Citation Nr: 20006972 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 04-33 068 DATE: January 28, 2020 ORDER A rating in excess of 10 percent for allergic rhinitis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Allergic rhinitis has not been manifested by nasal polyps. 2. The Veteran meets the schedular criteria for TDIU consideration and the evidence of record indicates that the Veteran was unable to maintain substantially gainful employment due to his service-connected bronchial asthma with pulmonary emphysema. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 3.321, 4.3, 4.97, Diagnostic Code 6522. 2. Entitlement to TDIU is moot. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes on appeal from a September 1980 rating decision. A detailed procedural history was set forth in the Board’s June 2015 decision and no judicial purpose would be served by repeating it here. The June 2015 Board decision remanded the issues of an increased rating for allergic rhinitis and entitlement to TDIU for a VA examination and to obtain VA treatment records. These matters now return to the Board for appellate consideration. The Board notes that the Veteran has on several occasions submitted medical releases for L.B. Community Hospital, Dr. AP, and Dr. RG; with the latest submissions occurring in October 2018. However, VA has already attempted to obtain these records and determined that they are unavailable. VA records management provided in a July 2010 memo that Dr. AP and Dr. RG were both deceased and File Maintenance could not produce their records. In October 2014, L.B. Community Hospital provided a negative response indicating that the Veteran was not a patient at that facility. Consequently, despite the Veteran resubmitting these releases in October 2018, no purpose would be served by trying to obtain these records because VA has already determined that these records are unavailable. 1. Allergic Rhinitis The Veteran seeks a higher rating for his service-connected allergic rhinitis. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s allergic rhinitis is rated as 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522. Under DC 6522, a 10 percent rating is assigned for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is assigned for allergic or vasomotor rhinitis with polyps. The Board finds that the maximum 30 percent rating for allergic rhinitis is not warranted because the record is not suggestive that the Veteran’s allergic rhinitis was manifested by polyps. The August 1980 VA examination inspected the Veteran’s nose and did not find any nasal polyps. The examiner noted that the nasal membranes were slightly pale and edematous with a good nasal airway. The April 1981 VA examination did not show evidence of nasal polyps. The examiner noted that there was slight hyperemia of the nasal mucosa and that the mucosa appeared very dry. The examiner noted that the nasal passages were slightly obstructed, but breathing was adequate. Records from the 1980s indicates that the Veteran was seen by VA and received desensitization shots for allergic rhinitis. There is no indication from these records that the allergic rhinitis was manifested by nasal polyps. Of note, a November 1981 VA allergy consult was negative for nasal polyps; the nasal membrane was pale and moderately edematous. VA treatment notes up to October 1982 continued to report that the nasal membrane was pale and mildly edematous, and also noted that the nasal antral window was good. A March1 983 VA treatment note reported that the nasal membrane was slightly red and edematous, but the nasal antral widow was good. A September 1983 VA treatment note reported that the nasal membrane was slightly red and edematous, and the nasal antral widow was fair. VA treatment records continued to show no nasal polyps. See, e.g., VA Treatment Records June 2000, November 2000, May 2003, December 2003, July 2015. Notably, an August 2015 VA CT of the paranasal sinuses was unremarkable and noted no evidence of mucosal thickening., air fluid levels or expansile masses. The April 2017 VA examination found no obstruction of the nasal passages, and no nasal polyps or other granulomatous conditions. The examiner indicated that the Veteran’s condition was stable. The examiner also opined that the Veteran’s allergic rhinitis did not impact his ability to work. Consequently, the evidence of record documents an absence of polyps and therefore a rating in excess of 10 percent is not warranted at any time. The Board has considered the Veteran’s lay statements, including a list of medications for allergic rhinitis (antihistamines, injections and prescription nasal sprays). While the Veteran’s prescription medications have been documented in the record, DC 6522 specifically requires the presence of polyps to warrant a 30 percent disability rating. Accordingly, it is not appropriate to assign a higher rating in the absence of nasal polyps. The Veteran has not presented or identified any contrary medical treatments or medical opinion evidence that supports that nasal polyps were present. To the extent obstruction of the nasal passages has been noted in the record, the Veteran is adequately compensated by the 10 percent rating which directly contemplates this symptomology. To the extent that the Veteran argues his symptomatology is more severe than shown on examination, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions, as the examiners have the requisite training and expertise to ascertain the presence of a nasal obstruction and polyps. Moreover, the August 2015 CT of the paranasal sinus cavity was absent for any findings that would support the maximum 30 percent disability rating. The Board has considered the Veteran’s symptom complaints in the record, to include seasonal allergies, runny nose and nasal congestion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the clinical findings of the VA examiners and treating providers did not find symptomology necessary for a 30 percent rating. To the extent the Veteran has argued events of respiratory failure, that is not related to allergic rhinitis. The Board’s focus is on obstructions of the paranasal sinuses and nasal cavity and not the Veteran’s pulmonary functioning when rating allergic rhinitis. See 38 C.F.R. § 4.97, Diagnostic Code 6522. As the evidence shows that the Veteran’s allergic rhinitis is not manifested by nasal polyps, the criteria for a maximum 30 percent rating are not satisfied. Because the preponderance of the evidence weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. TDIU The June 2015 Board decision found the issue of TDIU reasonably raised by the record as to both the service-connected allergic rhinitis and bronchial asthma with pulmonary emphysema. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s last employer reported that he last worked in May 2004 as a store clerk/key manager. As of May 2004, allergic rhinitis is rated as 10 percent disabling, and bronchial asthma with pulmonary emphysema is rated as 100 percent disabling. Consequently, the Veteran meets the schedular criteria for TDIU set forth in 38 C.F.R. § 4.16(a). However, entitlement to TDIU has been rendered moot by the award of a 100 percent schedular rating for bronchial asthma with pulmonary emphysema. See Bradley v. Peake, 22 Vet. App. 280 (2008). The U.S. Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent disability rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)). There is no evidence that TDIU may be awarded independently of the Veteran’s bronchial asthma with pulmonary emphysema, which has been rated as 100 percent disabling since June 21, 2000. The Veteran’s only other service-connected disability is allergic rhinitis which, as provided above, is 10 percent disabling. The August 1980 and April 1981 VA examinations are not suggestive that allergic rhinitis resulted in total unemployability. Furthermore, the April 2017 VA examination found that the Veteran’s allergic rhinitis did not impact his ability to work and did not render him unemployable. The examiner explained that even though allergic rhinitis imposes economic burdens due to reduced work productivity, clinician visits, expense of medications, and cost of treating related conditions; it does not render a person unable to obtain or maintain substantially gainful employment. In contrast, the November 2000 VA examination reported that the Veteran had missed a lot of work because of his breathing problems due to bronchial asthma that had progressed to pulmonary emphysema. Then, the June 2003 VA examination reported that the Veteran’s bronchial asthma with pulmonary disease resulted in significant functional impairment that interfered with his ability to perform job and daily activities. The June 2003 examiner specifically stated that the Veteran was totally and permanently disabled due to bronchial asthma with pulmonary disease. (Continued on the next page)   The Board has considered the Veteran’s assertions that he is unable to work as a result of his service-connected disabilities. However, the Veteran does not possess expertise in medical or vocational matters and, thus, cannot competently opine on the question of whether the symptoms solely from his allergic rhinitis actually rendered him unemployable. Consequently, the weight of competent medical evidence indicates that the Veteran’s unemployability stems from the service-connected bronchial asthma with pulmonary edema, and not his allergic rhinitis. Therefore, the issue of entitlement to TDIU is moot and the criteria for an award of SMC have not been met. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AD The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.