Citation Nr: 20041165 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 16-41 306 DATE: June 17, 2020 ORDER Entitlement to a compensable initial disability rating for allergic rhinitis is denied. REMANDED Entitlement to service connection for skin disability is remanded. Entitlement to service connection for vision disability is remanded. FINDING OF FACT Throughout the claim period, the Veteran’s symptoms of allergic rhinitis manifested as nasal congestion, runny and itchy nose, watery eyes, and sneezing, but symptoms did not more nearly approximate greater than 50 percent obstruction of nasal passage on both sides, complete obstruction on one side, or polyps. CONCLUSION OF LAW The criteria for a compensable initial disability rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.97, Diagnostic Code (DC) 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2000 to December 2006. In a June 2013 administrative decision, a Department of Veterans Affairs (VA) Regional Office (RO) found that only the Veteran’s period of service from November 13, 2000 to November 23, 2004 was considered honorable service. His service from November 24, 2004 to December 5, 2006 was determined to be dishonorable for VA purposes. These matters come before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision, among other things, denied the claims of service connection for skin condition and vision problem due to fuel spillage, and granted the claim of service connection for allergic rhinitis with a noncompensable initial evaluation. The Veteran timely appealed these matters. In November 2018, the Board remanded the claims for further development, to include VA examinations. For the reasons indicated in the discussion below, the Veteran’s VA examination is adequate to decide the claim for a higher initial disability rating for allergic rhinitis.  Therefore, the Agency of Original Jurisdiction substantially complied with the Board’s remand instructions in regard to that claim.  Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a compensable initial disability rating for allergic rhinitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate DCs identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected allergic rhinitis is assigned a noncompensable initial evaluation under DC 6522. Under DC 6522, when there are no polyps, but there is greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side, a 10 percent evaluation is merited. Allergic or vasomotor rhinitis with polyps is evaluated as 30 percent disabling. 38 C.F.R. § 4.97. This rating code does not contain provisions for a zero percent evaluation. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. During an August 2013 VA examination, the examiner confirmed a diagnosis of allergic rhinitis. The Veteran reported experiencing in-service symptoms of runny and itchy nose, watery eyes, and sneezing that have worsened since separation from service. He noted he was unable to attend meetings at work because of constant sneezing and itchy eyes. Allergy testing performed in May 2006 found allergic rhinitis to dogs, cats, dust, mites, trees, and selected weeds and grass. The Veteran had no history of surgery. There was not greater than 50% obstruction of the nasal passage on both sides, or complete obstruction on one side, due to rhinitis. There was not permanent hypertrophy of the nasal turbinates or nasal polyps. During a July 2019 VA examination, the Veteran reported experiencing daily and year-round symptoms of congestion, runny nose, watery eyes, and sneezing. There was not greater than 50% obstruction of the nasal passage on both sides, or complete obstruction on one side, due to rhinitis. There was not permanent hypertrophy of the nasal turbinates or nasal polyps. The examiner found the Veteran must not work outdoors and must stay away from known allergens. For the following reasons, a compensable initial disability rating for allergic rhinitis is not warranted. The evidence of record shows that the symptoms of the Veteran’s allergic rhinitis have manifested as nasal congestion, watery eyes, runny and itchy nose, and sneezing. An evaluation of 10 percent under DC 6522 requires greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side, or nasal polyps. While nasal congestion is noted, it was not shown to approximate sufficient obstruction in one or both nasal passages in the August 2013 or July 2019 VA examinations as to warrant a compensable rating under this DC. The Veteran also does not suffer from symptoms approximating nasal polyps as is required for a 30 percent evaluation. The Board notes that when a condition is specifically listed in the Schedule, as is rhinitis, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board will therefore not consider any other DCs. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s allergic rhinitis symptoms have not more nearly approximated the criteria for a compensable rating. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “38 C.F.R. § 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board”). REASONS FOR REMAND Entitlement to service connection for skin disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Service treatment records show that the Veteran was diagnosed with folliculitis and a heat rash with resolving ingrown hairs and received a shaving profile. VA treatment records note that the Veteran was prescribed hydrocortisone lotion and ketoconazole shampoo for a “skin condition.” The Veteran underwent a VA examination in connection with his claim for skin condition in August 2013. The examiner determined that the Veteran had a diagnosis of folliculitis in-service, but that it had resolved, and there was no current skin condition. In July 2019, a VA examiner found that the Veteran did not suffer from a skin condition. While VA treatment records showed the Veteran was prescribed hydrocortisone cream in March 2012, May 2014, and October 2014, a skin condition was not documented. The Veteran has not been evaluated for a skin condition since that time and did not have skin lesions at the time of the examination. In a May 2020 brief, the Veteran’s attorney argued that the July 2019 examination was inadequate. Specifically, the Veteran’s attorney argued that the Veteran suffers from an intermittent skin condition where bumps appear on his arms, chest, neck, and back and last for approximately three to four days. The bumps are itchy, and when they start to get hard, they hurt and are sensitive. The Veteran previously used lotion prescribed by the VA to treat his skin condition, but it did not work, and he no longer receives treatment for the condition. The Veteran’s attorney submitted photographs of the Veteran’s recent skin condition outbreaks and requested a new VA opinion in order to review the photographs and determine whether the Veteran had a skin condition that began in-service. Even though the August 2013 and July 2019 VA examiners found that the Veteran did not have a skin condition at the time of the examinations, the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board must consider evidence prior to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Moreover, the Court has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). The Veteran’s attorney’s argument in his May 2020 brief that the Veteran has a skin disability that occurs intermittently is persuasive in regard to requesting a new VA opinion to determine whether the Veteran has a current skin disability that is related to service, and the request for a remand will be granted. Entitlement to service connection for vision disability The Veteran’s service treatment records noted an April 2001 incident during his active honorable service when he got jet fuel in his eyes, resulting in a scleral abrasion. He also reported in July 2004 that he experienced eye twitching and had difficulty focusing his vision. During an August 2013 VA examination, the Veteran reported blurry vision since the jet fuel incident. The examiner determined that the claimed condition was less likely than not related to service because his visual acuity was correctable to 20/20 in each eye at service entrance, the examination revealed unremarkable anterior and posterior eye health in both eyes without scarring or disfigurement from jet fuel spillage, and he currently had vision correctable to 20/20 in each eye. In a September 2016 private treatment record, the Veteran reported to clinicians that he experienced twitching and stinging in his eyes. During a July 2019 VA examination, the VA optometrist found that there were no ocular residuals/vision problems due to fuel spillage that was at least as likely as not incurred in or caused during service. There was no current diagnosed eye disorder that was related to the Veteran’s active honorable service, to include the April 2001 jet fuel incident and July 2004 complaint of eye twitching and difficulty focusing his vision. There was no current complaint of eye twitching or difficulty focusing, nor would this be a residual of fuel spill years earlier while in-service. There was no scarring or other ocular residuals from jet fuel spillage to the eyes, and ocular health was normal with no scarring present. There were no indications of ocular sequelae that would be residuals of the 2001 jet fuel incident. Any visual field deficit would not be caused by the fuel spillage incident incurred during service. Ocular exam was unremarkable with no evidence of scarring or residuals from chemical exposure; there was no optic nerve damage. While there is currently no specific diagnosis with regard to the Veteran’s vision disability symptoms, the Court made clear in Saunders that a diagnosis is not required in order to satisfy the current disability requirement, and pain or other symptoms can constitute disability if they cause impairment in earning capacity. Saunders, 886 F.3d at 1364-65. In addition, in a May 2020 brief, the Veteran’s attorney argued that the Veteran’s vision problems may be related to a head injury he suffered in-service when he was blown off the flight deck, therefore, a remand for an opinion to consider this theory of entitlement is warranted. Evidence of record in support of this in-service incident includes a September 2002 service treatment note that indicated the Veteran hurt his back, neck, and side after falling from the flight deck, and two statements received in September 2016 from fellow servicemembers that described the incident where the Veteran was blown off of the flight deck. Thus, the in-service injury or disease requirement is met. The Veteran’s attorney’s arguments are persuasive in regard to whether the Veteran has a vision disability that is related to a head injury he suffered in-service, and the request for a remand for a new opinion to consider this theory of entitlement will be granted. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (when determining service connection, all theories of entitlement reasonably raised by the evidence of record must be considered). Accordingly, the matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate specialist physician as to whether it is at least as likely as not (50 percent or greater probability) that any skin disability had its onset during the Veteran’s active honorable military service or is otherwise related to his active honorable military service. The physician should clearly identify any skin disability that has existed since approximately March 2012 when the claim was filed. The claims file should be provided to and reviewed by the physician.   A complete rationale should accompany any opinion provided. 2. Obtain an opinion from an appropriate specialist physician as to whether it is at least as likely as not (50 percent or greater probability) that any vision disability had its onset during the Veteran’s active honorable military service or is otherwise related to his active honorable military service, to include an in-service incident where he was blown off the flight deck. In addition, the physician should note that disability may exist even in the absence of a specific diagnosis, and that symptoms such as pain can constitute disability if it causes impairment in earning capacity. The claims file should be provided to and reviewed by the physician.   A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, Associate 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.