Citation Nr: 18144693 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 07-06 641A DATE: October 25, 2018 ORDER A 10 percent rating for service-connected allergic rhinitis prior to November 25, 2016 is granted. A rating in excess of 10 percent rating for service-connected allergic rhinitis beginning November 25, 2016 is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a cervical spine disorder, to include as secondary to a lumbar spine disability is remanded. Entitlement to a compensable rating for residuals of a fractured, left radial head (minor) is remanded. FINDING OF FACT Throughout the entire appeal period, the Veteran’s allergic rhinitis was manifested by greater than 50 percent obstruction of both nasal passages, without nasal polyps. CONCLUSION OF LAW The criteria for a 10 percent rating for the entire appeal period, but no more, for allergic rhinitis have been met. 38 U.S.C. §§ 1114, 5103, 5107; 38 C.F.R. §§ 4.1, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to September 1999. This matter comes before the Board on appeal from July 2006 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and from a March 2015 rating decision by the RO in Muskogee, Oklahoma. A teleconference hearing was held in November 2014 before the undersigned Veterans Law Judge. The Board remanded the appeal for further development in February 2015. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pursuant to 38 C.F.R. § 4.97 VA Schedule of Ratings for the Respiratory System, DC 6522 provides a 10 percent rating for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. 1. Entitlement to a compensable rating for allergic rhinitis prior to November 25, 2016, and in excess of 10 percent thereafter Prior to November 25, 2016 The Veteran contends that he is entitled to a compensable rating for allergic rhinitis prior to November 25, 2016. In June 2006, a VA Nose, Sinus, Larynx and Pharynx examination report noted the Veteran’s diagnosed episodic seasonal rhinitis, mild. On examination, the Veteran did not have nasal polyps. The examiner evaluated the Veteran’s breathing by asking him to occlude one nostril and sniff through the other nostril. Using that method of bilateral testing, the Veteran exhibited greater than 90 percent soft tissue obstruction of the right nostril and greater than 75-80 percent soft tissue obstruction of the left nostril. During the November 2014 hearing, the Veteran testified that he had greater than 50 percent obstruction of his nasal passages. In October 2015, the Veteran was afforded a VA Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx examination and was diagnosed with allergic rhinitis. The Veteran did not have nasal polyps and there was no evidence of greater than 50 percent obstruction of the nasal passages due to rhinitis. The examiner remarked that there was left deviation of the nasal septum with greater than 50 percent obstruction of the left nasal passage and that the Veteran’s septal deviation is not caused by his service-connected allergic rhinitis. There was no evidence of complete obstruction of one nasal passage. On VA outpatient treatment on December 7, 2015, the Veteran’s deviated nasal septum diagnosis was noted. He was also diagnosed with nasal turbinates. The nasal cavity examination, performed with a speculum, showed greater than 50 percent obstruction of the right nostril and 75 percent obstruction of the left nostril. The examiner also noted that the anterior inferior nasal septum filled the left nostril. In December 2015, the Veteran underwent a nasoplasty that did not significantly improve his nasal passage obstruction. Based upon the foregoing, prior to November 25, 2016, a 10 percent rating, and no more, for allergic rhinitis is warranted pursuant to DC 6522. The June 2006 VA examination and the December 2015 VA treatment note indicate that prior to November 25, 2016, the Veteran had greater than 50 percent nasal obstruction of both nasal passages. A 30 percent rating is not warranted as there is no clinical evidence that the Veteran exhibited allergic or vasomotor rhinitis with polyps. As such, the Board finds that a 10 percent rating, and no more, is warranted for allergic rhinitis prior to November 25, 2016. 38 U.S.C. §§ 1114, 5103, 5107; 38 C.F.R. §§ 4.1, 4.97, DC 6522. Beginning November 25, 2016 In November 2016, the Veteran was afforded yet another VA examination. His allergic rhinitis diagnosis was noted. The Veteran did not have nasal polyps, but had greater than 50 percent obstruction of the nasal passages due to rhinitis. There was no evidence of complete obstruction of one nasal passage. Based upon the foregoing, an increased rating for allergic rhinitis, is not warranted pursuant to DC 6522. The November 2016 VA examination indicates that the Veteran had greater than 50 percent nasal obstruction of both nasal passages. A 30 percent rating is not warranted as there is no clinical evidence that the Veteran exhibited allergic or vasomotor rhinitis with polyps. All in all, the Board finds that an increased rating beginning November 25, 2016 for allergic rhinitis is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to a lumbar spine disability is remanded. The Veteran contends that his cervical spine disorder is related to his service-connected lumbar spine disability. In July 2009, the Veteran was afforded a VA Spine examination and was diagnosed with cervical spondylosis. The examiner rendered a nexus opinion regarding whether the Veteran’s cervical spondylosis was “directly caused by his service-connected low back condition.” The examiner did not opine on whether the Veteran’s cervical spine disorder was aggravated beyond natural progression by the Veteran’s service-connected lumbar spine disability. As such, an addendum medical opinion is needed to decide the appeal. 2. Entitlement to service connection for tinnitus is remanded. In an October 2017 Informal Hearing Presentation, the Veteran asserted that his tinnitus was related to his in-service “head colds and sinus infections”. In support of his theory, the Veteran submitted medical treatise evidence suggesting that tinnitus may be related to an upper respiratory infection (URI), such as a cold, if the tinnitus develops after an URI and does not improve within one week. See https://www.mayoclinic.org/diseases-conditions/tinnitus/symptoms-causes/dxc-20180362. A review of the service treatment records indicates that the Veteran complained of, was treated for and diagnosed with chest colds, recurrent upper respiratory infections and chronic bronchitis throughout his active duty service. In March 2015, VA examined the Veteran and noted his recurrent tinnitus with accompanying pain and decreased hearing diagnosis. The VA examiner provided a nexus opinion regarding whether the Veteran’s tinnitus was due to in-service acoustic trauma. However, the examiner did not opine on whether the Veteran’s tinnitus was related to his in-service chest colds, upper respiratory infections and chronic bronchitis diagnoses. As such, an addendum medical opinion is needed to decide the appeal. 3. Entitlement to a compensable rating for residuals of a fractured, left radial head (minor) is remanded. During the November 2014 hearing, the Veteran testified that he does not have full range of motion of his left arm and that he experiences pain when he straightens his left arm. The Veteran also testified that he has left arm numbness, tingling, occasional popping and swelling. The Veteran was last provided a VA examination in conjunction with his service-connected residuals of a fractured, left radial head (minor) in November 2016. The Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. A review of the claims file reveals that the prior VA examination report includes only active range of motion findings and does not include range of motion findings for passive range of motion. It also does not specify whether the results are weight-bearing or nonweight-bearing. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the appeal. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the Veteran testified that he experiences numbness and tingling in his left arm, a peripheral nerve examination is also required to decide the appeal. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s cervical spine disorder is AGGRAVATED beyond its natural progression by his service-connected lumbar spine disability. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s tinnitus is at least as likely as not related to his in-service complaints of, treatment for, and diagnosed chest colds, URIs, chronic bronchitis and any other viral respiratory condition. (a.) In so opining, please consider the medical treatise evidence submitted by the Veteran in an October 2017 IHP, which suggests that tinnitus may be related to an URI, such as a cold, if the tinnitus develops after an URI and does not improve within one week. 3. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected residuals of a fractured, left radial head (minor). The Veteran’s claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH forearms on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the forearms cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups, (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 4. Schedule the Veteran for a Peripheral Nerves examination to determine the current severity of his service-connected residuals of a fractured, left radial head (minor). The examiner should provide a full description of any peripheral nerve disability related to the fractured, left redial head and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel