Citation Nr: 20043718 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-37 332 DATE: June 29, 2020 ORDER A rating in excess of 10 percent since April 4, 2014, for allergic rhinitis is denied. FINDING OF FACT The Veteran’s allergic rhinitis disability manifested with no more than greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side since April 4, 2014. CONCLUSION OF LAW Since April 4, 2014, the criteria for a disability rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.97, Diagnostic Code (DC) 6522 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1954 to April 1958. In October 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. The case was remanded in February 2019 for evidentiary development and for a new medical examination. All actions ordered by the remand have been accomplished. Increased Ratings Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, 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. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a rating in excess of 10 percent since April 4, 2014, for allergic rhinitis Prior to filing the current claim, the Veteran’s service-connected allergic rhinitis disability has been evaluated as 10 percent disabling since March 31, 2011, under the schedule of ratings for the respiratory system. See 38 C.F.R. § 4.97, DC 6522. Under DC 6522, allergic or vasomotor rhinitis without polyps but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent rating. Rhinitis with polyps warrants a 30 percent rating. September 2013 private treatment records indicate the examiner noted that nasal polyps had been diagnosed. She noted no evidence of acute paranasal sinus disease, and diagnosed the Veteran with nasal congestion. She also noted a history of coughs, epistaxis (nosebleeds), nasal drainage, post-nasal drainage, and sneezing. In March 2014 the private examiner noted the Veteran was taking allergy shots once a week, and that he reported experiencing a cough, headache, nasal congestion, nasal drainage, post-nasal drainage, sneezing, tearing, and a swollen throat after the injections. The evaluation revealed sinus pressure, epistaxis, hearing loss, nasal congestion, nasal drainage, sneezing and a sore throat. Imaging indicated nasal discharge. At the March 2015 VA medical examination, the Veteran reported taking Claritin three times a week and that he stopped using the nasal spray Nasonex due to nosebleeds. He also reported using Vicks nasal gel in the evening and Benadryl intermittently. He further reported that the severity of his symptoms felt similar to the severity he reported at the May 2013 VA medical examination. The examiner noted the Veteran’s diagnosis of rhinitis. The examination revealed the Veteran did not demonstrate more than 50 percent obstruction of the nasal passage on both sides, complete nasal obstruction of either side, or nasal polyps. The examiner indicated the Veteran demonstrated permanent hypertrophy of the nasal turbinates, but no other pertinent physical findings, complications, conditions, signs or symptoms related to his allergic rhinitis disability. The examiner noted the May 2013 sinus imaging, which revealed no definite abnormalities, and that the Veteran’s disability did not have a functional impact on his ability to work. On his October 2015 notice of disagreement (NOD), the Veteran reported polyps and chronic severe nosebleeds. At the October 2018 Board hearing, the Veteran testified that he experienced more obstructed breathing than he did in 2015 and that he also continued to experience nosebleeds. These lay statements are competent regarding their observations of the Veteran’s rhinitis disability, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to rate the Veteran’s disability according to the schedule of ratings for respiratory disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). At the October 2019 VA medical examination, the Veteran reported symptoms such as nasal congestion, post-nasal drainage, and nosebleeds for several years. He also reported he took Claritin every 3 days. The examiner noted the Veteran did not demonstrate more than 50 percent obstruction of the nasal passage on both sides, complete obstruction on either side, permanent hypertrophy of the nasal turbinates, or nasal polyps. The examiner noted no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s allergic rhinitis disability. The examiner also noted the Veteran’s rhinitis disability did not impact his ability to work. The preponderance of the evidence is against the claim for an increased rating and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.