Citation Nr: 21068932 Decision Date: 11/16/21 Archive Date: 11/16/21 DOCKET NO. 11-11 580 DATE: November 16, 2021 ORDER Prior to September 28, 2020, a 10 percent rating for allergic rhinitis, status post septoplasty, is granted. A rating in excess of 10 percent for allergic rhinitis, status post septoplasty, is denied. Prior to April 6, 2012, a total disability rating based on individual unemployability (TDIU) is denied. Beginning April 6, 2012, TDIU is granted. REMANDED Entitlement to a compensable rating for sinus headaches is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's allergic rhinitis, status post septoplasty, has more nearly approximated allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. 2. Prior to April 6, 2012, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 3. Beginning April 6, 2012, the probative evidence of record demonstrates that it is at least as likely as not that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Prior to September 28, 2020, the criteria for a rating of 10 percent for allergic rhinitis, status post septoplasty, have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6522. (2020). 2. The criteria for a rating in excess of 10 percent for allergic rhinitis, status post septoplasty, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6522. (2020). 3. Prior to April 6, 2012, the criteria for establishing entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). 4. Beginning April 6, 2012, the criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In December 2017, the Board denied the Veteran's claims for higher ratings for sinus headaches and allergic rhinitis, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a Joint Motion for Remand (Joint Motion), vacating the Board's December 2017 decision, including its failure to adjudicate a claim of entitlement to TDIU, and remanding the matter to the Board for readjudication. In December 2019 and May 2021, the Board remanded the claims for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to a higher rating for allergic rhinitis, status post septoplasty The Veteran's allergic rhinitis, status post septoplasty, has been assigned a 0 percent rating prior to September 28, 2020, and a 10 percent rating thereafter. 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. A maximum 30 percent rating is assigned for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. Upon review of the record, the Board finds that a rating of 10 percent, but not higher, is warranted throughout the period on appeal. The Veteran underwent a VA examination in December 2009, during which he reported constant sinus problems, including interference with breathing through the nose, purulent discharge from the nose, pain, and crusting. He reported three non-incapacitating episodes a year, antibiotic treatment lasting four to six weeks for sinus problems, and treatment with Flonase for allergies. A physical examination revealed no evidence of nasal obstruction, septum deviation, loss of the nose or ala, nasal polyps, scarring, disfigurement, or sinusitis. X-rays revealed no fractures, osseus abnormalities, or deviation of the septum, and the nasal spine of the maxillae was intact and normal. During the June 2015 Board hearing, the Veteran testified that sometimes one or both of his nasal passages "clog up" or "shut up." The Veteran underwent another VA examination in March 2016, during which he reported that his allergic rhinitis was significantly controlled with nasal sprays and Loratadine, but he had occasional sinus infections. The examiner indicated that there was no evidence of greater than 50-percent obstruction of the nasal passage on both sides due to rhinitis, complete obstruction on the left or right side due to rhinitis, permanent hypertrophy of the nasal turbinates, or nasal polyps. It was noted that the Veteran's allergic rhinitis did not impact his ability to work. The Veteran underwent another VA examination in September 2020, during which he reported excessive drainage and congestion on a daily basis. The examiner indicated that there was greater than 50-percent obstruction of the nasal passage on both sides due to rhinitis and complete obstruction on the right side due to rhinitis. There was no evidence of hypertrophy of the nasal turbinates or nasal polyps. The Veteran reported that his allergic rhinitis affected in his ability to work in that he had to constantly wipe or blow his nose, which affected his productivity. He also reported nose pain due to blockages, excessive nasal swelling, and congestion. The Veteran underwent another VA examination in June 2021, during which he reported ongoing allergy symptoms of nasal congestion and drainage, which he treated with Allegra D and nasal spray. The examiner indicated that there was no evidence of greater than 50-percent obstruction of the nasal passage on both sides due to rhinitis, complete obstruction on the left or right side due to rhinitis, permanent hypertrophy of the nasal turbinates, or nasal polyps. It was noted that the Veteran's allergic rhinitis did not impact his ability to work. In June 2021, a VA examiner reviewed the evidence of record and indicated that the Veteran's medication for allergic rhinitis had a permanent ameliorating effect on his symptoms, but he could still experience breakthrough symptoms of allergic rhinitis and sinus headaches, depending on various factors, including allergen exposure, length of allergen exposure, pollen counts, and barometric pressure changes. Treatment records during the period under review do not show symptoms more severe than those noted during the VA examinations. Based on the foregoing, and considering the ameliorating effects of the Veteran's allergy medications, the Board finds that the Veteran's overall disability picture has more nearly approximated allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. Accordingly, a 10 percent rating is granted throughout the period on appeal. The Board finds that a rating in excess of 10 percent is not warranted at any time, as the evidence of record does not show evidence of polyps, with or without allergy medication. See 38 C.F.R. § 4.97, Diagnostic Code 6522. The Board acknowledges that the Veteran reported during the December 2009 VA examination that he had three non-incapacitating episodes of sinus problems a year and received antibiotic treatment lasting four to six weeks for sinus problems. Diagnostic Code 6513 provides for a 10 percent rating for one or two incapacitating episodes of sinusitis a year requiring prolonged (four to six week) antibiotic treatment or three to six non-incapacitating episodes of sinusitis characterized by pain, headaches, and purulent discharge or crusting. See 38 C.F.R. § 4.97, Diagnostic Code 6513. However, service connection has been denied for sinusitis. Moreover, treatment records do not show evidence of such symptoms attributable to the Veteran's service-connected allergic rhinitis, status post septoplasty. Accordingly, a higher or separate rating may not be assigned under Diagnostic Code 6513. TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing or following a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §§ 4.16(a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist in some cases when earned annual income exceeds the poverty threshold on a facts found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. The poverty threshold for one person from 2009 to 2012 ranged between $11,161 and $11,945. See U.S. CENSUS BUREAU, POVERTY THRESHOLDS, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 2. Entitlement to TDIU Throughout the period under review, service connection has been in effect for posttraumatic stress disorder (PTSD), rated as 70 percent disabling; lumbar strain with intervertebral disc syndrome, rated as 20 percent disabling; left shoulder strain, rated as 10 percent disabling; right shoulder strain, rated as 10 percent disabling; left knee strain, rated as 10 percent disabling; right knee strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; onychomycosis of the toes, rated as 10 percent disabling; allergic rhinitis, rated as 10 percent disabling; sinus headaches rated as 0 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. The Veteran's combined disability rating is 90 percent. Thus, the schedular criteria for entitlement to TDIU have been met throughout the period on appeal. The record shows that the highest level of education attained by the Veteran is a high school diploma. During the Veteran's 20 years of active duty, his military occupational specialty was a wheeled vehicle mechanic. After service, the Veteran worked as a fuel delivery truck driver and an oilfield truck driver. On his August 2015 application for TDIU, the Veteran indicated that he last worked full-time on April 6, 2012, which is consistent with a correspondence from the Veteran's former employer. Subsequent treatment records show that the Veteran has reported being unemployed ever since. Upon review of the record, the Board finds that TDIU is warranted beginning April 6, 2012. With respect to the Veteran's PTSD, the Veteran is in receipt of a 70 percent rating based on occupational and social impairment with deficiencies in most areas including work, school, family relations, judgment, thinking, or mood. When assigning the 70 percent rating for PTSD throughout the period on appeal, the Board found that the Veteran's PTSD resulted in depressed mood; anxiety; suspiciousness; chronic sleep impairment; physical and verbal altercations; intermittent, passive suicidal ideation; obsessional rituals; difficulty adapting to stressful circumstances; disturbances of mood and motivation; and an inability to establish and maintain effective relationships. The Board noted that the Veteran's PTSD symptoms reportedly cost him previous jobs and relationships, which is consistent with VA treatment records showing that the Veteran reported losing his most recent job due to anger issues. In March 2014, the Veteran reported enrolling in vocational classes to learn welding. It was noted that his mood was irritable; he had angry outbursts, and he had difficulty being around crowds and people generally. The Veteran subsequently reported obtaining his welding certificate, but he continued to remain unemployed. With respect to the Veteran's lumbar strain with intervertebral disc syndrome, the Veteran reported back pain, which affected his ability to sleep and engage in prolonged sitting, standing, and walking. A March 2016 VA examiner indicated that the Veteran's low back disability resulted in moderate impairment for physical and sedentary labor. With respect to the Veteran's left and right shoulder strains, the Veteran reported bilateral shoulder pain with increased activity. With respect to the Veteran's left and right knee strains, the Veteran reported bilateral knee pain, which caused difficulty with prolonged walking, standing, and running. In September 2020, a VA examiner reviewed the evidence of record and opined that the Veteran was able to perform light work, which was defined as exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. Light work also included jobs requiring walking or standing to a significant degree; sitting most of the time, but required pushing and/or pulling of arm or leg controls; and/or working at a production rate pace requiring the constant pushing and/or pulling of materials even though the weight of those materials is negligible. Based on the foregoing, and after resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that the Veteran's service-connected PTSD, low back disability, and bilateral shoulder knee disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience beginning April 6, 2012. Accordingly, TDIU is granted as of that date. The Board finds that TDIU is not warranted at any time prior to April 6, 2012, as the Veteran was working full-time, earning between $900 and $1,200 every two weeks. Such equates to an annual salary between $23,400 and $31,200, which is well above the poverty threshold. Moreover, the Veteran has not asserted, and the record does not suggest, that his employment as an oilfield truck driver for an energy company constituted marginal employment. Accordingly, entitlement to TDIU is not warranted prior to April 6, 2012. REASONS FOR REMAND 1. Entitlement to a compensable rating for sinus headaches is remanded. In the March 2019 Joint Motion, the parties agreed that the Board erred in impermissibly including the ameliorative effects of the Veteran's headache medication when denying a compensable rating for sinus headaches. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012). In December 2019 and May 2021, the Board remanded the claim in order to provide the Veteran with a new VA examination in which the examiner estimated the level of severity of the Veteran's sinus headaches without any medications. The Veteran underwent another VA examination in June 2021, and the examiner opined that "[w]ithout the Veteran's sinus headache medication, the Veteran's headache would most likely be constant during times of barometric pressure changes, exposures to allergens, and high pollen counts, making it difficult for the Veteran to be efficient and productive at his employer as well as cause occasional absences, tardiness or need to leave work early." However, the Board is unable to determine from this characterization whether or not, and to what extent, the Veteran would experience prostrating attacks of sinus headaches without medication. Accordingly, another remand is necessary in order to obtain another medical opinion. The matters are REMANDED for the following action: Provide the claims file to an appropriate clinician to obtain an opinion pursuant to the Veteran's claim for a compensable rating sinus headaches. Do not schedule the Veteran for another VA examination unless it is deemed necessary by the clinician to answer the questions presented. After review of the claims file, the clinician should answer the following: (a.) Is it at least as likely as not that the Veteran's service-connected sinus headaches would be manifested by characteristic prostrating attacks without the use of medications, including nasal sprays, vapor rub, loratadine, and/or over-the-counter NSAIDs? Please explain why or why not. (b.) If the clinician opines that the Veteran would experience characteristic prostrating attacks without the use of medications, please provide an estimate of the duration and frequency of such prostrating attacks. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.