Citation Nr: 21073109 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-34 253A DATE: December 7, 2021 ORDER Entitlement to service connection for a disease of the nose and throat, to include allergic rhinitis and sinusitis, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has not had a chronic allergic rhinitis or sinusitis disability that is related to service. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis and/or sinusitis are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1977 to January 1981. In April 2018, December 2018, June 20, and June 2021, the issues on appeal were remanded for additional evidentiary development. The case has been returned ot the Board for appellate review.. 1. Entitlement to service connection for allergic rhinitis/sinusitis The Veteran submitted his claim for service connection for chronic allergic rhinitis in May 2012. A June 2021 Board decision recharacterized his claim as entitlement to service connection for a disease of the nose and throat, to include allergic rhinitis and sinusitis. On his October 2013 notice of disagreement (NOD) the Veteran asserted that his use of cigarettes, alcohol and marijuana during service caused his allergic rhinitis. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Although the service treatment records (STR) show that the Veteran had head colds and a viral syndrome during service, there were no complaints or findings of sinusitis or rhinitis. A January 1977 dental record noted that the Veteran was sensitive to poison ivy. This dental record indicates that the Veteran was not taking any medications for allergies. VA treatment records from March 2008 note that the Veteran has had episodes of allergic rhinitis. In March 2009 the Veteran said that his sinuses had not been bothering him lately and he was not using an inhaler. A January 2018 VA treatment record shows assessment of post upper respiratory infection (URI) viral rhinosinusitis. Positive clinical findings of discharge in nasal cavity, sinus tenderness, and pharyngeal erythema were shown in April 2018, and sinus congestion was shown in December 2018. Postnasal drip and sinus tenderness with assessment of acute sinusitis was noted in January 2020. The Veteran underwent a VA ear, nose, and throat (ENT) consultation for isolated right maxillary sinus mucus retention cyst in December 2016. On VA examination in August 2013, the VA examiner opined that the Veteran's allergic rhinitis was not caused by the head cold he had in service or by the viral flu syndrome he had in service. The physician noted that colds and acute viral syndromes do not cause seasonal allergies. In May 2018 a VA examiner opined that the Veteran's allergic rhinitis was not etiologically related to service. He noted that allergic rhinitis is caused by immunoglobulin E (IgE) and is not related to environmental exposure to fuel. He noted that the Veteran had normal environmental examinations during service. In January 2019 the VA examiner added that viral illnesses, such as colds, do not cause chronic allergies. An October 2020 VA DBQ examination report notes that the Veteran had experienced allergic rhinitis. The Veteran reported that with his current medications that his allergy symptoms were mostly under control. The VA examiner opined that it was less likely than not that the Veteran's allergic rhinitis clinical onset was during service. In January 2021 a VA examiner reviewed the Veteran's medical history and opined that the Veteran's inservice head cold is unrelated to allergic rhinitis. In July 2021 a VA physician reviewed the Veteran's medical history. She noted that diagnoses of rhinosinusitis (in January 2018) and acute sinusitis (in January 2020) were separate and distinct from the Veteran's current diagnosis of allergic rhinitis. She opined that the Veteran does not have chronic sinusitis. She stated that the Veteran has had episodes of sinusitis that have been acute in nature. The VA physician noted that during service the Veteran had cold and viral infections, but there was no evidence that the Veteran ever had sinusitis or allergic rhinitis during service. The Board has considered the Veteran's assertions that he has a current allergic rhinitis condition due to his use of cigarettes, alcohol and marijuana during service. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, the question presented in this case (i.e., whether any relationship exists between the Veteran's current allergic rhinitis disability, or any other sinus disability, and service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). An opinion as to whether there is a link between any current rhinitis/sinusitis disability and service, where there is no evidence of any such disabilities for years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. As noted above, none of the Veteran's STR show that the Veteran had allergic rhinitis or any other chronic sinus disorder, such as sinusitis, during service. Additionally, the post service medical records contain no reference to allergic rhinitis or any sinus disorder until March 2008, more than 27 years after discharge from service. Furthermore, VA clinicians have opined that the Veteran's allergic rhinitis is not related to service and that the Veteran does not have a current chronic sinusitis disorder. There are no medical opinions to the contrary. Thus, the preponderance of the evidence is against a finding that the Veteran has a current allergic rhinitis or chronic sinusitis disorder that had its onset in service or is otherwise related to service. As the preponderance of the evidence is against the claim, service connection for a disease of the nose and throat, to include allergic rhinitis and sinusitis, is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to TDIU. In July 2012 the Veteran submitted a letter stating that it was his intention to claim TDIU benefits. The Veteran stated on his October 2014 VA Form 9 that he was unable to do any manual labor and that he was not educated to work in new technologies. He asserted that companies would not hire him when they found out that he had back problems. He stated that he needed assistance to gain new employment opportunities. In January 2019, VA sent the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran did not fill out the form and return it to VA. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Prior to March 8, 2021 the Veteran did not meet the schedular requirements for TDIU. Prior to that date his maximum combined rating was 60 percent and that 60 percent rating was based on more than one disability. The Board finds that for prior to March 8, 2021, referral is not warranted for extraschedular TDIU consideration as the available evidence does not demonstrate that the Veteran's service-connected disabilities precluded following a substantially gainful occupation prior to that date. Prior to that date the Veteran had a 40 percent rating (or less) for lumbar spine arthritis, a 10 percent rating for tinnitus, a 10 percent rating for right lower extremity peripheral neuropathy and a 10 percent rating for left lower extremity peripheral neuropathy. Prior to April 29, 2016, the Veteran's only service-connected disability was his lumbar spine disability. None of the medical evidence prior to March 8, 2021 indicates that the Veteran was unemployable solely due to his service-connected lumbar spine, tinnitus and lower extremity peripheral neuropathy disorders. An August 2013 VA examination report noted that the functional impairment of the Veteran's back disability was pain with heavy lifting and frequent bending. An October 2016 VA examination report noted that the Veteran's peripheral neuropathy condition did not impact his ability to work. VA examiners noted in November 2016 and May 2018 that the Veteran's thoracolumbar spine condition did not impact his ability to work. An October 2020 VA examination indicated that the Veteran had increased pain, weakness and fatigue due to his lumbar spine disorder, but that he was employed. In sum, prior to March 8, 2021, the Veteran did not meet the schedular requirements for a TDIU, and the evidence does not otherwise demonstrate that he was unable to follow or maintain a substantially gainful occupation due to his service-connected disabilities. Accordingly, referral for extraschedular consideration for a TDIU prior to March 8, 2021 is not warranted. VA granted the Veteran service connection and a 50 percent rating for a depressive disorder effective from March 8, 2021. From that date the Veteran has met the schedular criteria for TDIU. In addition to the 50 percent rating for a depressive disorder he has a 40 percent rating for lumbar spine arthritis, a 10 percent rating for tinnitus, a 10 percent rating for right lower extremity peripheral neuropathy and a 10 percent rating for left lower extremity peripheral neuropathy. His total combined rating is 80 percent. See 38 C.F.R. § 4.25. The Board recognizes that the Veteran now has a high rating due to his service-connected disabilities and that a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. However, the evidence of record does not indicate that the Veteran is unemployable due to his service-connected disabilities. To the contrary, the evidence confirms that the Veteran is employable. This is shown by the medical records dated in October 2020 and May 2021 that indicate that he is currently employed. A VA Form 27-0820 notes that in October 2021 the Veteran informed VA that he continued to be employed and that he was not ready to stop working. The evidence does not show that the Veteran has been unable to maintain substantially gainful employment due to his service-connected disabilities at any time during the appeal period. Therefore, the preponderance of the evidence is against the Veteran's claim and a TDIU is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.