Citation Nr: 21066811 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 20-18 130 DATE: November 2, 2021 REMANDED Entitlement to an initial compensable rating for allergic rhinitis with epistaxis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1989 to February 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for allergic rhinitis and assigned a noncompensable rating, effective September 23, 2009. In September 2019 the Veteran filed a notice of disagreement (NOD) and in December 2019 the RO issued a Statement of the Case (SOC). In February 2020 the Veteran filed a substantive appeal (via VA Form 9). In August 2020 the Board denied entitlement to an initial compensable rating for allergic rhinitis. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans' Claims (Court) and in July 2021, while the matter was pending before the Court, the Veteran's attorney and VA's General Counsel filed a joint motion for partial remand (JMPR). In July 2021, the Court granted the parties' motion, vacated the Board's August 2020 decision pertaining to the Veteran's allergic rhinitis and remanded the matter for action consistent with the JMPR. Allergic rhinitis with epistaxis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. 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 allergic rhinitis is currently rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522. Under DC 6522, a 10 percent rating is warranted 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. A 30 percent is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. The Veteran contends that he should be entitled to a higher initial rating for his service-connected allergic rhinitis under DC 6522. Also, in a May 2020 letter, the Veteran, through his representative, argued that he experiences intermittent nosebleeds (epistaxis) two or three times a month and a separate rating of at least 10 percent is warranted by analogy under diagnostic code (DC) 6502, which pertains to a deviated nasal septum. Notably, epistaxis is a disability that is not listed under VA's rating schedule. Where the particular service-connected disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. A January 2000 service treatment record (STR) indicates that the Veteran has experienced nosebleeds dating back to his time on active duty. An April 2015 VA treatment note indicates that the Veteran experienced one episode of epistaxis. A March 2018 VA physician diagnosed the Veteran with anterior epistaxis and noted that he uses saline nasal spray to keep his nose moist. In the July 2021 JMPR, the Court found that the Board erred by failing to adequately contemplate the Veteran's epistaxis when rating his allergic rhinitis under DC 6522. The Court also found that the Veteran's epistaxis could be rated by analogy and noted that the criteria for a compensable rating under DC 6502 only calls for 50 percent obstruction of the nasal passages on both sides, while a compensable rating under DC 6522 calls for greater than 50 percent obstruction on both sides. The Court remanded the Veteran's claim to determine 1) whether the Veteran has an epistaxis disability, 2) whether his epistaxis is due to his service-connected allergic rhinitis, and if so, 3) whether his epistaxis is contemplated by the criteria of DC 6522, 4) whether his epistaxis is capable of rating by analogy, and 5) what rating is warranted. In this case, it is unclear whether the Veteran's epistaxis is associated with his service-connected allergic rhinitis and the extent to which each causes obstruction of the nasal passage. A new VA examination is therefore warranted to answer these questions. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate clinician to determine the current severity of the Veteran's service-connected allergic rhinitis. If a VA examination is deemed necessary, one should be conducted. The claims file must be sent to the designated clinician for review. The clinician must identify all nasal disorder(s) present at any time during the relevant appeal period, to include rhinitis and epistaxis. The clinician must determine whether the Veteran's epistaxis is related to his service-connected allergic rhinitis. If answered affirmatively, the clinician should consider whether the Veteran's allergic rhinitis with epistaxis causes him greater than 50 percent obstruction on both sides (without polyps) or manifests with polyps. The clinician should also indicate whether the Veteran's epistaxis by itself causes the Veteran a 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. The agency of original jurisdiction should readjudicate the claim consistent with the instructions of the parties to the joint motion, to include consideration of a separate rating for epistaxis consistent with Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019), in which the Court held that VA must use all schedular tools including a grant of secondary service connection or a grant of a separate rating for symptoms associated with a disability prior to extraschedular consideration. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.