Citation Nr: 18146419 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-33 317 DATE: November 1, 2018 ORDER Entitlement to an initial compensable rating for allergic rhinitis headache is denied. Entitlement to an initial rating of 10 percent, but no higher, prior to November 13, 2017, for allergic rhinitis/sinusitis is granted. Entitlement to a compensable rating beginning November 13, 2017, for allergic rhinitis/sinusitis is denied. FINDINGS OF FACT 1. During the entire appeal period, the Veteran’s headaches are not manifested by prostrating attacks. 2. The evidence shows greater than 50 percent obstruction of the nasal passage on both sides with complete obstruction on one side; there is no evidence of nasal polyps at any time during the appeal. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.20, 4.124a, Diagnostic Code 8100. 2. The criteria for a rating of 10 percent, but no higher, prior to November 13, 2017, for allergic rhinitis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6522 (2018). 3. The criteria for a compensable rating beginning November 13, 2017, for allergic rhinitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6522 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from September 1985 to September 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In his July 2016 substantive appeal, the Veteran requested a Board hearing. However, correspondence dated in June 2017 reflects that he later withdrew the request. 38 C.F.R. § 20.704(e). The issues addressed herein are the only issues currently certified to the Board. Entitlement to an Initial Compensable Rating for Headaches The Veteran asserts that he should have higher ratings for his headaches as his symptoms are worse than those contemplated by the currently assigned rating. By way of background, the August 2015 rating decision granted service connection for allergic rhinitis headaches and assigned a noncompensable rating, effective March 17, 2007. The Veteran’s service-connected headaches are currently rated as noncompensable for the entire appeal period by analogy under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Because Diagnostic Code 8100 (which pertains to migraines) contemplates the Veteran’s symptoms of headaches and a closely analogous headache diagnosis, the Board finds that the Veteran is properly evaluated under Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is warranted for less frequent attacks than as follows. A 10 percent disability rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once in two months over the last several months. A 30 percent disability rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent disability rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Governing case law and regulations have not defined “prostrating.” For reference, the Board notes that “prostration” is defined as “extreme exhaustion or powerlessness.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d. ed. 2012). The use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991); Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for a higher rating to be assigned). Here, each of the criteria listed in the 50 percent rating must be met in order to warrant a 50 percent rating. Tatum v. Shinseki, 23 Vet. App. 152 (2009). A November 2011 VA treatment note shows that the Veteran was treated for sinus headaches. The Veteran reported that his headaches were exacerbated by changes in weather. He indicated that he used Flonase to treat his headaches and that it often offset his headaches in a reasonable time. At an April 2013 VA examination, the examiner reported that the Veteran experienced headaches associated with his sinusitis. The examiner indicated that the Veteran developed sinus and rhinitis that caused nasal obstruction and eye pressure pain, which was relieved by nasal afrin, Claritin, and aspirin. The examiner reported that the Veteran’s sinusitis and headaches usually resolved after 2 to 3 days. The Veteran reported experiencing pulsating and/or throbbing head pain, as well as pressure behind his eyes. The examiner reported that the Veteran did not experience prostrating attacks of migraine or non-migraine headache pain. The examiner noted that the Veteran’s headaches did not impact his ability to work, and no other pertinent findings were noted. At a December 2017 VA rhinitis examination, the examiner reported that the Veteran had not experienced any non-incapacitating episodes of sinusitis that resulted in headaches during the prior 12-month period. A review of the record shows that the Veteran also receives treatment for various disabilities at the VA Medical Center. However, a review of VA Medical Center treatment notes of record does not show any indication that the Veteran has symptoms of his headaches that are worse than those already reported by the April 2013 and December 2017 VA examiners. Thus, the Board finds that the Veteran is not entitled to an initial compensable rating for headaches. In this regard, there is no evidence of record showing that the Veteran’s headaches were productive of prostrating attacks. To that end, the April 2013 VA examination report indicated that the Veteran did not experienced prostrating attacks, and the Veteran’s extensive post-service medical records were silent for such symptoms. Moreover, the Veteran’s extensive post-service treatment records are primarily silent for complaints of any headaches. The Board acknowledges that the Veteran’s treatment records do also document complaints and history of headaches. However, such headaches were reported to resolve shortly after taking medication. Thus, the Board finds that the Veteran’s headaches are productive of less frequent attacks. Therefore, an initial compensable rating for headaches is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2018). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for headaches is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an Initial Compensable Rating for Allergic Rhinitis/Sinusitis The Veteran asserts that he should have a higher rating for his allergic rhinitis/sinusitis because his disability is worse than contemplated by the currently assigned rating. At the outset, the Board acknowledges that the Veteran is in receipt of separate, compensable ratings for, in pertinent part, sleep apnea, loss of sense of smell, loss of sense of taste, and a deviated septum. These disabilities and the ratings are not currently before the Board on appeal. Therefore, those ratings will not be discussed in this decision. In a May 2007 VA treatment note, the physician reported that both of the Veteran’s turbinates were hypertrophic. At an April 2013 VA examination, the examiner reported that the Veteran had broken his nose while boxing during active service. At that time, the Veteran underwent a closed reduction procedure and he gradually developed more nasal congestion and headaches following the incident. In August 2011, the Veteran underwent a septoplasty and bilateral inferior turbinate reduction. As a result, his nasal congestion was significantly improved. The examiner reported that the Veteran had experienced persistent nasal blockage and intermittent bilateral facial pain since his August 2009 CT scan of his sinuses. On examination, the Veteran did not experience greater than 50 percent obstruction of the nasal passage on both sides, and that there was no evidence of complete obstruction of either nasal passage. There was also no evidence of hypertrophy of nasal turbinates, nasal polyps, or a granulomatous condition. The examiner opined that the Veteran’s rhinitis did not impact his ability to work. At a December 2017 VA examination, the examiner reported that the Veteran’s chronic sinusitis and rhinitis had progressed since their respective onsets in 2007 and 1989. At the examination, the Veteran reported a burning sensation in his nose, running nose, and itchy eyes, which he treated with allergy medication. The examiner reported that the Veteran had been treated with antibiotics for his sinusitis approximately 2 times in the prior year. The examiner reported that the Veteran had not had any non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge within the prior 12-month period. The examiner indicated that the Veteran had not undergone sinus surgery, and that he had not experienced any incapacitating episodes of sinusitis that required bed rest and treatment prescribed by a physician within the prior 12-month period. On examination, the Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to his rhinitis, in addition to complete obstruction of the left nasal passage. The Veteran had permanent hypertrophy of the nasal turbinates, but there was no evidence of polyps. No other pertinent findings were noted, and the examiner indicated that the Veteran’s allergic rhinitis did not affect his ability to work. A review of the Veteran’s VA Medical Center treatment records does not show that the Veteran has complained of symptoms not reflected in the April 2013 or December 2017 VA examinations. Thus, the Board finds that the Veteran is entitled to a 10 percent rating for allergic rhinitis prior to November 13, 2017. In this regard, the Board affords the Veteran the benefit of the doubt that he experienced greater than 50 percent obstruction of his nasal passage on both sides throughout the period on appeal. To that end, the above-mentioned May 2007 VA treatment note indicates that the each of the Veteran’s nasal passages were obstructed. Moreover, various treatment records indicate nasal obstruction, although the level to which is not definitively addressed. However, the record indicates that the Veteran underwent a septoplasty in August 2011 in part to relieve nasal obstruction. The Board acknowledges that the April 2013 VA examiner did not find more than 50 percent obstruction of nasal passages on both sides. However, the Board has afforded the Veteran the benefit of the doubt that he had greater than 50 percent nasal passage obstruction throughout the majority of the period on appeal, as various treatment notes throughout the period on appeal show nasal passage obstruction, and the April 2013 VA examiner indicated that the Veteran had a history of nasal obstruction. As for the period beginning November 13, 2017, the Board finds that the Veteran is not entitled to a compensable disability rating. To that end, in a January 2018 rating decision, the RO granted the Veteran an increased rating of 10 percent for his deviated septum, effective November 13, 2017. The Veteran was awarded the 10 percent rating due to complete obstruction of his left nasal passage. Pursuant to Diagnostic Code 6502, a maximum 10 percent disability rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. Here, the assigned 10 percent disability rating under Diagnostic Code 6522 already contemplates nasal obstruction; hence, no separate disability rating for obstruction of the nasal passage can be assigned without violating the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14. No other diagnostic code is applicable. Moreover, the Board finds that the Veteran is not entitled to higher ratings at any point during the appeal. There is no evidence that the Veteran has nasal polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2018). Further, there is no evidence that the Veteran experienced any incapacitating episodes that required prolonged antibiotic treatment, or three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, Diagnostic Code 6514 (2018). J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel