Citation Nr: 18144672 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-31 392 DATE: October 25, 2018 ORDER Entitlement to a rating of 10 percent, but no higher, for allergic rhinitis is granted from July 28, 2011, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for vertigo, to include as secondary to service-connected tinnitus, is remanded. FINDING OF FACT The Veteran’s allergic rhinitis has been manifested without polyps. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but no higher, for allergic rhinitis are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.97, Diagnostic Code (DC) 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military duty from August 2000 to August 2005. The issue of an increased rating for allergic rhinitis comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, continued the Veteran’s noncompensable rating for her service-connected allergic rhinitis. In January 2013, the Veteran requested the VA reconsider her evaluation for allergic rhinitis, which the Board construes as a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in April 2016. The Veteran filed a VA Form 9 in June 2016 and elected not to appear before the Board for an optional hearing. The issue of entitlement to service connection for vertigo comes before the Board on appeal from a November 2014 rating decision. The Veteran filed a NOD in July 2015 and the RO issued a SOC in April 2016. The Veteran filed a VA Form 9 in June 2016 and elected not to appear before the Board for an optional hearing. 1. Entitlement to a compensable rating for allergic rhinitis Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. §1155; 38 C.F.R. §4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R., Part 4. The Veteran’s entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). However, where the question for consideration is the propriety of the initial rating assigned after the grant of service connection, an evaluation of the record evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged ratings” are required. See Fenderson v. West, 12 Vet. App. 119,126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. Thus, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107 (b); 38 C.F.R. § 3.102, 4.3. The Board has considered the entire record, including the Veteran’s VA clinical records. These show complaints and recommendations for treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran’s allergic rhinitis is currently rated as noncompensable under 38 C.F.R. § 4.97, DC 6522. Under DC 6522, a 10 percent disability rating is assigned 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 assigned for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. Alternatively, under the General Rating Formula for sinusitis (Diagnostic Codes 6510 through 6514), a 10 percent rating requires 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 rating requires 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 rating requires osteomyelitis following radical surgery or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, DCs 6510 through 6514. A note following DCs 6510 through 6514 defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. The Veteran contends that her allergic rhinitis is more disabling than what is represented by the current rating. Private treatment records from January 2012 show that the Veteran had allergic rhinitis and asthma and developed worsening oral allergy symptoms with oral puritis if she ate any fruits and many fresh vegetables. The Veteran was noted to be on allergy shots in the past, but stopped due to recurrent swelling at the injection site. The Veteran was provided with a VA examination in February 2012 where she reported that she has been taking the prescribed medications, but unfortunately her condition seems to have gotten worse. The VA examiner noted a diagnosis of allergic rhinitis and chronic sinusitis with symptoms of headaches, pain and tenderness of affected sinus, and purulent discharge or crusting. No incapacitating or non-incapacitating episodes were noted. The Veteran did not have any sinus surgeries. The examiner noted that the Veteran has allergic, vasomotor, bacterial or granulomatous rhinitis, but without 50 percent obstruction on both sides, complete obstruction on one side, permanent hypertrophy of the nasal turbinates, or nasal polyps. The Veteran did not have any granulomatous conditions. The examiner noted no larynx or pharynx conditions, no traumatic deviated septum, and no tumors or neoplasms. A September 2014 VA x-ray of the sinuses showed normal paranasal sinuses. The Veteran was provided with another VA examination in October 2014 where she reported year-round sinus congestion, plugging of ears, itchy eyes, runny nose, congestion, headaches and recurring hives. The VA examiner noted diagnoses of chronic sinusitis and allergic rhinitis. The sinusitis symptoms included episodes of sinusitis, near constant sinusitis, headaches, and pain and tenderness of affected sinus. No incapacitating or non-incapacitating episodes were noted. The Veteran did not have any sinus surgeries. The examiner noted that the Veteran has allergic, vasomotor, bacterial or granulomatous rhinitis, but without 50 percent obstruction on both sides, complete obstruction on one side, permanent hypertrophy of the nasal turbinates, or nasal polyps. The Veteran did not have any granulomatous conditions. The examiner noted no larynx or pharynx conditions, no traumatic deviated septum, and no tumors or neoplasms. Private treatment records from January 2016 showed that the Veteran had been taking allergy shots for the last three years and has less hay fever than she used to. The Veteran was noted to by symptomatic enough that she takes antihistamines daily. The private examiner noted intermittent post nasal drip, nasal congestion, and sometimes a sore throat. The Veteran was most recently afforded a VA examination in December 2016 where she reported that her condition has gotten worse. The VA examiner noted diagnoses of allergic rhinitis and recurrent sinusitis in remission. The sinusitis symptoms included episodes of sinusitis, with non-incapacitating episodes happening three times in the past 12 months. There were no incapacitating episodes within the past 12 months. The Veteran did not have any sinus surgeries. The examiner noted that the Veteran had rhinitis with greater than 50 percent obstruction on both sides. There was not complete obstruction on one side or nasal polyps. The examiner noted permanent hypertrophy of the nasal turbinates. The Veteran did not have any granulomatous conditions. Imaging studies of the paranasal sinuses were negative. Upon review of the evidence, the Board finds that the Veteran’s allergic rhinitis warrants a 10 percent rating, but no higher, under DC 6522. Throughout the entire appeal period, there has been no medical evidence showing that the Veteran has had allergic rhinitis with polyps. As such, a higher rating under DC 6522 is not warranted here. The Board also finds that the Veteran is not entitled to a higher rating under other DCs. Although the December 2016 VA examiner found permanent hypertrophy of the nasal turbinates, the Veteran has not been found to have bacterial rhinitis with permanent hypertrophy of turbinates or granulomatous rhinitis to warrant higher ratings under DCs 6523 or 6524. The Board acknowledges the December 2016 VA examination that shows non-incapacitating episodes attributed to sinusitis. However, the Board notes that the Veteran has been service-connected for sinusitis, for which she has been assigned a 50 percent rating under DC 6513. As DC 6513 takes into account the frequency of incapacitating and non-incapacitating episodes in its rating criteria, the Board finds that the Veteran’s complaints of headaches and associated symptoms have already been taken into consideration. The anti-pyramiding provision of 38 C.F.R. § 4.14 directs that evaluation of the ‘same disability’ or, more appropriately in this case, the ‘same manifestation’ under various diagnoses is to be avoided. Indeed, in Esteban v. Brown, 6 Vet. App. 259 (1994), the Court of Appeals for Veterans Claims (Court) held that, for purposes of determining whether a Veteran is entitled to separate ratings for different problems or residuals of an injury, without violating the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with the symptomatology of the other conditions. In sum, the Board finds that the Veteran is warranted a disability rating of 10 percent from July 28, 2011, for her service-connected allergic rhinitis. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for vertigo, to include as secondary to service-connected tinnitus The Veteran contends that she suffers from vertigo that is related to her service. In the alternative, she claims that her vertigo is secondary to her service-connected tinnitus. The Veteran’s service treatment records show that she reported being dizzy for two weeks in August 2002. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for vertigo, to include as secondary to service-connected tinnitus because no VA examiner has provided an opinion on whether the Veteran’s vertigo is related to her service or to her service-connected tinnitus. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her vertigo. A copy of this Remand is to be made available for review by the examiner. The examiner should address the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s vertigo had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event? In so opining, the examiner should consider the August 2002 service treatment records showing that the Veteran reported feeling dizzy for two weeks. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s vertigo is proximately due to the Veteran’s service-connected tinnitus? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s vertigo is aggravated (i.e., permanently worsened beyond the natural progression) by the Veteran’s service-connected tinnitus? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 2. After completing the above action, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel