Citation Nr: 20032579 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 17-02 111 DATE: May 8, 2020 ORDER Subject to the applicable regulations concerning the payment of monetary benefits, entitlement to a 30 percent initial evaluation, but no higher, for service-connected headaches of an unspecified nature (hereinafter, service-connected headache disability) prior to January 26, 2015, is granted, Subject to the applicable regulations concerning the payment of monetary benefits, entitlement to a 10 percent initial evaluation for service-connected seasonal allergic rhinitis prior to January 26, 2015, is granted. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran’s service-connected headache disability, without consideration of the effects of medication for symptoms management, was productive of characteristic prostrating attacks occurring once per week, but without economic inadaptability, from October 1, 2010, to January 25, 2015. 2. The most probative evidence reflects that the Veteran’s service-connected seasonal allergic rhinitis, without consideration of the effects of medication for symptoms management, was productive of greater than 50 percent obstruction of nasal passage on both sides, but without nasal polyps, from October 1, 2010, to January 25, 2015. CONCLUSIONS OF LAW 1. The criteria for a 30 percent initial evaluation, but no higher, for the Veteran’s service-connected headache disability were met from October 1, 2010, to January 25, 2015. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102 ,4.1, 4.3, 4.124a, Diagnostic Code 8100 (2018). 2. The criteria for a 10 percent initial evaluation, but no higher, for the Veteran’s service-connected seasonal allergic rhinitis were met from October 1, 2010, to January 25, 2015. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102 ,4.1, 4.3, 4.97, Diagnostic Code 6522 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from November 1988 to September 2010, to include service in the Southwest Asia theater of operations during the Persian Gulf War. He is in receipt of a Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The issues on appeal were previously before the Board in November 2018 and December 2019, at which times they were remanded to the AOJ for procedural development concerning an intertwined matter. The Board’s prior remand directives have been substantially completed, and the Veteran’s appealed issues have been returned to the Board for further appellate consideration. Characterization of the issues on appeal The issues on appeal were initially framed by the AOJ and the Board as seeking effective dates earlier than January 26, 2015, for the assignment of 10 and 30 percent evaluation for the Veteran’s service-connected seasonal allergic rhinitis and headache disability, respectively. As noted by the Board in the November 2018 and December 2019 remands, the Veteran expanded these issues to include whether a May 2011 rating decision which established service connection and assigned noncompensable initial evaluations for these disabilities contained Clear and Unmistakable Error (CUE). This theory of entitlement regarding both issues was adjudicated by the AOJ in the first instance in a February 2020 Supplemental Statement of the Case (SSOC), and the Veteran’s appealed issues were returned to the Board. As such, the Board prior remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In light of above, the Veteran’s appeal before the Board is seeking effective dates earlier than January 26, 2015, for the assignment of 10 and 30 percent evaluation for the Veteran’s service-connected seasonal allergic rhinitis and headache disability, respectively, to include whether the May 2011 rating decision contained CUE. However, for the reasons expressed below, the Board concludes that consideration of whether the May 2011 rating decision contained CUE is neither proper nor necessary. Pertinently, after the May 2011 rating decision that established service connection for these disabilities and assigned noncompensable initial evaluations for such became final, the Veteran submitted service department records that were extant, but not associated with the file, at the time of the May 2011 rating decision. Under 38 C.F.R. § 3.156 (c), the finality of the May 2011 rating decision can be overcome if such service department records are relevant to the issues decided, therein. To this point, the Board observes that the records submitted by the Veteran include documentation of the Veteran’s headache and rhinitis symptoms contemporaneous to his separation from active duty. As the issue at hand regarding the initial evaluations assigned for these service-connected disabilities is dependent on the Veteran’s symptoms after his separation from active duty, and thus, these records are, arguably, not relevant to the Veteran’s appeal. Notwithstanding the above, as noted by the Board in the prior remands, the Veteran’s initial claim for benefits and the August 2010 VA examinations, upon which the AOJ’s initial evaluations were assigned in the May 2011 rating decision, took place prior to the Veteran’s separation from active duty as part of VA’s Benefits Delivery at Discharge (BDD) program. As such, it follows that service treatment records contemporaneous to the pre-discharge August 2010 VA examinations are relevant to the assignment of the initial evaluations for these service-connected disabilities under the provisions of 38 C.F.R. § 3.156 (c). Accordingly, in the limited facts of this case, the Board concludes that the service treatment records submitted by the Veteran after the May 2011 rating decision are relevant to the AOJ’s assignment of initial noncompensable evaluation for these service-connected disabilities. As such, the finality of the May 2011 rating decision is vitiated. Such a finding leads to a conclusion that the October 2015 rating decision was not an initial adjudication of the Veteran’s January 2015 claim for increased evaluations for these service-connected disabilities, but rather, was a reconsideration of the Veteran’s initial claim seeking to establish service connection for such. In light of above, the issues on appeal have been recharacterized as seeking initial compensable evaluations for these disabilities prior to January 26, 2015, without the need to consider the laws pertinent to earlier effective dates and/or revision of a final rating decision due to CUE. 1. Entitlement to an initial compensable evaluation for a service-connected headache disability prior to January 26, 2015 2. Entitlement to an initial compensable evaluation for service-connected seasonal allergic rhinitis prior to January 26, 2015 Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis As described above, the Veteran’s initial appeal to the Board has been recharacterized. Essentially, the question before the Board is whether the most probative evidence reflects that the symptoms associated with the Veteran’s service-connected headache disability and seasonal allergic rhinitis meet or most closely approximate the criteria for compensable initial evaluations for these disabilities prior to January 26, 2015. Because analysis of these issues entails application of identical laws to similar facts, the Board will discuss them together for the sake of economy. The Veteran’s service-connected disabilities are currently evaluated under 38 C.F.R. §§ 4.97 and 4.124a, Diagnostic Codes 6522 and 8100, pertaining to allergic rhinitis and migraine headaches, respectively. The Board finds these Diagnostic Codes to be most appropriate, as the criteria and diagnosis are congruent with the Veteran’s disability picture. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Diagnostic Code 6522 provides for a 10 percent rating when there are no polys, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted for allergic or vasomotor rhinitis when there are polyps. The rating criteria do not define "obstruction" but VA's promulgating comments at Federal Register, 61 Fed. Reg. 46720, 46722 (Sept. 5, 1996) note the term accounts for symptoms of "interference with breathing space." Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating; characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating; very frequent completely prostrating and prolonged attacks that produce severe economic inadaptability warrant a 50 percent rating. The rating schedule does not define “prostrating” or “economic inadaptability.” However, "prostrating" is defined as extreme exhaustion or powerlessness. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). As to the term "productive of economic inadaptability," such term could have either the meaning of "producing" or "capable of producing" economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The evidence of record describing the frequency and severity of the Veteran’s headache and rhinitis symptoms and the functional impairment stemming from such include the pre-discharge August 2010 VA examination, the Veteran’s service treatment records contemporaneous with this examination, and his post-service VA and private treatment records. Concerning the Veteran’s service-connected headache disability, the evidence for consideration does not use the term “prostrating;” however, the August 2010 VA examination report and the service treatment records contemporaneous with such outline the frequency and severity of the Veteran’s recurrent headaches in detail. These records reflect that the Veteran’s headaches occurred more than once per week and would last for up-to two days. The medical evidence further reflects that the Veteran would “work through” these symptoms with over-the-counter medications. Based on the above evidence, the Board concludes that the symptoms associated with the Veteran’s service-connected headache disability most closely approximate the criteria for a 30 percent evaluation, but no higher, prior to January 26, 2015. While the evidence of record at the time of the May 2011 rating decision arguably did not reflect that his headaches were “prostrating,” the service treatment records dated contemporaneous to the August 2010 pre-discharge VA examination that were subsequently submitted by the Veteran provided a more detailed account of his headache symptoms. These further details include evidence showing that the headaches reflected in the August 2010 VA examination were “prostrating” for the purposes of Diagnostic Code 8100. As such, the criteria for a 30 percent initial evaluation, but no higher, were met prior to January 26, 2015. Further, since the finality of the May 2011 rating decision has been overcome, and the present appeal stems from the Veteran’s initial claim for benefits that was filed prior to the Veteran’s service separation as part of the BDD program, a 30 percent initial evaluation is warranted from October 1, 2010, (the day after his separation from active duty) to January 25, 2015. Regarding the Veteran’s service-connected allergic rhinitis, there is no evidence prior to January 26, 2015, showing nasal polyps or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. Again, the evidence shows that the Veteran treated his symptoms with over-the-counter medications. During the pendency of the current appeal, the Veteran stated that his medication usage during this period prevented the nasal passage obstruction that would later be identified at the October 2015 VA examination. To this point, while 38 C.F.R. §§ 4.1 and 4.2 stipulate that VA must view each disability "in relation to its history" to "accurately reflect the elements of disability present," a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Based on these controlling laws, the evidence of record showing that the Veteran utilized over-the-counter medication to lessen the severity of his service-connected allergic rhinitis during and since his active duty, and the Veteran’s retrospective statements concerning his symptoms, the Board concludes that the criteria for a 10 percent initial evaluation, but no higher, were met prior to January 26, 2015. Further, since the finality of the May 2011 rating decision has been overcome, and the present appeal stems from the Veteran’s initial claim for benefits that was filed prior to the Veteran’s service separation as part of the BDD program, a 10 percent initial evaluation is warranted from October 1, 2010, (the day after his separation from active duty) to January 25, 2015. As detailed above, the Board has concluded that the criteria for 30 percent and 10 percent initial evaluations for the Veteran’s service-connected headache disability and seasonal allergy rhinitis are warranted from October 1, 2010, to January 25, 2015. As the Veteran’s initial appeal to the Board, before it was recharacterized, sought effective dates prior to January 26, 2015, for the assignment of 30 percent and 10 percent evaluations for these service-connected disabilities, the Board’s conclusions arguably represent a complete grant of the benefits sought on appeal. Notwithstanding the above, the Board finds that the Veteran’s characterization of his appealed issues as seeking earlier effective dates for these partial increases did not serve to limit his appeal in light of the Board subsequent recharacterization of such as issues seeking increased initial evaluations. Accordingly, the Board has considered whether further increased evaluations are warranted; however, the evidence of record, to include from the Veteran, is devoid of any inference or suggestions that the Veteran’s rhinitis was manifested by nasal polyps or that he experienced economic inadaptability due to his service-connected headache disability. Accordingly, further increased initial evaluations are not warranted prior to January 26, 2015. Finally, as there are higher schedular evaluations available for these service-connected disabilities, extraschedular consideration is unnecessary. Morgan v. Wilkie, 31 Vet. App. 162 (2018) (holding that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered.) Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel 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.