Citation Nr: 18148672 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-37 776 DATE: November 8, 2018 ORDER Service connection for sinusitis is denied. An effective date earlier than September 28, 2015 for the Veteran’s service-connected migraine headaches is denied. An effective date earlier than September 28, 2015 for the Veteran’s service-connected allergic rhinitis is denied. An increased rating of more than 10 percent from September 28, 2015 and continuing thereafter for the Veteran’s service-connected allergic rhinitis is denied. REMANDED The issue of an increased rating more than 30 percent from September 28, 2015 and continuing thereafter for migraine headaches is remanded for consideration of an extraschedular evaluation. The issue of an increased rating more than 10 percent from September 28, 2015 to June 22, 2017 and more than 20 percent from June 23, 2017 and continuing thereafter for a low back strain is remanded for consideration of an extraschedular evaluation. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of sinusitis. 2. The Veteran’s increased rating claim for her service-connected migraine headaches was received by VA on September 28, 2015. 3. The Veteran’s increased rating claim for her service-connected allergic rhinitis was received by VA on September 28, 2015. 4. The Veteran’s allergic rhinitis was without polyps, but greater than 50 percent obstruction of both nasal passages. CONCLUSIONS OF LAW 1. The criteria to establish service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303(d), 3.309(a) (2017). 2. The criteria to establish an effective date earlier than September 28, 2015 for migraine headaches have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria to establish an effective date earlier than September 28, 2015 for allergic rhinitis have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria to establish an increased rating more than 10 percent for the entirety of the rating period on appeal for allergic rhinitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code (DC) 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from April 1975 to October 1996, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 and November 2015 rating decision of the Waco, Texas Regional Office (RO). Service Connection Sinusitis Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Sinusitis is not a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) for this claim do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service treatment records (STRs) reveal several reports and diagnoses of sinusitis: October 1980 – the Veteran reported experiencing a head cold and a sore throat and was diagnosed with the common cold and early sinusitis; June 1984 – the Veteran reported experiencing sinus congestion and was diagnosed with allergic syndrome; September 1988 – the Veteran reported experiencing an upper respiratory infection and was diagnosed with sinusitis; May 1991 – the Veteran reported experiencing coughing, nasal drainage and watery eyes and was diagnosed with allergies and November 1992 – the Veteran reported experiencing congestion, itchy throat, runny nose and a cold and was diagnosed with an upper respiratory infection secondary to sinusitis. In the Veteran’s May 1996 pre-separation medical examination report, no sinus abnormalities were noted. In her May 1996 pre-separation medical history report, the Veteran answered in the negative to the question of whether she then had, or once had sinusitis. In November 2014, the Veteran was afforded a VA examination. The examiner opined that the Veteran did not have sinusitis because a September 2013 VA computed tomography (CT) scan revealed no chronic sinusitis. The examiner indicated that the Veteran’s in-service diagnoses of sinusitis were presumptive or inferred diagnoses because they were not documented by x-ray or CT scan and her upper respiratory infection resolved from antibiotic treatment. The VA examiner’s medical opinion is highly probative because he personally examined the Veteran and based his opinion on the Veteran’s relevant medical history. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295 (2008). \ Any current diagnoses? In a February 2015 VA treatment record, the Veteran reported experiencing coughs and congestion. She was diagnosed with allergic rhinitis and “possibly sinusitis.” This medical diagnosis of sinusitis is of low probative value because it speculates on the issue of whether the Veteran has a current disorder of sinusitis. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a medical opinion is speculative when it uses equivocal language such as “may well be,” “could,” or “might”); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). A preponderance of the evidence is against a finding that the Veteran has a current disorder of sinusitis. The VA examiner opined that the Veteran did not have sinusitis because a CT scan revealed no chronic sinusitis. In addition, the VA examiner indicated that the in-service diagnoses of sinusitis were merely presumptive or inferred diagnoses. Significantly, no competent medical examiner has diagnosed the Veteran with a non-speculative diagnosis of sinusitis. Therefore, service connection is not warranted and the claim is denied. Earlier Effective Dates Migraine headaches and allergic rhinitis The Veteran contends that she is entitled to an effective date earlier than September 28, 2015 for her service-connected migraine headaches and allergic rhinitis rated at 30 percent and 10 percent, respectively. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a) (2012). In a February 1997 rating decision, the RO granted service connection and assigned a noncompensable rating and a 10 percent rating effective November 1, 1996 for the Veteran’s allergic rhinitis and migraine headaches, respectively. The Veteran submitted a VA 21-526EZ application for disability compensation on September 28, 2015 and requested, in relevant part, increased ratings for her service-connected migraine headaches and allergic rhinitis. In the November 2015 rating decision, the RO granted a 10 percent and 30 percent rating effective September 28, 2015 for the Veteran’s allergic rhinitis and migraine headaches, respectively. A preponderance of the evidence is against a finding of an effective date earlier than September 28, 2015 for allergic rhinitis and migraine headaches. From the date of the notification of the February 1997 rating decision to when the Veteran submitted her September 2015 increased rating claims, the evidence does not show that the Veteran submitted any increased rating claims for her allergic rhinitis or migraine headaches. Therefore, an earlier effective date is not warranted and the claims are denied. Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Allergic rhinitis The Veteran’s allergic rhinitis is rated as noncompensable rating from November 1, 1996 to September 27, 2015 and a 10 percent rating from September 28, 2015 and continuing thereafter under DC 6522. The rating period on appeal is from September 28, 2015, the receipt date of the Veteran’s increased rating claim. DC 6522 pertains to allergic or vasomotor rhinitis. A 10 percent rating is assigned when there are no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, DC 6522 (2017). A maximum 30 percent rating is assigned when there are polyps as well. Id. In October 2015, the Veteran was afforded a VA examination. The Veteran reported that her allergic rhinitis had worsened. She treats her rhinitis with medication and nasal spray. The examiner indicated that the Veteran’s allergic rhinitis was manifested by greater than 50 percent obstruction on both sides of her nasal passage due to the rhinitis. The examiner also indicated that the Veteran did not have complete obstruction on one side, permanent hypertrophy of nasal turbinates, nasal polyps or any granulomatous conditions. It was also noted that the Veteran had no larynx or pharynx conditions, deviated septum, tumors or neoplasms. There were no other pertinent physical findings. The examiner also indicated that the Veteran’s allergic rhinitis did not impact her ability to work. In June 2017, the Veteran was afforded another VA examination. The Veteran reported experiencing sinus drainage and trouble coughing up mucus. She also reported experiencing trouble wearing her CPAP mask due to post-nasal drip and coughing at night. She treats her rhinitis with medication and nasal spray. The examiner indicated that the Veteran’s allergic rhinitis was manifested by greater than 50 percent obstruction on both sides of her nasal passage due to the rhinitis. The examiner also indicated that the Veteran did not have complete obstruction on both sides, permanent hypertrophy of nasal turbinates, nasal polyps or any granulomatous conditions. There were no scars or other pertinent physical findings. The examiner also indicated that the Veteran’s allergic rhinitis did not impact her ability to work. A preponderance of the evidence is against a finding of an increased rating more than 10 percent for the entirety of the rating period on appeal for the Veteran’s allergic rhinitis. Both VA examiners indicated that due to the Veteran’s allergic rhinitis, she experienced greater than 50 percent obstruction on both sides of her nasal passage without nasal polyps. Significantly, no competent medical examiner has indicated that the Veteran’s allergic rhinitis was manifested with polyps. Therefore, an increased rating is not warranted and the claim is denied. REASONS FOR REMAND The Veteran contends that her migraine headaches and low back strain are of such severity that an extraschedular evaluation is warranted because the underlying service-connected disorders affect the Veteran’s employment in ways not contemplated by the rating schedule. The October 2015 VA examiner opined that although the Veteran is currently employed as a human resources manager, her migraine headaches and low back strain impacts her ability to work because the Veteran has trouble concentrating due to the migraine headaches and trouble with prolonged sitting and standing due to the low back strain. The issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran’s current employability status is not clear from the record. The matter is therefore remanded to the RO for referral to the Director of Compensation Service for extraschedular consideration and for the following actions: 1. Ask the Veteran if she has any further medical or non-medical evidence that has not already been obtained by VA concerning her migraine headaches and low back strain. Assist the Veteran in obtaining the evidence if warranted. 2. Conduct an updated medical examination of the Veteran’s service-connected back disability. Ensure that the examiner has the record for review and that the examiner reports all critical findings, including but not limited to the functional loss and the impact of the back disorder on the Veteran’s employment AND WHETHER THE VETERAN HAS FLARE-UPS OF HER BACK DISORDER AND LIMITATIONS DURING THOSE FLARE UPS. 3. Ask the Veteran to provide information as to her employability status. The Veteran may submit any evidence, argument or other information to support her claim that her service-connected disorders render her unemployable. 4. Review the record, and conduct any appropriate medical development. Then refer the claim to the Director of Compensation Service for extraschedular consideration. 5. Provide any further appropriate assistance and readjudicate the claims. If appropriate, furnish the Veteran a Supplemental Statement of the Case. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel