Citation Nr: 1801914 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-32 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a compensable initial rating for allergic rhinitis prior to May 08, 2017, and a rating in excess of 10 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Brandt, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1983 to June 1983 and from December 1990 to August 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for allergic rhinitis, effective October 27, 1998. During the appeal, in a July 2017 rating decision, the AOJ increased the assigned disability evaluation for allergic rhinitis to 10 percent, effective May 08, 2017. . As the highest possible rating for this disability has not been assigned, the appeals continue. See AB v. Brown, 6 Vet. App. 35 (1993). This matter was previously before the Board in January 2014 and April 2017, where it was remanded for additional development. FINDINGS OF FACT 1. For the period prior to May 08, 2017, the Veteran's allergic rhinitis is shown to be manifested by congestion without obstruction of the nasal passage or polyps. 2. For the period beginning May 08, 2017, the Veteran's allergic rhinitis is manifested by 50 percent obstruction of the nasal passage on both sides without nasal polyps. CONCLUSIONS OF LAW 1. For the period prior to May 08, 2017, the criteria for a compensable initial rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6522 (2017). 2. For the period beginning May 08, 2017, the criteria for an evaluation in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.14, 4.97, Diagnostic Code 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in January 2007. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds there has been substantial compliance with its January 2014 and April 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). In this regard, the Board notes that the Veteran's representative specifically indicated that the remand instructions had been complied with in a November 2017 post-remand brief. II. Increased Rating Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis As noted above, a rating decision dated in April 2011 granted service connection for allergic rhinitis and assigned an initial noncompensable rating, effective October 27, 1998. A July 2017 rating decision increased the disability rating for service-connected allergic rhinitis to 10 percent, effective May 08, 2017. Allergic or vasomotor rhinitis is rated under Diagnostic Code 6522. Under Diagnostic Code 6522, allergic rhinitis warrants a 10 percent rating 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. 38 C.F.R. § 4.97, Diagnostic Code 6522. The Veteran seeks a higher initial rating for his service-connected allergic rhinitis. As noted above, the Veteran's allergic rhinitis has been rated as noncompensable for the period prior to May 08, 2017, and 10 percent disabling thereafter. For the reasons discussed below, the Board finds that a higher rating is not warranted for allergic rhinitis for either period on appeal. Summarizing the pertinent evidence with the above legal criteria in mind, on VA examination in December 1998, the Veteran was noted to have allergic rhinitis by history. On VA examination in September 2002, the Veteran complained of nasal congestion with clear drainage and difficulty with breathing during episodes of nasal congestion. The Veteran stated that he uses nasal sprays and experiences daily allergic attacks. On examination, the examiner indicated that there was no obstruction of either nostril and that the pharynx and nasal mucosa were normal. In February 2003 and February 2004 VA treatment records, it was noted that the Veteran was taking medication for his allergies. On VA examination in January 2009, the examiner noted that the Veteran claimed that he developed a nasal allergy and has been treated several times for this condition with medication. The examiner also noted a diagnosis of chronic sinusitis, mucus retention cyst of the left maxillary sinus, and deviated nasal septum to the right (July 2008) and diagnosed the Veteran with allergic rhinitis. The Veteran complained of nasal stuffiness and itchy nose and eyes. He denied purulent discharge and speech impairment. On examination, the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to his rhinitis nor complete obstruction on one side due to the rhinitis. There were no nasal polyps. The examiner noted a mild septum deviation causing no obstruction. A VA treatment record dated in October 2013, noted that the Veteran took medication to control his rhinitis. On VA examination in May 2017, the examiner noted a diagnosis of allergic rhinitis. The examiner noted that the Veteran complained of daily nasal congestion and difficulty breathing and took Flonase nasal inhalers and Claritin daily. The examiner found hyperemia and hypertrophy of nasal turbinates bilaterally. The examiner also found 50 percent obstruction of the nasal passage on both sides due to rhinitis. There were no nasal polyps. The Veteran did not have any granulomatous conditions. The examiner indicated that the Veteran's allergic rhinitis did not impact his ability to work. The Board finds that the earliest objective medical evidence of nasal obstruction is the May 2017 VA examination. This examination report showed 50 percent nasal obstruction on both sides. Thus, a compensable rating is not warranted prior to that examination. The Board acknowledges that the Veteran has described breathing difficulty and daily congestion at various times throughout the period on appeal. However, the record reflects that while he may have experienced subjective symptoms of breathing difficulty due to congestion at various times throughout the appeal period, the objective evidence did not demonstrate any nasal obstruction prior to May 2017. Significantly, the prior VA examinations did not reveal any objective findings of nasal obstruction. See, e.g., January 2009, August 2002, and December 1998 VA examination reports. By May 2017, 50 percent obstruction of the nasal passages bilaterally was demonstrated. The pertinent diagnostic code requires nasal obstruction for a higher rating. Accordingly, prior to May 08, 2017, an initial compensable evaluation is not warranted. Additionally, an evaluation higher than 10 percent is not warranted for the period beginning May 08, 2017, as there is no evidence of nasal polyps. In sum, the Board finds that a preponderance of the evidence is against a compensable rating prior to May 08, 2017, and a rating in excess of 10 percent thereafter, for allergic rhinitis. ORDER For the period prior to May 08, 2017, an initial compensable rating for allergic rhinitis is denied. For the period beginning May 08, 2017, entitlement to a rating in excess of 10 percent for allergic rhinitis is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs