Citation Nr: 18147535 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-49 122 DATE: November 6, 2018 ORDER An initial rating of more than 10 percent for allergic rhinitis since October 15, 2013, is denied. An initial rating of more than 60 percent for asthma since October 15, 2013, is denied. An initial rating of 50 percent for allergy-induced headaches since October 15, 2013 is granted. FINDINGS OF FACT 1. The Veteran did not have polyps in the nasal passages at any point during the period on appeal. 2. The Veteran’s asthma caused FEV-1 of 85 percent predicted, FVC of 86 percent predicted, and FEV-1/FVC of 98 percent predicted; required 4 or more intermittent courses of systemic corticosteroids in the prior 12 months; attacks or exacerbations required physician visits less frequently than monthly for treatment; caused difficulty breathing when pollen counts were high; and required use of inhalational corticosteroids multiple times per day. 3. The Veteran’s headaches required the use of prescription medication; caused pulsating or throbbing head pain, pain localized to one side of the head, pain which worsened with physical activity, pain in the back of the neck and forehead, nausea and vomiting, sensitivity to light, sensitivity to sound, and changes in vision; prevented her from working in brightly lit areas; caused prostrating attacks more frequently than once per month; and required the Veteran to miss work 2 to 3 times per month. 4. The Veteran’s headaches were productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating of more than 10 percent, since October 15, 2013, for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.97, Diagnostic Code 6522 (2017). 2. The criteria for a rating of more than 60 percent, since October 15, 2013, for asthma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.96, 4.97, Diagnostic Code 6602 (2017). 3. The criteria for a rating of 50 percent, since October 15, 2013, for allergy induced headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from November 1996 to July 2007. The Veteran has been in receipt of a 100 percent schedular rating since August 16, 2016. 1. Entitlement to an initial rating of more than 10 percent for allergic rhinitis since October 15, 2013. Rhinitis is rated according to 38 C.F.R. § 4.97, Diagnostic Code 6522. A 10 percent rating is warranted for rhinitis without polyps but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. In August 2014, the Veteran was afforded a VA examination. The examiner indicated that the Veteran had a greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was not complete obstruction on one side, permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous conditions. The diagnosis was allergic rhinitis. On the September 2015 notice of disagreement (NOD), the Veteran reported that she was prescribed allergy medication for the rhinitis. On the October 2016 VA Form 9, the Veteran indicated that the August 2014 VA examiner had not checked for polyps in the nasal passages. The weight of the evidence shows that the Veteran did not have nasal polyps at any point during the period on appeal. Given this fact, the Board finds that the current 10 percent rating adequately reflects the Veteran’s symptoms. 38 C.F.R. §§ 4.3, 4.7. With regard to the Veteran’s report that the August 2014 VA examiner did not check her for polyps, the Board finds this report not to be credible. The VA examiner expressly indicated on the examination report that the Veteran did not have polyps, and indicated that the Veteran had other symptoms. There is no reason to believe that the examiner would have expressly indicated that the Veteran did not have polyps without examining the Veteran for polyps. The Board finds it more likely that the Veteran would have been unaware that, in the course of the examination, the examiner checked for polyps and did not find any. Therefore, the Board finds that the August 2014 VA examination and report are adequate. 2. Entitlement to an initial rating of more than 60 percent for asthma since October 15, 2013. Under 38 C.F.R. § 4.96(d), pulmonary function tests (PFT’s) are required to evaluate the conditions listed in diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845 except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria. (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed. (iii) When there have been one or more episodes of acute respiratory failure. (iv) When outpatient oxygen therapy is required. If the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. When the PFT’s are not consistent with clinical findings, evaluate based on the PFT’s unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Post-bronchodilator studies are required when PFT’s are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. When evaluating based on PFT’s, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre bronchodilator values for rating purposes. When there is a disparity between the results of different PFT’s (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. If the FEV-1 and the FVC are both greater than 100 percent, do not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96. Asthma is rated according to 38 C.F.R § 4.97, Diagnostic Code 6602. A 10 percent rating is warranted 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 warranted 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 warranted for 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 three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. A note to diagnostic code 6602 states that, “in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record.” 38 C.F.R. § 4.97, Diagnostic Code 6602. At a VA examination in August 2014, the Veteran reported symptoms of chest pain, trouble catching her breath, and tightness in the chest. The VA examiner indicated that the Veteran’s asthma required four or more intermittent courses of systemic corticosteroids in the prior 12 months, and required intermittent inhalational bronchodilator and anti inflammatory medication, but did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The VA examiner indicated that the Veteran’s asthma attacks or exacerbations required physician visits less frequently than monthly for treatment. A chest X-ray study was within normal limits. Pre bronchodilator PFT’s indicated FEV-1 of 85 percent predicted, FVC of 86 percent predicted, and FEV-1/FVC of 98 percent predicted. The examiner indicated that FEV 1/FVC most accurately reflected the Veteran’s pulmonary function. Post bronchodilator, DLCO, and exercise testing were not completed as they were not indicated for the Veteran’s disorder. The VA examiner indicated that the Veteran’s asthma impacted the ability to work because of difficulty breathing when pollen counts were high. On the September 2015 NOD, the Veteran reported that she was taking a daily oral corticosteroid to control asthma. The Veteran reported using an inhaler, constant shortness of breath and chest tightening, and asthma attacks averaging 3 to 4 times per month. On the October 2016 VA Form 9, the Veteran reported using a high-dose corticosteroid inhaler twice daily to treat asthma. An August 2017 VA treatment record indicates that the Veteran was using albuterol and mometasone oral inhalers to treat asthma. During the period on appeal, the evidence shows that the service-connected asthma caused FEV-1 of 85 percent predicted, FVC of 86 percent predicted, and FEV-1/FVC of 98 percent predicted; required 4 or more intermittent courses of systemic corticosteroids in the prior 12 months; attacks or exacerbations required physician visits less frequently than monthly for treatment; caused difficulty breathing when pollen counts were high; and required use of inhalational corticosteroids multiple times per day. Given these facts, the Board finds that the current 60 percent rating adequately reflects the severity of the symptoms and functional impairment during the period on appeal. 38 C.F.R. §§ 4.3, 4.7. A 100 percent rating is not warranted as the Veteran did not have FEV-1 of less than 40-percent predicted, or; FEV-1/FVC of less than 40 percent, or; more than one attack per week with episodes of respiratory failure; and she did not require the daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. The Board has considered the Veteran’s report on the September 2015 NOD that she was taking a daily oral corticosteroid to control asthma. The August 2014 VA examination report, October 2016 VA Form 9, and August 2017 VA treatment record all indicate that the Veteran was taking inhalational corticosteroids through the use of oral inhalers. The Board finds that the Veteran was taking a daily corticosteroid but that it was inhalational, not systemic; therefore, a 100 percent rating is not warranted. 3. Entitlement to an initial rating of more than 30 percent for allergy-induced headaches since October 15, 2013. Headaches are rated according to diagnostic code 8100. A 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over last several months. A noncompensable rating is warranted for headaches with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In August 2014, the Veteran was afforded a VA examination. The diagnosis was allergy-induced headaches. The Veteran took Tylenol and 800 milligrams of Motrin for her headaches, reported that headaches caused pulsating or throbbing head pain, pain localized to one side of the head, pain which worsened with physical activity, pain in the back of the neck and forehead, nausea, sensitivity to light, sensitivity to sound, and changes in vision. The Veteran reported that head pain typically lasted 1 to 2 days and typically resided in the back of the neck, she had prostrating attacks of migraine headache pain once every month, and prostrating attacks of non-migraine headache pain more frequently than once per month. On the September 2015 NOD, the Veteran reported constant headaches that caused sensitivity to light and sound, prevented her from working in brightly lit areas, caused nausea and vomiting, and required the use of an over-the-counter antihistamine medication. On the October 2016 VA Form 9, the Veteran reported severe headaches that occurred 2 to 3 times per month that caused her to miss work. An August 2017 VA treatment record indicates that the Veteran was prescribed Fioricet for headaches. During the period on appeal, the Veteran’s headaches required the use of prescription medication; caused pulsating or throbbing head pain, pain localized to one side of the head, pain which worsened with physical activity, pain in the back of the neck and forehead, nausea and vomiting, sensitivity to light, sensitivity to sound, and changes in vision; prevented her from working in brightly lit areas; caused prostrating attacks more frequently than once per month; and required the Veteran to miss work 2 to 3 times per month. Given that the Veteran had prostrating attacks more frequently than once per month, could not work in brightly lit areas, and had to miss work 2 to 3 times per month, the Board finds that the Veteran’s headaches are productive of impairment more nearly approximating severe economic inadaptability to warrant a 50 percent rating. This is the highest schedular rating available for this disability. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel