Citation Nr: 1806861 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-01 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable disability rating for allergic rhinitis from December 1, 2010 to February 21, 2013 and a rating in excess of 10 percent on and after February 22, 2013. 2. Entitlement to an initial compensable disability rating for migraine headaches from December 1, 2010 to September 23, 2012 and a rating in excess of 50 percent on and after September 24, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1986 to July 1992 and from November 1996 to November 2010, including service in the Persian Gulf War. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, but was certified to the Board by the RO in Nashville, Tennessee. In the September 2011 rating decision, in pertinent part, the Winston-Salem RO granted service connection for allergic rhinitis and migraine headaches and assigned noncompensable ratings for both, effective December 1, 2010. In a September 2013 rating decision, in pertinent part, the Nashville RO increased the Veteran's disability rating for allergic rhinitis to 10 percent, effective February 22, 2013, and increased the rating for migraine headaches to 50 percent, effective September 24, 2012. As these ratings do not provide the maximum benefits available for the full period on appeal, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. From December 1, 2010 to February 21, 2013, the Veteran's allergic rhinitis was not manifested by an obstruction greater than 50 percent of the nasal passages on both sides, complete obstruction on one side, or polyps. 2. On and after February 22, 2013, the Veteran's allergic rhinitis has not been manifested by polyps. 3. From December 1, 2010 to September 23, 2012, the Veteran's migraine headaches were not manifested by characteristic prostrating attacks. 4. On and after September 24, 2012, the Veteran has been assigned the maximum evaluation available for migraine headaches. CONCLUSIONS OF LAW 1. From December 1, 2010 to February 21, 2013, the criteria for a compensable disability rating for allergic rhinitis were not 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). 2. On and after February 22, 2013, the criteria for a disability rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.97, Diagnostic Code 6522. 3. From December 1, 2010 to September 23, 2012, the criteria for a compensable disability rating for migraine headaches were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8100 (2017). 4. On and after September 24, 2012, the criteria for a disability rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor her representative have raised any issue 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). 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). Given the nature of the present claims for higher initial evaluations, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 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. 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). Allergic Rhinitis The Veteran contends that her allergic rhinitis warrants higher ratings than those 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 December 1, 2010 to February 21, 2013, and a 10 percent rating on and after February 22, 2013. 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 July 2010. The Veteran reported constant sinus problems, including incapacitating episodes up to six times per year lasting for two weeks at a time. She reported that her symptoms included headaches, interference with breathing through the nose, hoarseness of the voice, pain, sinus drainage, and congestion. She denied any purulent discharge from the nose or crusting but reported that symptoms worsened with changes in seasons. She also denied any overall functional impairment from this condition. On examination, the Veteran's nose was not obstructed, her septum was not deviated, and there were no nasal polyps. The examiner did not find rhinitis on examination, but diagnosed allergic rhinitis. Based primarily on this examination report, the Winston-Salem RO assigned a noncompensable rating effective December 1, 2010, which is the day after the Veteran's separation from active duty service. VA treatment records from September 2012 note that the Veteran had no nasal polyps. On February 22, 2013, while this claim was on appeal, the Veteran submitted a claim for an increased rating for allergic or vasomotor rhinitis. In a statement submitted on the same date, the Veteran reported sinus headaches, pain, and swelling. The Veteran has been denied service connection for sinusitis in September 2011 and September 2013 rating decisions, has not appealed those denials, and that issue is not before the Board. A VA treatment record from March 2013 again notes that the Veteran had no nasal polyps. The Veteran was afforded an additional VA examination in August 2013. The Veteran reported that her symptoms included a runny nose, general itching, watery itching eyes, nasal congestion, sneezing, coughing, and postnasal drip. She reported persistent congestion, intensified by allergies. She also reported that she had missed fourteen days of work in the past year due to allergy and allergic rhinitis issues. On examination, the examiner found greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis, complete obstruction on one side due to rhinitis, and permanent hypertrophy of the nasal turbinates, but no nasal polyps. Based primarily on this examination report, the Nashville RO assigned a 10 percent rating effective February 22, 2013, the date of the claim for an increased rating. A VA treatment record from September 2013 again notes that the Veteran had no nasal polyps. The preponderance of the evidence described above shows that the Veteran's allergic rhinitis does not warrant a compensable rating prior to February 22, 2013. There is no evidence of a compensable degree of obstruction or of polyps prior to the August 2013 VA examination. The preponderance of the evidence described above also shows that the Veteran's allergic rhinitis does not warrant a rating in excess of 10 percent on or after February 22, 2013. 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 regarding her nasal symptoms, which she is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the competence of a lay person to provide a medical opinion must be determined on a case by case basis. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To the extent that the Veteran's lay statements can be construed as contentions that she had a compensable degree of obstruction prior to February 22, 2013, the Veteran in this case is not competent to make such a conclusion. The record does not show that the Veteran possesses the training or experience needed to evaluate the specific degree of a blockage. The probative value of the Veteran's assertions is low. The Veteran's argument in favor of an increased rating is that the Nashville RO erred by considering her claim for an increased rating as a new claim instead of one already on appeal and that, if the RO intended to grant an increase back to the claim date, the proper date was December 1, 2010, not February 22, 2013. The Board agrees with the Veteran and her representative that the RO erred by considering the February 22, 2013 claim form as a new claim. However, if the RO had not so erred, given the standard for staged ratings described above, the proper effective date for the increase would have been when the evidence of symptoms first warranted a different rating. Neither the Veteran nor her representative have contended that the Veteran's symptoms have been the same throughout the period on appeal. Because the first evidence of symptoms that would warrant a compensable rating was in the August 2013 VA examination report, if the Nashville RO had acknowledged that this issue was on appeal, there would have been no basis for an increase prior to August 2013 instead of February 2013. Any error by the Nashville RO in assigning an effective date for an increased rating for allergic rhinitis was therefore in the Veteran's favor and is not a ground for assigning an even earlier date. For these reasons, the Board finds that the Veteran's disability picture is most closely approximated by the ratings 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. Migraine Headaches The Veteran contends that her migraine headaches warrant higher ratings than those currently assigned. They are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine headaches, with a noncompensable rating from December 1, 2010 to September 23, 2012, and a 50 percent rating on and after September 24, 2012. Diagnostic Code 8100 provides for a 10 percent rating for characteristic prostrating attacks averaging once in two months over the last several months, a 30 percent rating for characteristic prostrating attacks occurring on an average of once a month over the last several months, and a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating." By way of reference, "prostration" is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary, 1531 (32nd ed. 2012). The Veteran was afforded a VA examination in July 2010. The Veteran reported sharp throbbing headaches along the left side of her head an average of twice a month for four hours at a time. She reported that, when these headaches occurred, she was still able to go to work but had difficulty performing daily activities. On examination, her cranial nerves were normal. The examiner diagnosed migraine headaches. Based primarily on this examination report, the Winston-Salem RO assigned a noncompensable rating effective December 1, 2010, which is the day after the Veteran's separation from active duty service. During a February 2011 VA treatment appointment, the Veteran reported that her migraines only occurred premenstrually or if she ate chocolate or cheese. On September 24, 2012, while this claim was on appeal, the Veteran submitted a claim for a total disability rating based on individual unemployability (TDIU) and indicated that migraines were among the disabilities preventing her from securing or following any substantially gainful occupation. In a February 2013 statement, the Veteran indicated that she did not wish to file a TDIU claim and requested that the September 2012 TDIU claim be withdrawn. The Veteran was afforded an additional VA examination in August 2013. The Veteran reported headaches near her temples, frontals, and eyes approximately eight times a month, lasting approximately two hours. She also reported that her symptoms during headaches included nausea and sensitivity to light and sound, including having to sit in the dark. On examination, the examiner found very frequent prostrating and prolonged attacks of migraine headache pain. The examiner noted that the Veteran was unable to function during headaches and had missed approximately 15 days of volunteer work. Based primarily on this examination report, the Nashville RO assigned a 50 percent rating effective September 24, 2012, the date of the withdrawn TDIU claim. The preponderance of the evidence described above shows that the Veteran's migraine headaches do not warrant a compensable rating prior to September 24, 2012. Although the July 2010 VA examiner did not specify whether the Veteran's migraine headaches were manifested by characteristic prostrating attacks, the Veteran's report during that examination that she remained able to go to work during her migraines indicates that they were not prostrating as defined above. The preponderance of the evidence described above also shows that the Veteran's migraine headaches do not warrant a rating in excess of 50 percent on or after September 24, 2012. As stated above, 50 percent is the maximum schedular rating for migraine headaches. The Board has also considered the Veteran's assertions regarding her migraine headaches, which she is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, prior to September 24, 2012, nothing in those statements can be construed as a contention that her migraine headaches were manifested by characteristic prostrating attacks. The Veteran's argument in favor of an increased rating is that the Nashville RO erred by not acknowledging that the issue of an increased rating for migraine headaches was already on appeal and that, if the RO intended to grant an increase back to the claim date, the proper date was December 1, 2010, not September 24, 2012. This issue is somewhat different from the rhinitis issue discussed above in that the September 24, 2012 TDIU claim form included new information in the Veteran's contention that her migraine headaches contributed to unemployability, which can be construed as a contention that they were "productive of severe economic inadaptability." Given the standard for staged ratings described above, the proper effective date for the increase would have been when the evidence of symptoms first warranted a different rating. Neither the Veteran nor her representative have contended that the Veteran's symptoms have been the same throughout the period on appeal. Because the first evidence of symptoms that would warrant a compensable rating was in the September 24, 2012 TDIU claim, if the Nashville RO had acknowledged that this issue was on appeal, there would still have been no basis for an increase prior to September 24, 2012. Any error by the Nashville RO in not acknowledging that this issue was already on appeal is therefore not a ground for assigning an earlier date. For these reasons, the Board finds that the Veteran's disability picture is most closely approximated by the ratings 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. Finally, a TDIU is not for consideration because the Veteran specifically withdrew that issue from consideration in a February 2013 statement. ORDER An initial compensable rating for allergic rhinitis from December 1, 2010 to February 21, 2013 is denied. A rating in excess of 10 percent for allergic rhinitis on and after February 22, 2013 is denied. An initial compensable rating for migraine headaches from December 1, 2010 to September 23, 2012 is denied. A rating in excess of 50 percent for migraine headaches on and after September 24, 2012 is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs