Citation Nr: 18141898 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 12-25 209 DATE: October 11, 2018 ORDER Entitlement to service connection for pleurisy as secondary to service-connected asthma, also claimed as restrictive airway disease is denied. For the period prior to May 27, 2016, a compensable initial evaluation rating for service-connected allergic rhinitis is denied. For the period from May 27, 2016, the criteria for rating in excess of 10 percent for service-connected allergic rhinitis is denied. FINDINGS OF FACT 1. The Veteran’s pleurisy is neither proximately due to nor aggravated beyond its natural progression by his service-connected asthma, and is not otherwise related to an in-service injury, event, or disease. 2. For the period of appeal prior to May 27, 2016, the Veteran’s allergic rhinitis was manifested by symptoms that more nearly approximate less than 50 percent obstruction of each nasal passage or incomplete obstruction on one side, and no polyps. 3. For the period of appeal from May 27, 2016, the Veteran’s allergic rhinitis was manifested by symptoms that more nearly approximate greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, and no polyps. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for pleurisy as secondary to service-connected asthma, also claimed as restrictive airway disease have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). 2. For the period of appeal before May 27, 2016, the criteria for a compensable rating for allergic rhinitis have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.97, Diagnostic Code 6522 (2017). 3. For the period of appeal from May 27, 2016, the criteria for a rating in excess of 10 percent rating for allergic rhinitis, have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.97, Diagnostic Code 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to January 2001. This matter comes before the Board of Veterans Appeals (Board) on appeal from March 2010 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The March 2010 rating decision denied service connection for pleurisy and allergies and the December 2011 rating decision continued the denial of service connection for pleurisy as secondary to asthma and granted service connection for allergic rhinitis with a noncompensable disability rating effective July 23, 2009. This matter was remanded by the Board in June 2015 to obtain additional medical records and to afford the Veteran a new VA examination for her service-connected allergic rhinitis. On remand, the requested actions were completed by the AOJ; therefore, the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). The RO issued a rating decision in February 2018 assigning a 10 percent disability rating for the Veteran’s service-connected allergic rhinitis, effective May 27, 2016. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation and a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the issue remains on appeal. 1. Entitlement to service connection for pleurisy as secondary to service-connected asthma, also claimed as restrictive airway disease The Veteran contends that her pleurisy is due to her active duty service, to include due to her service-connected asthma and medication she takes for her service-connected asthma. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of pleurisy, and the Veteran is service-connected for asthma, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of pleurisy began during service or is otherwise related to an in-service injury, event, or disease, or her service-connected asthma or its related medication. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran indicates that she was first diagnosed with pleurisy in 2007 or 2008, several years after separating from active duty. A September 2011 VA examination indicated that the Veteran was diagnosed with pleurisy in December 2002, more than one year after separating from service. While the Veteran is competent to report having experienced symptoms of pleurisy, she is not competent to establish the relationship between her pleurisy and her other service-connected disabilities. That issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). An April 2010 statement from the Veteran’s VA primary care physician indicated that the Veteran’s asthma and allergies are the “primary cause” of the Veteran’s pleuritic chest pain. The Veteran’s VA treatment records also contain a June 2010 statement from the same physician indicating that the Veteran complained of “intermittent bouts of pleuritic chest discomfort” and that her asthma is the “largest contributor” to her pleuritic pain. There was no rationale given to support these statements. A June 2016 clinic note indicates that the Veteran gets allergy shots from a VA primary care clinic. The Veteran reported that her allergies cause pleuritic chest pain with brown phlegm. The Veteran underwent a VA examination in September 2011. The VA examiner opined that the Veteran’s pleurisy is a manifestation of her Systemic Lupus Erythematosus (SLE), and is not at least as likely as not related to an in-service injury, event, or disease, including taking albuterol for service-connected asthma. The rationale was that the review of medical literature indicates the underlying medical conditions that can cause pleurisy are numerous, including viral, bacterial, or fungal infections, pulmonary embolism, cancer, chest and heart surgery, and other diseases. The examiner opined that the Veteran’s asthma is not a cause of her pleurisy. The Veteran has claimed that her SLE was caused using albuterol for her service-connected asthma. In July 2015 a VA examiner opined that her SLE is not caused by the Veteran’s use of albuterol. The examiner did state that there is a condition known as Drug Induced Lupus Erythematosus (DILE) which usually resolves within days after a drug is discontinued, but that albuterol has not been indicated as a cause of either DILE or SLE. The September 2011 and July 2015 examiners’ opinions are probative, because they were based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board gives more probative weight to the September 2011 and July 2015 VA examiners’ opinions as those opinions provided an explanation contains clear conclusions and supporting date. See Nieves-Rodriguez. Accordingly, as the weight of the evidence is against finding that is at least as likely as not that the Veteran’s current pleurisy is more likely than not caused by her service or a service-connected disability, service connection is denied. 2. Entitlement to an increased disability rating for service-connected allergic rhinitis, claimed as allergies Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski,1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth at 38 U.S.C. § 5107. 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. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the appeal. 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. As noted above, the Veteran’s allergic rhinitis has been rated as noncompensable for the period prior to May 27, 2016, and 10 percent disabling thereafter. For the reasons discussed below, the Board finds that a higher rating is not warranted for rhinitis for either period on appeal. The Veteran has sought treatment from the Indianapolis VA Medical Center for allergic rhinitis and has received immunotherapy injections. A September 2016 clinic note indicates that, as of July 2016, the Veteran has reached the “maintenance phase” of her allergy immunotherapy and that her therapy led to significant relief of symptoms. Subsequent records indicate that the Veteran continues to seek therapy from a VA allery clinic. The Veteran underwent a VA examination in September 2011. There were no polyps noted, obstruction of either nasal passage by more than 50% or complete obstruction of one nasal passage on examination. The Veteran underwent a VA examination in May 2016. The VA examination noted greater than 50 percent obstruction of both nasal passages but no polyps. At the hearing, the Veteran testified that one of her physicians told her that there was 40 percent blockage on one nasal passage and 47 or 48 percent, but “not 50 percent” blockage on the other nasal passage. For the period of appeal before May 27, 2016, as there is no medical evidence of either a greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side, or the presence of polyps, a noncompensable rating is appropriate. The Board has considered the lay testimony; however, finds the objective evidence is of greater probative value. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through his senses, she is not competent to identify a specific level of her nasal disability according to the appropriate diagnostic codes. For the period of appeal after May 27, 2016, although the Veteran’s more recent medical records indicated that she has reached the “maintenance phase” of her therapy, as the May 2016 VA examination noted greater than 50 percent obstruction of both nasal passages but no polyps, a 10 percent rating is appropriate. As there is no evidence of polyps, a higher rating is not warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel