members of the Board in January 2009 and June 2012. The hearings focused on the elements necessary to substantiate his claims and, through his testimony and his representative's statements, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); see also Procopio v. Shinseki, 26 Vet. App 76 (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. As relevant to the issue being decided, the Board remanded this case in November 2011 so the Veteran could be afforded a new hearing, which was held in June 2012. In February 2013, the Board remanded this case so that additional VA treatment records could be obtained from the Tampa VA Medical Center (VAMC) from the 1970s. The RO attempted to obtain these records, but received a negative response. The Veteran was notified of this in August 2015. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Increased Rating Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a non service-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107 (West 2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in June 2006. The Veteran's disability is assigned a noncompensable disability rating under Diagnostic Code 6522-6514. Under Diagnostic Code 6522, allergic or vasomotor rhinitis, a 10 percent rating is warranted when there are no polyps, but there is greater than 50 percent obstruction of nasal passage on both sides, or complete obstruction on one side. 38 C.F.R. § 4.97 (2017). Diagnostic Codes 6510 through 6514 are rated according to the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97 (2017). Under the rating formula, a noncompensable rating is assigned for sinusitis that is detected by X-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. The outpatient records do not reflect ongoing treatment for an allergic sinus condition. The Veteran underwent a VA examination in April 2007. He complained of having a runny nose almost every day, sinus congestion every evening, and sinus headaches once or twice per week. He stated that he had not been prescribed antibiotics in the previous 12 months. Upon examination, he had white nasal discharge. He did not have crusting, polyps, or purulent discharge. He had a 25 percent obstruction of each nostril, and tenderness and redness of the frontal and maxillary sinuses. He did not have throat exudate. The examiner diagnosed allergic rhinitis and allergic sinusitis with sinus headaches. He underwent a second VA examination in June 2015. The examiner diagnosed allergic rhinitis. The Veteran did not have a greater than 50 percent obstruction of nasal passages on both sides or a complete obstruction on either side. He did not have polyps or permanent hypertrophy of the nasal turbinates. He had chronic nasal discharge and drainage. A CT scan reflected mild paranasal sinus disease. At his June 2012 hearing, the Veteran testified that he was unable to be around dust because it would make him sneeze. He testified that his sinuses sometimes feel dry and they drain. He stated that he had painful sinus headaches three to four times a week. The evidence of record does not show that the criteria for a compensable rating are met under either Diagnostic Code 6522 or 6514. The medical and lay evidence does not show that the Veteran has greater than 50 percent obstruction of his nasal passages on both sides or complete obstruction of one side. Therefore, the criteria for a compensable disability rating under Diagnostic Code 6522 are not met. 38 C.F.R. § 4.97 (2017). The medical evidence and the Veteran's credible description of his symptoms show that he has tenderness, chronic nasal discharge, and sinus headaches. The evidence does not show that he has incapacitating episodes that last four to six weeks and require antibiotics. Additionally, the evidence does not show that he has three to six non-incapacitating episodes that are characterized by headaches, pain, and purulent discharge or crusting. Although the Veteran has sinus headaches and pain, the evidence of record shows that he has neither purulent discharge nor crusting. The Board has carefully considered 38 C.F.R. § 4.7 (2017), which instructs evaluators to assign a higher disability rating "if the disability picture more nearly approximates the criteria required for that rating." Similarly, the Board has also considered 38 C.F.R. § 4.21 (2017), which instructs that "[i]t n view of the number of atypical instances it is not expected...that all cases will show all the findings specified." However, in light of the conjunctive "and" in the criteria for a 10 percent disability rating under Diagnostic Code 6514, all criteria must be met to establish entitlement to the 10 percent schedular disability rating. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting that the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); see also Heuer v. Brown, 7 Vet. App. 379, 385 (1995) (holding that criteria expressed in the conjunctive are connected by "and"); see also Malone v. Gober, 10 Vet. App. 539 (1997) (construing "and" as conjunctive in a statute). In fact, the Federal Circuit has held that if disability rating criteria are written in the conjunctive and are successive, "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation," and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). The evidence of record does not show, and the Veteran has not claimed, that he has experienced purulent discharge or crusting. Therefore, the criteria for a compensable rating under Diagnostic Code 6514 are not met. Id. For these reasons, the criteria for an initial compensable disability rating for allergic rhinitis with sinusitis and sinus headaches are not met. The overall disability picture for this disability does not more closely approximate a compensable rating under the applicable Diagnostic Codes. 38 C.F.R. § 4.7 (2017). Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3 (2017). There is no evidence of exceptional or unusual circumstances to warrant remand to refer this claim for extraschedular consideration. 38 C.F.R. § 3.321 (b)(1) (2017). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, there must be a comparison between the level of severity and the symptomatology of the Veteran's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral to the Director of the Compensation Service for consideration of an extraschedular rating is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's disability are contemplated by the schedular criteria set forth in Diagnostic Codes 6522 and 6514. Specifically, he has frequent headaches, pain, and non-purulent discharge. The criteria practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability, such that he is adequately compensated for "considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See 38 C.F.R. § 4.1 (2017). Further, no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that remand for referral of this case for extraschedular consideration is not in order. The Board notes that under Johnson v. McDonald, 762 F. 3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected symptoms experienced. However, in this case, the Veteran has not asserted, nor is it reasonably raised by the record, that there is a collective impact of his service-connected disabilities. Therefore, remand for referral for extraschedular consideration on a collective basis is not warranted. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Lastly, when entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the evidence does not show that the Veteran's allergic rhinitis and sinusitis with sinus headaches has caused unemployability. Instead, the evidence shows that his psychiatric condition prevents him from working. Specifically, the Veteran asserts this in his September 2015 VA Form 21-8940. The issue of entitlement to an increased rating for the Veteran's psychiatric disorder is not before the Board. Because there is no evidence of unemployability due to allergic rhinitis with sinusitis and sinusitis headaches, which is the only increased rating claim on appeal, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER Entitlement to an initial compensable disability rating for allergic rhinitis with sinusitis and sinus headaches is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs