Citation Nr: 21065775 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-34 230 DATE: October 27, 2021 ORDER Entitlement to an initial compensable rating for allergic rhinitis is denied. Entitlement to an initial compensable rating for chronic sinusitis is denied. REMANDED Entitlement to an initial compensable rating for dry eye syndrome with chronic blepharitis is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran's allergic rhinitis has not been productive of polyps, a 50 percent obstruction of both nasal passages, or complete obstruction of one nasal passage. 2. During the appeal period, the Veteran's sinusitis has not been productive of one or two incapacitating episodes per year requiring prolonged antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code 6522. 2. The criteria for a compensable rating for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code 6511. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to August 2016, including service in Afghanistan, Kosovo and Korea, and his decorations include the Parachutist Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In August 2020, the Board remanded the case for further development. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to an initial compensable rating for allergic rhinitis 2. Entitlement to an initial compensable rating for chronic sinusitis The Veteran is currently assigned a noncompensable rating for his service-connected allergic rhinitis and chronic sinusitis. The Veteran's allergic rhinitis is rated under DC 6522. Under Diagnostic Code 6522, a 10 percent rating is assigned for 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; and a 30 percent rating is assigned for allergic or vasomotor (non-allergic) rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. His sinusitis is currently rated under Diagnostic Code 6512. Under the General Rating Formula for Sinusitis, a noncompensable rating is warranted for sinusitis that is detected by x-ray only. 38 C.F.R. § 4.97. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. A 30 percent rating is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. A maximum 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Id. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. At the August 2016 VA examination, the Veteran reported sinus infections twice a year with occasional severe pain. The was no greater than 50% obstruction and no nasal polyps. The examiner diagnosed allergic rhinitis, but not sinusitis. There were no sinusitis findings reported. The Board notes not records were reviewed. At the December 2020 VA examination, the Veteran reported frequent headaches and persistent congestion. He had surgery a year earlier. The sinus headaches can be debilitating. The persistent congestion affects snoring and breathing. The examiner changed the diagnosis from allergic rhinitis to status post septoplasty and chronic sinusitis. The sinusitis results in chronic sinusitis detected only by imaging studies, episodes of sinusitis, headaches, pain of affected sinus, and tenderness of the affected sinus. There were no non-incapacitating or incapacitating episodes in the past 12 months. An X-ray of the paranasal sinus showed defects in the left nasal cavity. The Board finds that the preponderance of the evidence shows that a compensable rating is not warranted for allergic rhinitis or chronic sinusitis. For allergic rhinitis, the Veteran's disability manifested with no symptoms. Although allergic rhinitis was diagnosed, the Veteran reported sinus symptoms. At the February 2020 Board hearing, the Veteran asserted that the August 2016 VA examiner misunderstood the claimed disability during the VA examination, and incorrectly reported rhinitis instead of sinusitis as the claimed disability. Further, there is no indication the Veteran had nasal polyps, a greater than 50 percent obstruction of nasal passage on both sides, or complete obstruction on one side. As the Veteran does not meet the criteria for a higher rating for allergic rhinitis, a compensable rating under Diagnostic Code 6522 is not warranted. For chronic sinusitis, the Veteran's disability manifested with sinus infections, sinus headaches, and persistent congestion. There is no indication the Veteran experienced one or two incapacitating episodes requiring prolonged antibiotics due to sinusitis, or; three to six incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. As the Veteran does not meet the criteria for a higher rating for chronic sinusitis, a compensable rating under Diagnostic Code 6511 is not warranted. The Board has also considered whether a higher disability rating is warranted under an alternative diagnostic code. However, the medical evidence does not show any symptoms or diagnoses which would warrant a higher disability rating under an alternative diagnostic code. As such, the preponderance of the evidence is against this claim. Therefore, the Veteran does not warrant an initial compensable rating for allergic rhinitis or chronic sinusitis and the claim is denied. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for dry eye syndrome with chronic blepharitis is remanded. In reviewing the record, the Board finds the visual field testing incomplete for the August 2016 and August 2021 VA examinations. Visual field testing requires at least 16 meridians 22 12 degrees apart must be documented for each eye. 38 C.F.R. § 4.77(a). The August 2016 and August 2021 the examination reports did not include any numeric results and the accompanying Goldmann charts did not include measurements for the either eye. While the August 2016 examination report showed a visual field defect and the Goldmann charts indicated a black spot, the examiner did not provide an explanation for either finding. The Board notes that the August 2021 examiner found there was no documented visual field defect. In addition, the August 2021 examination report did not indicate that visual field testing was conducted. he Board notes that the August 2016 and August 2021 Goldmann charts also showed black spots in the Veteran's visual field. As testing was conducted that does not comply with VA regulations, the Board finds a remand is required to obtain interpretations of the results. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain the results with numeric values of the visual field testing from the August 2016 and August 2021 VA examinations. If the results cannot be obtained, then schedule the Veteran for a VA eye examination to determine the current severity of the Veteran's service-connected eye disability. The examiner must review the claims file and should note that review in the report. The examiner should state all examination findings, with the rationale for the comments and opinions expressed. Visual field testing results must be included. The examiner is reminded that at least 16 meridians 22 12 degrees apart must be documented for each eye. The examiner should describe the nature and severity of all manifestations of the Veteran's eye disability. The examiner should elicit information about the nature of the eye disability and all symptoms or manifestations of the disability when present, even if not present at the time of the examination, including watering, burning, itching, irritation, and redness. The examiner should also comment on the functional impairment resulting from the Veteran's eye disability. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should provide information to allow application of all applicable rating criteria during the appeal period, including the versions of the eye rating criteria effective prior to and as of May 13, 2018. The examiner is advised that, prior to May 13, 2018, an incapacitating episode is defined as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare professional. As of May 13, 2018, an incapacitating episode is defined as an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.