Citation Nr: 21005458 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-05 627A DATE: February 1, 2021 ORDER For the period prior to November 21, 2016, a separate initial 30 percent rating for allergic rhinitis, effective September 8, 2010, is granted. For the period prior to June 9, 2017, an initial 30 percent rating for chronic sinusitis, effective September 8, 2010, is granted. FINDINGS OF FACT 1. Since the effective date of service connection, the Veteran’s allergic rhinitis has been manifested by nasal obstruction and objective evidence of polyps. 2. Since the effective date of service connection, the Veteran’s chronic sinusitis has been manifested by more than six non-incapacitating episodes of sinusitis a year involving headaches, pain, and purulent discharge. CONCLUSIONS OF LAW 1. The criteria for an initial separate 30 percent rating for allergic rhinitis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.96, 4.97, Diagnostic Code 6522. 2. The criteria for an initial 30 percent rating for chronic sinusitis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.96, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to August 2009. This matter is before the Board following his appeal of a November 2012 rating decision that was issued in January 2013. In September 2016, the Veteran testified before a Decision Review Officer (DRO) and in June 2020, he testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). Increased Ratings The Veteran contends that initial compensable ratings are warranted for his service-connected allergic rhinitis and sinusitis, each currently rated as 30 percent disabling. Specifically, he asserts that initial 30 percent ratings are warranted because his conditions have remained constant since service and because the same symptoms that warranted the 30 percent ratings from November 21, 2016 for allergic rhinitis and June 9, 2017 for sinusitis have been present since the September 8, 2010 effective date of service connection, when the conditions were initially rated jointly. Following a review of the record, the Board agrees and finds that separate initial 30 percent ratings are warranted for allergic rhinitis and sinusitis, each effective September 8, 2010. As the Veteran confirmed during his June 2020 Board hearing that he is not pursuing ratings higher than 30 percent for his allergic rhinitis and sinusitis, the Board will not address entitlement to even higher ratings. Turning first to the Veteran’s allergic rhinitis, for the period prior to November 21, 2016, the Veteran’s allergic rhinitis was rated as noncompensable in combination with his sinusitis. However, given evidence of chronic nasal obstruction and objective evidence of nasal polyps in service, the Board finds that the criteria for an initial 30 percent rating for allergic rhinitis are met from the effective date of service connection. 38 C.F.R. § 4.97, Diagnostic Code 6522. Specifically, service treatment records (STRs) and post-service treatment records show that the Veteran has had chronic nasal obstruction since the 1990s, including complete obstruction at times, and that just before separation from service in August 2009, nasal polyps were objectively shown on endoscopy. At that time, he was assessed to have chronic nasal congestion with nasal polyp, consistent with his more recent assessments such as noted in November 2016. The Board is cognizant that nasal polyps were not found on VA physical examination in October 2012. Nevertheless, the Board finds that finding to be of limited probative value given that no endoscopy was performed. In this regard, while no nasal polyps were found on physical examination in August 2009, a left nasal polyp was found on endoscopy at that time. Thus, it appears that the Veteran has nasal polyps that are present but may not be visible without the assistance of a scope. Accordingly, given evidence of allergic rhinitis with nasal polyps since at least August 2009, the Board finds that the criteria for an initial 30 percent rating are met. 38 C.F.R. § 4.97, Diagnostic Code 6522. Next, the Board also finds that an initial 30 percent rating is warranted for sinusitis, as the Veteran testified during his September 2016 DRO hearing that during and since service he experienced more than six non-incapacitating episodes of sinusitis a year (even daily episodes), which involved headaches, pain, and discharge, as well as one or two incapacitating episodes a year. 38 C.F.R. § 4.97, Diagnostic Code 6523. In addition to being consistent with the STRs and clinical evidence, the Veteran’s competent testimony regarding the nature of his sinus disability following service is medically supported by an October 2020 statement from a private otolaryngologist indicating that, based on his review of the Veteran’s medical records and his physical examination of the Veteran, the historical severity of the Veteran’s chronic sinusitis (and allergic rhinitis) remained relatively constant and persisted at the same level from the time of discharge from active duty in August 2009 to the June 2017 examination that provided the basis for assignment of a 30 percent rating effective June 9, 2017. In support of his opinion, the otolaryngologist pointed to the STRs showing evidence of severe chronic sinusitis that was refractory to medical management. Thus, given the foregoing, the Board finds that an initial 30 percent rating is also warranted for chronic sinusitis with more than 6 non-incapacitating episodes per year involving headaches, pain, and discharge. As a final matter, the Board observes that allergic rhinitis and sinusitis may have some overlapping symptoms, and that separate ratings are permitted under VA law only where not opposed to the rule against “pyramiding,” which precludes the evaluation of the same manifestation under separate diagnoses. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Under 38 C.F.R. § 4.96 there are provisions against separately evaluating certain co-existing respiratory conditions, but none apply here. And, as the Veteran has had two separate diagnoses since service and there is competent evidence of distinguishable symptomatology for separate ratings in this matter, the Board finds that separate ratings are permissible. 38 C.F.R. § 4.14. In sum, the Board concludes that separate initial 30 percent ratings are warranted for allergic rhinitis and sinusitis, each effective September 8, 2010. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.