Citation Nr: 18156938 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 18-34 501 DATE: December 11, 2018 ORDER Service connection for chronic sinusitis is granted. Service connection for headaches is granted. Entitlement to a disability rating in excess of 10 percent for allergic rhinitis is denied. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s chronic sinusitis is etiologically related to his service-connected allergic rhinitis. 2. The probative evidence of record is at least in equipoise as to whether the Veteran’s headaches are etiologically related to his service-connected chronic sinusitis. 3. During the period on appeal, the Veteran’s allergic rhinitis has not been manifested by polyps. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for chronic sinusitis have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for headaches have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. During the period on appeal, the criteria for a disability rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.97, Diagnostic Code 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from June 1956 to May 1961. These matters are on appeal from an August 2016 rating decision. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Chronic Sinusitis The Veteran has a current diagnosis of chronic sinusitis, which he contends is etiologically related to his service-connected allergic rhinitis. The Veteran was afforded a VA examination in June 2016. The examiner noted that the Veteran was diagnosed with chronic sinusitis in 2006 and that he had been treated for multiple episodes of sinusitis. The examiner did not express an opinion as to whether an etiological relationship between the Veteran’s sinusitis and rhinitis was at least as likely as not, instead opining that it “cannot be concluded form [sic] the available records that the Allergic rhinitis is the cause of the recurrent sinusitis.” Whether a relationship could be conclusively established was not the question before the examiner. In November 2018, a Veterans Health Administration (VHA) otorhinolaryngologist reviewed the available medical records. The VHA otorhinolaryngologist noted that “anecdotal evidence suggests that allergy may contribute to rhinosinusitis, but there is no experimental data supporting this notion.” The VHA otorhinolaryngologist also noted other factors in the Veteran’s history likely to contribute to chronic rhinosinusitis. However, the VHA otorhinolaryngologist concluded that the Veteran’s service-connected allergic rhinitis might be the “tipping point” and that it was therefore more likely than not that his allergies contributed to or aggravated his recurrent rhinosinusitis. Of the opinions of record with regard to the etiology of the Veteran’s chronic sinusitis, the VHA otorhinolaryngologist’s opinion is the only one that addressed the issue of whether an etiological relationship is at least as likely as not, as opposed to whether one has been conclusively established. It also provides the most thorough and persuasive rationale. For this reason, the Board finds that the VHA otorhinolaryngologist’s opinion, which is favorable to the Veteran’s claim, is the most probative evidence of record with regard to the etiology of the Veteran’s chronic sinusitis. In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s chronic sinusitis was contributed to or aggravated by his service-connected allergic rhinitis. Accordingly, the Board finds that granting service connection for chronic sinusitis is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). 2. Headaches The Veteran’s private treatment records note his reports of headaches on multiple occasions. A May 2013 private treatment record characterized the Veteran’s headaches as persistent sinus headaches. In a June 2018 statement, the Veteran reported that his headaches have continued into the period on appeal. The Veteran’s private treatment provider has characterized the Veteran’s headaches as sinus headaches and the record contains no other opinion as to their etiology. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s headaches were caused by his service-connected chronic sinusitis. Accordingly, the Board finds that granting service connection for headaches as secondary to the Veteran’s service-connected chronic sinusitis is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 3. Allergic Rhinitis The Veteran contends that his allergic rhinitis warrants a higher rating than that currently assigned. It is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522, for allergic or vasomotor rhinitis, with a noncompensable rating from May 12, 1961 to March 1, 2016 and a 10 percent rating on and after March 2, 2016. VA received the Veteran’s claim for an increased rating on March 2, 2016. Diagnostic Code 6522 provides for a 10 percent rating for allergic or vasomotor rhinitis without polyps, but with a greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side, and a 30 percent rating for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. The Veteran was afforded a VA examination in June 2016. The Veteran reported nasal congestion interfering with his breathing, with increased symptoms in the summer months. On examination, there was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, but no complete obstruction on either side. There was no permanent hypertrophy of the nasal turbinates. There were no nasal polyps. Based primarily on this examination report, VA assigned a 10 percent rating effective March 2, 2016, the date of the claim for an increased rating. In a June 2016 statement, the Veteran reported an adverse reaction to allergy treatment at a VA facility in 1969. He also contended that his disability rating should be higher because he had frequently visited a VA facility to check the status of his appeal. The Veteran also submitted a statement by a witness to his adverse reaction to treatment in 1969, who also commented generally as to his “discomfort he has had over the years.” The preponderance of the evidence described above shows that the Veteran’s allergic rhinitis does not warrant a rating in excess of 10 percent on or after March 2, 2016. There is no evidence of polyps, which are the sole criterion for a 30 percent rating. The Board has also considered the Veteran’s assertions and those of the other lay witness regarding his nasal symptoms, which they are competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, nothing in those statements constitutes a contention that the symptoms of the Veteran’s allergic rhinitis have included nasal polyps at any point during the period on appeal. The Board acknowledges the Veteran’s contentions regarding his adverse reaction to treatment in 1969, decades before the period on appeal, and the extent of his efforts to monitor the status of this appeal. However, neither of those provide a basis for the Board to grant an increased rating. The only basis the rating schedule provides for a rating in excess of 10 percent for allergic rhinitis is the presence of nasal polyps during the period on appeal, which began on March 2, 2016. For these reasons, the Board finds that the Veteran’s disability picture is most closely approximated by the rating already in effect. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel