Citation Nr: 21067641 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-49 702 DATE: November 4, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for a low back disability is granted. A rating in excess of 10 percent for chronic allergic rhinitis is denied. REMANDED The issue of service connection for a low back disability is remanded. FINDINGS OF FACT 1. In a December 2012 rating decision, the application to reopen the previously denied claim of service connection for a low back disability was denied because the disability did not have its onset during service and is not otherwise related to service. 2. The evidence added to the record since the December 2012 rating decision became final relates to an unestablished fact that is necessary to substantiate the Veteran's service connection claim. 3. Throughout the period on appeal, the Veteran's chronic allergic rhinitis has not been manifested by nasal polyps or complete obstruction of the left or right nasal passage. CONCLUSIONS OF LAW 1. The December 2012 rating decision that denied the Veteran's claim of service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the December 2012 rating decision is new and material, the requirements to reopen the claim of service connection for a low back disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 3. The criteria for a rating in excess of 10 percent for chronic allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty served in the Army from June 2000 to September 2002. These matters come before the Board of Veterans' Appeals (Board) from an April 2015 rating decision. The Veteran testified before the Board at a hearing in February 2021. A transcript of the hearing has been associated with the claims file. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). Under the relevant regulation, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for the claim has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless "patently incredible." Duran v. Brown, 7 Vet. App. 216 (1994). After a review of the evidence submitted since the December 2012 rating decision became final, the Board determines that reopening the issue of service connection for a low back disability is warranted. In the February 2021 Board hearing, the Veteran provided new lay statements regarding her low back disability. She stated that she experienced low back strain during service when she was required to repeatedly moved heavy boxes as part of her duties as a supply clerk. She also stated that during service she injured her back when she fell off a Humvee onto the frozen ground, sought medical treatment, and was required to rest from duty for a week. Further, she stated that she was told by a private medical provider that the way she performed pushups during physical training contributed to her low back disability. She stated that she began treating symptoms of her low back disability shortly following separation from service and that she treated with both VA and private medical providers. The Board notes that private treatment records regarding the Veteran's low back disability have not been associated with the evidence of record and VA has not attempted to obtain these records. Additionally, in September 2018, new VA treatment records were associated with the claims file documenting treatment for low back pain from March 2005. The Board finds that not only is this evidence "new" in that it was not of record prior to the last final denial of the claim, it is also "material," because it relates to an unestablished fact necessary to support the claim. Namely, it shows that the Veteran's disability may have been incurred during service or may otherwise be related to service. Therefore, the claim is reopened on this basis. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Chronic Allergic Rhinitis Disability ratings regarding allergic rhinitis are assigned under 38 C.F.R. § 4.97, DC 6522. Under DC 6522, a 10 percent disability 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 maximum 30 percent disability rating is assigned for allergic rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. The Board has reviewed the evidence of record and finds that a rating in excess of 10 percent is not warranted for chronic allergic rhinitis. In February 2021, the Veteran provided testimony at the hearing before the Board regarding her claim of an increased rating for chronic allergic rhinitis. She stated that her chronic allergic rhinitis symptoms are very severe and worse than the assigned 10 percent rating. She stated that her nostrils are always clogged, she cannot breathe out of her nostrils, and she is constantly blowing her nose and sneezing. She stated that her chronic allergic rhinitis is treated by allergy shots, nasal sprays, and oral medication. Lastly, she stated that in the past she has also had allergic reactions that have caused her face, eyes, and tongue to swell. In March 2015, the Veteran underwent a VA examination regarding chronic allergic rhinitis. She reported that her chronic allergic rhinitis started in 2002 and has since worsened. The examiner documented that the Veteran's allergic rhinitis is treated with nasal sprays. The examiner diagnosed the Veteran as having allergic rhinitis. The examiner determined that the Veteran has greater than 50 percent obstruction of the nasal passage on both side due to rhinitis. The examiner also determined that the Veteran does not have nasal polyps, complete obstruction on one side due to rhinitis, or permanent hypertrophy of the nasal turbinates. Lastly, the examiner determined that the Veteran's allergic rhinitis does not impact her ability to work. In June 2017, the Veteran underwent a second VA examination regarding chronic allergic rhinitis. She reported that her chronic allergic rhinitis has worsened in the past three years with symptoms including stuffy nose, runny nose, itchy throat, itchy eyes, tearing eyes, and sneezing. The examiner documented that the Veteran's allergic rhinitis is treated with nasal spray. The examiner diagnosed the Veteran as having rhinitis. The examiner determined that the Veteran has greater than 50 percent obstruction of the nasal passage on both side due to rhinitis. The examiner also determined that the Veteran does not have nasal polyps, complete obstruction on the left or right side due to rhinitis, or permanent hypertrophy of the nasal turbinates. Lastly, the examiner determined that the Veteran's allergic rhinitis does not impact her ability to work. Regarding the Veteran's VA treatment throughout the period on appeal, in February 2015, she complained of worsening allergy symptoms and was prescribed a new nasal spray. In February 2017, she complained of worsening allergy symptoms over the past two years. She was documented as having no nasal polyps. She was prescribed nasal spray, a sinus rinse, and oral medication. In March 2017, she was again advised regarding allergy medication and began testing for allergy immunotherapy, allergy shots. In December 2017, the Veteran was noted as having well-controlled allergy symptoms with consistent compliance with allergy medications. She was noted as having no significant sneezing, runny nose, or allergy eye symptoms. She was also noted as having reached maintenance for her course of allergy shots. In May 2018, she continued to report improved allergy symptoms with one episode of hives and only mild to moderate congestion. She also reported less sneezing. The Board finds that the probative evidence of record demonstrates that a rating in excess of 10 percent is not warranted for chronic allergic rhinitis. The March 2015 and June 2017 VA examiners both determined that the Veteran has greater than 50 percent obstruction of the nasal passage on both side due to rhinitis; however, the examiners also determined that she does not have nasal polyps as required to warrant a higher rating under DC 6522. Additionally, the Veteran's VA treatment records also specifically document that although she complained of worsening allergy symptoms, which appear to have been improved with treatment, she did not have any nasal polyps upon examination as required to warrant a higher rating under DC 6522. Therefore, the Board finds a rating in excess of 10 percent is not warranted for chronic allergic rhinitis. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of a rating in excess of 10 percent chronic allergic rhinitis. Therefore, the appeal is denied. REASONS FOR REMAND The Board finds that further development is necessary regarding the Veteran's claim of service connection for a low back disability. As noted above, at the February 2021 Board hearing, the Veteran provided new lay statements regarding the onset of her low back disability during service, including reports of experiencing low back strain when repeatedly moving heavy boxes as a supply clerk, injuring her back when she fell off a Humvee onto the frozen ground, and injuring her back when performing pushups during physical training. Further, as noted above, in September 2018, newly associated VA treatment records demonstrated treatment for low back pain from March 2005. The Board finds that these lay statements and VA treatment records were not available for consideration during the June 2003 VA examination regarding the Veteran's spine. Therefore, the matter must be remanded for a new VA examination/opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, as noted above, at the February 2021 Board hearing, the Veteran identified private treatment records related to her low back disability. A review of the evidence of record indicates that VA has not attempted to obtain these records. Attempts should be made to obtain the records of that treatment. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private medical providers discussed in the February 2021 Board hearing who may have treated the Veteran for her low back disability. Ask the Veteran to complete a VA Form 21-4142 for each medical provider so identified, and attempt to obtain those records. 2. Following the completion of the above, obtain an addendum VA examination opinion that identifies any current lumbar spine disability, and addresses its etiology. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Identify/diagnose any current lumbar spine disability. b. For any diagnosed lumbar spine disability, provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability had its onset during service or is otherwise related to service? The examiner should consider the Veteran's reports of experiencing low back strain when repeatedly moving heavy boxes as a supply clerk, injuring her back when she fell off a Humvee onto the frozen ground, and injuring her back when performing pushups during physical training. In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. The examiner should also consider all lay statements submitted by the Veteran regarding her disability. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After any additional development as may become indicated has been accomplished, re-adjudicate the appeal. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.