Citation Nr: 21001250 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-20 712 DATE: January 7, 2021 ORDER A rating in excess of 10 percent for allergic rhinitis with hypertrophy of inferior turbinates is denied. REMANDED Entitlement to service connection for deviated septum is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period from July 9, 2013 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person is remanded. FINDING OF FACT The Veteran’s allergic rhinitis with hypertrophy of inferior turbinates does not result in polyps. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for allergic rhinitis with hypertrophy of inferior turbinates are not met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to September 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran initially requested a Board hearing at a local VA office but subsequently withdrew his request. 38 C.F.R. § 20.704(e). This matter was previously before the Board in April 2018 where the issues of entitlement to service connection for deviated septum, increased rating for rhinitis, and entitlement to a TDIU were remanded for further development. The matter was most recently before the Board in April 2020 on a separate appeal of issues of increased rating for posttraumatic stress disorder (PTSD) and entitlement to SMC based on need of aid and attendance which were remanded for further development. Thereafter, in a June 2020 rating decision, the RO granted SMC based on housebound criteria being met from May 21, 2012 to July 31, 2013; and granted an earlier effective date for PTSD with a 100 percent evaluation from October 22, 2007 to July 8, 2013, and continued 50 percent evaluation effective July 9, 2013. However, inasmuch as a higher rating is available and as the Veteran is presumed to seek the maximum available benefit for a disability, this claim for a higher rating remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating 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. 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. 1. Entitlement to a rating in excess of 10 percent for allergic rhinitis with hypertrophy of inferior turbinates. The Veteran filed a claim for increased rating in May 2014 which was denied by rating action of February 2015. He is currently rated at 10 percent disabling for allergic rhinitis. The Veteran’s allergic rhinitis is evaluated under Diagnostic Code 6522. A 10 percent rating is assigned for allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is assigned for allergic rhinitis with polyps. The Veteran’s medical records fail to establish that a higher disability rating is warranted as they do not show that his allergic rhinitis with hypertrophy of inferior turbinates has resulted in polyps. In January 2015, the Veteran was afforded a VA examination. The examiner indicated the Veteran did not have greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis; there was no complete obstruction on the left or right side due to rhinitis. The examiner indicated the Veteran did not have nasal polyps. In compliance with the Board’s April 2018 remand, the Veteran was afforded another VA examination in January 2020. The examiner noted that the Veteran had moderate rhinitis. After clinical evaluation, the examiner indicated the Veteran did not have greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis; there was no complete obstruction on the left or right side due to rhinitis; and indicated the Veteran did not have nasal polyps. Here, the evidence of record does not establish findings consistent with a 30 percent rating. The January 2015 and January 2020 VA examiners consistently indicated that the Veteran’s allergic rhinitis did not result in nasal polyps. In addition, his medical records do not show allergic rhinitis results in polyps. As such, the record does not show that the Veteran’s allergic rhinitis results in polyps, which is required for the maximum 30 percent disability rating under Diagnostic Code 6522. 38 C.F.R. § 4.97. Accordingly, the criteria for a schedular rating in excess of 10 percent for the Veteran’s allergic rhinitis have not been met, and the claim is denied. REASONS FOR REMAND 2. Entitlement to service connection for deviated septum secondary to service-connected allergic rhinitis. In compliance with the Board’s April 2018 remand, a VA opinion was obtained in January 2020. However, the examiner used an incorrect standard of “clear and unmistakable” for secondary service connection and rendered an opinion for aggravation of a condition that existed prior to service. The Board points out that aggravation under secondary service connection pursuant to 38 C.F.R. § 3.310 is distinguishable from the standard for aggravation of a pre-existing condition as discussed above. 38 C.F.R. § 3.306. Meaning, the January 2020 examiner applied a higher standard for aggravation than that set out in the regulations for aggravation of a nonservice-connected disability. Accordingly, the opinion is inadequate. Thus, remand is necessary to obtain a new opinion addressing secondary aggravation under 38 C.F.R. § 3.310(b). Furthermore, the Board’s April 2018 remand also instructed that the medical opinion reflect consideration of the medical articles submitted by the Veteran from the Mayo Clinic and American Academy of Otolaryngology, which the January 2020 examiner failed to acknowledge. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to a rating in excess of 50 percent for PTSD for the period from July 9, 2013. In compliance with the Board’s April 2020 remand, development was accomplished including affording the Veteran a VA PTSD examination in August 2020. As noted above, by rating action of June 2020 the RO granted SMC housebound and earlier effective date for PTSD. However, although the RO indicated the decision constituted a full award of the benefits sought on appeal, on review of the certified issues, the Board notes the RO did not readjudicate the increased rating claim for PTSD which remains on appellate status. Accordingly, the issue on appeal must be remanded for consideration of pertinent evidence and issuance of a Supplemental Statement of the Case (SSOC). 4. Entitlement to a TDIU. In a recent correspondence submitted in March 2020, the Veteran stated he continues to seek a rating of 100 percent for PTSD for complete occupational and social impairment with reduced reliability, or in the alterative, a rating of 70 percent and TDIU for PTSD alone. See Correspondence received March 2020. As the development and readjudication ordered above for the Veteran’s increased rating for PTSD could result in information relevant to the TDIU appeal, the Board finds the issues are inextricably intertwined and the issue must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). 5. Entitlement to SMC based on aid and attendance. In the Board’s April 2020 remand, the issue of entitlement to SMC based on the need for the regular aid and attendance of another person was added and remanded for adjudication pending the development of the Veteran’s psychiatric increased rating claim. Specifically, the Board instructed, “[a]fter completing the development required above, the AOJ should readjudicate the claims…. entitlement to special monthly compensation based on the need for aid and attendance of another person.” See April 2020 remand at 16. However, it appears that no development or adjudication was accomplished for the issue of SMC based on aid and attendance and there is no SSOC. Stegall, 11 Vet. App. at 271. Accordingly, corrective action should be taken addressing the foregoing. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the January 2020 VA opinion. If the examiner is not available, the request may be referred to another, equally qualified medical professional, who must independently review the electronic claims folder. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner is to provide an addendum opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s deviated septum was aggravated, beyond the natural progress of the disease, by his service-connected allergic rhinitis with hypertrophy of inferior turbinates? The examiner’s opinion should reflect review of the medical articles from the Mayo Clinic and American Academy of Otolaryngology. See Correspondence and attachments submitted by the Veteran dated January 2016. A complete rationale for all findings and conclusions is requested. 2. Review the record and any additional VA-generated evidence associated with the electronic claims file, and readjudicate the claims on appeal. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. ] KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.