Citation Nr: 18140056 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-09 622 DATE: October 2, 2018 ORDER A disability rating greater than 10 percent for allergic rhinitis with atopic asthma and chronic bronchitis is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the pendency of the appeal period, the Veteran’s allergic rhinitis with atopic asthma and chronic bronchitis has not been manifested by FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication; or greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. 2. The Veteran’s service-connected disabilities do not, singly or in combination, preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for allergic rhinitis with atopic asthma and chronic bronchitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.7, 4.97, Diagnostic Code (DCs) 6522-6602. 2. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to June 1970. The Veteran’s increased rating claim comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs’ (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in June 2018. A transcript of this proceeding has been associated with the claims file. With regard to the TDIU issue, during the course of his appeal for a higher rating for his allergic rhinitis with atopic asthma and chronic bronchitis, the Veteran has argued that he has trouble working due to his disability. He submitted a formal claim for a TDIU in July 2013 in which he noted that he last worked full-time in 2003. And, during the June 2018 Board hearing, the Veteran reported that he was self-employed as an insurance salesman but that he worked intermittently and had only made $50 in the last month. The Board finds that this raises a TDIU claim. When a TDIU for a service-connected disability is raised in connection with an increased rating claim for that service-connected disability, the Board has jurisdiction over the issue of TDIU because it is part of the claim for increased compensation. Thus, the TDIU claim was added to the Veteran’s appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. A disability rating greater than 10 percent for allergic rhinitis with atopic asthma and chronic bronchitis Disability ratings for each service-connected disability are determined by the application of the VA 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the assignment of a DC (diagnostic code), hyphenated DCs may be used. Diseases will be identified by the number assigned to the disease itself, followed by a hyphen, with the residual condition listed last. Unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and “99.” See 38 C.F.R. § 4.27. By way of history, service connection for allergic rhinitis was initially granted by rating decision dated in December 1970. At that time, the Veteran’s disability only included allergic rhinitis and was rated as 10 percent disabling pursuant to DC 6599-6501. Subsequently, by rating decision dated in December 1977, the RO recharacterized the Veteran’s disability to include atopic asthma and continued the 10 percent disability rating assigned. In October 1996, VA changed the rating criteria for evaluation of diseases of the nose and throat. The new rating criteria eliminated DC 6501, which pertained to chronic or atrophic rhinitis, and added a new diagnostic code for allergic or vasomotor rhinitis, DC 6522. Most recently, by rating decision dated in June 2016, the RO again recharacterized the Veteran’s disability to include chronic bronchitis. In this case, the Veteran’s allergic rhinitis with atopic asthma and chronic bronchitis is currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.97, DCs 6522-6602. Under DC 6522, a 10 percent disability rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 30 percent disability rating is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. A polyp is “an abnormal protruding growth from a mucous membrane.” Dorland’s Illustrated Medical Dictionary, 1514 (31st ed. 2007). Under DC 6602, bronchial asthma, a 10 percent rating is assigned for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned under DC 6602 for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97, DC 6602. Evidence relevant to the current level of severity of the Veteran’s disability includes VA examination reports dated in June 2012, July 2012, September 2013, and February 2016. During a June 2012 VA sinuses examination, the examiner noted diagnoses of allergic rhinitis and sinuses. The examiner noted a long history of allergies which were worse in the spring. Specifically, he experienced nasal congestion, rhinorrhea, and post-nasal drainage. He was unable to take oral antihistamines because they resulted in depression. He described experiencing approximately one episode of sinusitis per year where he will antibiotics with good results. On physical examination, the examiner noted that the Veteran had rhinitis and that there was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was also no permanent hypertrophy or the nasal turbinates and no nasal polyps. Significantly, the examiner found that the Veteran’s rhinitis did not impact his ability to work. During a July 2012 VA respiratory examination, the examiner noted a diagnosis of asthma. At that time, the Veteran reported a history of periodic wheezing (since 1977 and coughing from time to time but indicated that his primary problem was allergic rhinitis. The Veteran also reported that he had recently been treated for bronchitis with antibiotics. The examiner noted that the Veteran’s asthma did not require the use of oral or parenteral corticosteroid medications. The Veteran’s asthma did require the use of inhaled medications on an intermittent basis and did not require continuous oxygen therapy. The Veteran indicated that he had not had any asthma attacks with episodes of respiratory failure in the past 12 months. While he did see a physician regularly for required care of exacerbations, this was less frequently than monthly. Pulmonary function testing revealed the following post-bronchodilator results: FVC of 139% predicted; FEV-1 of 138 percent predicted; and FEV-1/FVC of 99 percent predicted. Notably, the examiner found that FEV-1/FVC most accurately reflected the Veteran’s level of disability. The examiner found that the Veteran’s respiratory condition impacted his ability to work and noted that low pollen and dust environment were ideal to prevent possible exacerbations. During a September 2013 VA sinuses examination, the examiner continued a diagnosis of allergic rhinitis. On physical examination, the Veteran was able to move air on both sides of nares and there was no postpharyngeal drainage. The examiner opined that the Veteran’s allergic rhinitis did not impact his ability to work. During a September 2013 VA respiratory examination, the examiner continued a diagnosis of asthma. At that time, the Veteran reported that he had to stay indoors with air conditioning due to his asthma. He reported that he cannot use a vacuum due to dust and, when he is treated with allergy shots, his turbinates are always swollen. The Veteran’s asthma did not require the use of oral or parenteral corticosteroid medications and did not require the use of inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran denied experiencing any asthma attacks with episodes of respiratory failure in the past 12 months and also denied any physician visits for required care of exacerbations. Pulmonary function testing revealed the following post-bronchodilator results: FVC of 135 percent predicted; FEV-1 of 136 percent predicted; and FEV-1/FVC of 101 percent predicted. Notably, the examiner found that FEV-1 most accurately reflected the Veteran’s level of disability. Significantly, the examiner found that the Veteran’s respiratory condition did not impact his ability to work. During a February 2016 VA sinuses examination, the examiner continued a diagnosis of allergic rhinitis. At that time, the Veteran reported seeing an allergist for immunotherapy which was started in November 2012 and continues to date. The Veteran reported that formal testing revealed that he was allergic to trees, grass, weeds, and mold. He stated that he could not do yardwork due to his allergies and used a lawn service for that purpose. He described symptoms of nasal congestion, rhinorrhea, and post-nasal drainage which was worse when he was outdoors and the mold count is high. His symptoms were better when he stayed indoors, especially February and March. The Veteran used “Simply Saline,” which is available over the counter, at least once daily in his nose to keep the membranes moist and loosen secretions. He used Allegra-D occasionally for nasal symptom relief. The Veteran experienced approximately three episodes of acute sinusitis in the last 12 months for which he received a short 5-day course of antibiotics (Doxycycline) at each occurrence. On physical examination, the examiner noted that the Veteran experienced rhinitis but that there was less than a 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was no hypertrophy of the nasal turbinates, no nasal polyps, and no granulomatous conditions. There were no other pertinent physical findings. Significantly, the examiner found that the Veteran’s allergic rhinitis impacted his ability to work. Specifically, the examiner noted that allergic rhinitis symptoms flare with outdoor work such as cutting the lawn and raking leaves, especially when the mold count is high. During the February 2016 VA respiratory examination, the examiner continued a diagnosis of asthma. At the time of the examination, the Veteran denied wheezing and/or shortness of breath but did complain of an occasional cough and a feeling of “inflammation” in his lungs as well as upper back muscular spasms. These symptoms occurred on a daily basis. He denied any visits to a pulmonary/ear nose and throat clinic since his last VA examination. He also denied previous hospitalizations. He was not on any inhalers or other medication for treatment of asthma because he stated that he is “allergic” to most off them or that they exacerbate his depressive symptoms. The Veteran reported that he had been seeing a private allergist for immunotherapy regarding his allergic rhinitis. The Veteran stated that his skin testing showed that he is allergic to trees, grass, weeds, and molds. He noticed that his asthma symptoms were worse outdoors with exposure to these allergens. The Veteran’s asthma did not require the use of oral or parenteral corticosteroid medications, inhaled medications, and/or oral bronchodilators. He also did not require the use of antibiotics or outpatient oxygen therapy. The Veteran had not had any asthma attacks with episodes of respiratory failure in the last 12 months and had not had any physician visits for required care of exacerbations. Pulmonary function testing revealed the following pre-bronchodilator results: FVC of 144 percent predicted; FEV-1 of 137 percent predicted; FEV-1/FVC of 95 percent predicted; and DLCO of 85 percent predicted. Notably, the Veteran refused use of a bronchodilator and the examiner found that FEV-1/FVC most accurately reflected the Veteran’s level of disability. Significantly, the examiner found that the Veteran’s respiratory condition impacted his ability to work as his symptoms interfered with his quality of life and productivity. He also had to take breaks during the day in which he had to lie down and rest due to upper back muscular spasms which he felt was caused by lung “inflammation” and asthma exacerbation. Also of record are VA treatment records dated through June 2017 and private treatment records dated through August 2015. Significantly, private pulmonary function testing in September 2013 revealed the following pre-bronchodilator results: FVC of 119 percent predicted; FEV-1 of 112 percent predicted; FEV-1/FVC of 73 percent predicted. Also, during the June 2018 Board hearing, the Veteran testified that he experiences significant sneezing and fatigue due to his rhinitis/asthma. Specifically, he reported that he had to nap two to four times per day due to fatigue and, after receiving his allergy shots each month, he is fatigued for an entire week. Upon review of all the evidence of record, lay and medical, the Board finds that the Veteran’s allergic rhinitis with atopic asthma and chronic bronchitis does not warrant a rating in excess of 10 percent. With regard to DC 6522, there is no evidence of a 50 percent obstruction of the nasal passage on both sides due to rhinitis with or without polyps. With regard to DC 6602, pulmonary function tests also do not show results consistent with a higher rating. Specifically, the predicted FEV-1 findings do not fall into the range of 56 to 70 percent, the FEV-1/FVC do not fall into the range of 56 to 70 percent. Treatment records, and the Veteran’s own statements, did not show monthly visits for care of exacerbations. Therefore, the record does not support the assignment of a rating in excess of 10 percent under either DC 6522 or 6602. Likewise, separate ratings for allergic rhinitis and asthma would not result in any increase for the Veteran. As described above, the Veteran does not meet the criteria for a 10 percent rating for allergic rhinitis under DC 6522. Therefore, providing a separate rating would not provide any advantage to the Veteran. The Board also finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there are specific diagnostic codes to evaluate the Veteran’s allergic rhinitis, asthma, and bronchitis, consideration of other diagnostic codes for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). The Board does not find evidence that the Veteran’s disability evaluation should be increased for any separate period based on the facts found during the appeal period. The evidence of record supports the conclusion that he is not entitled to a higher rating. The Board has also considered his statements that his disability is worse than evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, far more probative are the examination reports prepared by skilled professionals. Such competent evidence concerning the nature and extent of the Veteran’s rhinitis/asthma/bronchitis has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board finds that the Veteran has presented credible lay evidence. However, such evidence does not provide a basis for a higher evaluation. Furthermore, other than requesting higher evaluations, his pleadings have been non-specific. However, the Board does find that the Veteran’s reports to the examiner to be competent and credible. As such, the Board finds the examination reports to be more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In conclusion, the Board finds that the preponderance of the evidence is against an increased rating for the claimed disability and the appeal is denied. 2. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) As above, a review of the record shows that the Veteran last worked full-time in 2003 and, while he is presently self-employed as an insurance salesman, this work is intermittent and he only made $50 in the last month. The Veteran contends that he is unable to work due to his nonservice-connected allergic rhinitis with atopic asthma and chronic bronchitis and depression. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extra-schedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for the following disabilities: depression, evaluated as 30 percent disabling; allergic rhinitis with atopic asthma and chronic bronchitis, evaluated as 10 percent disabling; a scar of the left varicocele, evaluated as noncompensably disabling; and recurrent dislocation of the left shoulder, evaluated as noncompensably disabling. A combined disability evaluation of 40 percent is in effect. 38 C.F.R. § 4.25. As the Veteran does not have either one service connected disability rated at 60 percent or more or a combined disability rating of 70 percent, he does not meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a TDIU on an extra-schedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 6. The Board concludes the Veteran is not unemployable due to his service-connected disabilities. The Veteran’s service-connected disabilities may interfere with some types of work, but would not prevent him from obtaining work. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A review of the evidence shows that the Veteran’s service-connected allergic rhinitis with atopic asthma and chronic bronchitis degrades but does not preclude the Veteran from working. As above, while some of the VA examiners indicated that the Veteran would have difficulty working outside due to his allergies, there is no indication that the Veteran would be unable to work indoors. A review of the evidence shows that the Veteran’s service-connected depression also degrades but does not preclude the Veteran from working. Significantly, a January 2016 VA psychiatric examiner opined that the Veteran’s depressive disorder symptoms are of such severity that one could anticipate substantial impairment in any occupational endeavors consistent with occasional decreases in work efficiency and intermittent periods of an inability to perform occupational tasks or important social tasks/roles. Specifically, the examiner noted that the Veteran’s depression does not cause impairment in interpersonal relatedness but did interfere with attention, concentration, memory, motivation, and drive. However, the Veteran was able to retain a business and follow basic rules/instructions as well as meet basic expectations. (Continued on the next page)   The Board acknowledges that the Veteran’s capacity for employment may also be impaired because of age and other illnesses that are not service-connected. These impairments may not be considered under the criteria for a TDIU. As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel