Citation Nr: 1756468 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-32 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial compensable rating for sinusitis. 2. Entitlement to an initial compensable rating for allergic rhinitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty for the periods June 1988 to January 1993, November 8, 2001 to November 11, 2001, January 2003 to June 2003, October 2008 to August 2011, and June 2014 to June 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of September 2012 and September 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The San Diego, California RO subsequently acquired jurisdiction. The September 2012 rating decision granted service connection for sinusitis and assigned a noncompensable rating with an effective date of August 31, 2011. The September 2013 rating decision granted service connection for allergic rhinitis and assigned a noncompensable rating with an effective date of August 22, 2012. A statement of the case was issued in September 2013 as to the evaluation of sinusitis and in June 2014 as to the evaluation of allergic rhinitis. The Veteran filed a timely substantive appeal as to the ratings assigned for sinusitis and allergic rhinitis. See VA Form 9 of Oct. 2013 and July 2014. Although the agency of original jurisdiction certified to the Board only the issue of entitlement to an increased rating for allergic rhinitis, the Veteran has timely appealed both rating issues, and the Board has jurisdiction. See 38 C.F.R. §§ 19.35, 20.200 (2017). FINDINGS OF FACT 1. Throughout the entire period under review, the Veteran's sinusitis is manifested by three to six non-incapacitating episodes over a 12-month period, headaches, pain, and purulent discharge or crusting; he has not had repeated surgeries, more than six non-incapacitating episodes per year, or incapacitating episodes. 2. Throughout the entire period under review, the Veteran's allergic rhinitis is not manifested by greater than 50-percent obstruction of nasal passage on both sides, complete obstruction on one side, or polyps. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, and not higher, for service-connected sinusitis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.10, 4.97, Diagnostic Code 6512 (2017). 2. The criteria for a compensable rating for service-connected allergic rhinitis have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.10, 4.97, Diagnostic Code 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim. VA has satisfied the notification and duty-to-assist provisions of the VCAA. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In June 2011, the Veteran's claim for service connection for allergic rhinitis and sinusitis was filed as part of VA's Benefits Delivery at Discharge Program prior to his separation from service. Notice of the information and evidence needed to substantiate the claim and the process by which VA assigns disability ratings and effective dates was given to the Veteran. In June 2011, the Veteran acknowledged receipt of the notice. Where, as here, the underlying claim for service connection has been granted and the disagreement relates to a "downstream" question such as the assigned rating, additional VCAA notice is not required. See Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain an opinion when necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). In this case, the evidence of record includes service treatment records, service personnel records, private treatment records, and statements of the Veteran. The Veteran has identified no outstanding evidence pertaining to his disabilities that could be obtained to substantiate the claim, and the Board is unaware of any such outstanding evidence. The Veteran underwent VA examinations in August 2011 and August 2013. The findings of the examination reports are adequate for adjudicatory purposes. See 38 C.F.R. § 3.159(c)(4) (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran argues that the August 2011 VA examiner, being an "occupational medicine doctor," was not qualified to assess the complexity of the Veteran's claims and that therefore VA failed to provide a thorough and contemporaneous examination. See notice of disagreement of November 2012. Generally, there is a rebuttable presumption that VA has properly chosen a person who is qualified to provide a medical opinion or conduct an examination. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed.Cir. 2011). The claimant has the burden of overcoming the presumption by showing a lack of the presumed qualifications. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). In this case, the Veteran has not set forth specific reasons why the VA examiner was not qualified to give a competent opinion. The examiner himself did not call into question his competence, and the Board finds no irregularity in the medical report. The Board therefore finds no basis for addressing the medical professional's competence before considering the findings of the report. See Wise v. Shinseki, 26 Vet. App. 517 (2014); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010). Allergic Rhinitis and Sinusitis Disability ratings assigned in accordance with VA's Schedule for Rating Disabilities are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2017). 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. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). A zero-percent (non-compensable) rating may be assigned under any diagnostic code. See 38 C.F.R. § 4.31 (2017). In determining the present level of a disability for any rating claim, the Board must consider the possible application of staged ratings for diverse symptoms meeting the criteria for different ratings in distinct time periods during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2017). VA must consider all the evidence of record to determine when any ascertainable increase in severity of the rated disability may have occurred. See Hazan v. Gober, 10 Vet. App. 511 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran's service-connected sinusitis has been rated as chronic frontal sinusitis under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6512, which provides that a 10 percent disability rating is warranted with evidence of 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. A 30 percent disability rating is warranted with evidence of three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent disability rating is warranted following radical surgery with chronic osteomyelitis or for near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A note to DC 6512 provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The Veteran's allergic rhinitis has been rated under 38 C.F.R. § 4.97, DC 6522, which provides that 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. A maximum rating of 30 percent is warranted when polyps are present. Analysis The Veteran seeks compensable ratings for the service-connected disabilities of allergic rhinitis and sinusitis. He indicates that he would be satisfied with a 10 percent rating for each disability. See Veteran's filing of October 2013. Upon review of the entire record, the Board finds that a 10 percent rating, and no higher, is warranted for sinusitis and that a preponderance of the evidence is against finding symptoms of allergic rhinitis that warrant entitlement to a compensable rating. The Veteran alleges that, since his separation from active duty, he has continued to experience problems with his sinuses and interference with breathing through his nose at night while sleeping. He takes medication for these symptoms. He reportedly wakes up at least once per night because of breathing interference and rarely gets restful or sufficient sleep. See Veteran's statement of February 2012. The Veteran is service-connected for sleep apnea. See rating decision of September 2015. The Veteran underwent a VA examination in August 2011. While, according to the examiner, the Veteran reported at that time that his allergic rhinitis had resolved with no residuals, the Veteran subsequently argues that he did not state to the examiner that his rhinitis had resolved and that he continued to suffer rhinitis symptoms. See Veteran's statement of May 2013. The Board will assume that the Veteran is correct on this point and that his rhinitis had not, in fact, resolved in August 2011 or thereafter. Upon examination, the Veteran was found to be normal as to allergic rhinitis. With respect to sinusitis, the August 2011 examiner noted the Veteran's report of headaches and the taking of antibiotics. The Veteran's most recent x-rays and CT scan of the sinuses were negative. He had had no incapacitating episodes. Sinusitis did not affect his usual occupation, and he had not missed any work. There were no residuals. The examiner found "excellent airway exchanged." The diagnosis was minor sinusitis with normal CT scan, x-rays, and CBC, and treated with over-the-counter medication. A September 2012 treatment record of Dr. A. B. notes the absence of polyps. An October 2012 treatment record notes fluctuating, bilateral nasal obstruction primarily due to inferior turbinate hypertrophy. See October 2012 record of Dr. A. B. A physician's assistant record of October 2012 notes that the Veteran suffers from chronic nasal congestion, restricted airways, and sinus pain. The Veteran underwent a VA examination in August 2013. The examiner noted that the Veteran had undergone a turbinectomy in January 2013 due to difficulty breathing and that, since the surgery, he had been able to breath better but continued to have weekly bouts of rhinitis for which he took Claritin and Flonase. The Veteran reported having sinusitis two to three times per year, which required the use of antibiotics. He said that, following the surgery for turbinate reduction, there had been no further sinus infections. The Veteran was noted to have had two non-incapacitating episodes of sinusitis over the past 12 months. There were no incapacitating episodes. With respect to rhinitis specifically, the Veteran was found not to have greater than 50 percent obstruction of the nasal passage on both sides, no complete obstruction on one side, and no permanent hypertrophy of the nasal turbinates. There were no nasal polyps and no granulomatous conditions. See August 2013 VA examination report. In October 2013, the Veteran reported that he had greater than 50-percent obstruction of his nasal passages on both sides or complete obstruction on one side, and experienced three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. See October 2013 notice of disagreement. In December 2014, the Veteran stated that he continued to suffer daily sinus pressure, pain, and congestion. He also reported daily treatment with nasal rinses and steroids and the frequent use of antibiotics. See Veteran's statement of December 2014. The Veteran is competent to report his experienced symptoms, such as non-incapacitating episodes and the presence of purulent discharge and crusting. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although the September 2013 VA examiner found that the Veteran had experienced only two non-incapacitating episodes over the preceding 12 months, the Veteran reported in October 2013 that he had experienced between three and six such episodes per year. The Board has no basis upon which to question the Veteran's credibility as to the number and frequency of non-incapacitating sinusitis episodes he has experienced. Accordingly, the criteria of a 10 percent rating for sinusitis are met. The criteria for a higher, 30 percent rating are not met, as the preponderance of the evidence is against finding that the Veteran has experienced three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Veteran has stated that he would be satisfied with a 10 percent rating. See Veteran's filing of October 2013. A claimant may expressly limit a claim or appeal to the issue of entitlement to a disability rating that is less than the maximum disability rating allowed by law. See AB v. Brown, 6 Vet. App. 35, 39 (1993). With regard to allergic rhinitis, the Veteran's belief that his disability merits a compensable rating is outweighed by the competent and credible medical examination of August 2013 that evaluated the extent of impairment based on objective data coupled with the Veteran's statements to the examiner. The VA examiner found no polyps, obstruction of the nasal passage on both sides that was not greater than 50 percent, and no complete obstruction on one side due to rhinitis. The VA examiner has the training and expertise necessary to determine the type and degree of impairment associated with the Veteran's disability, specifically the presence of any polyps and the percentage of obstruction of the nasal passages. Greater evidentiary weight is placed on the physical examination findings. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The Board finds that uniform, as opposed to staged, ratings are warranted. The Veteran's symptoms have at no time met or approximated the criteria for a rating greater than 10 percent for sinusitis or for a compensable rating for allergic rhinitis. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), when either expressly raised by a claimant or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reports various symptoms associated with his disabilities, including three to six non-incapacitating episodes per year due to sinusitis, but he does not argue, and the evidence does not suggest, that his service-connected disabilities render him unable to obtain or maintain a substantially gainful occupation. See 38 C.F.R. § 4.16(a) (2017). Accordingly the Board concludes that the issue of TDIU has not been raised in this case. ORDER A disability rating of 10 percent, and not higher, is granted for sinusitis, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a compensable disability rating for allergic rhinitis is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs