Citation Nr: 21009177 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-15 886A DATE: February 19, 2021 ORDER An initial compensable rating, from July 19, 2010 to September 15, 2014, and a rating in excess of 10 percent, from September 16, 2014 to the present, for allergic rhinitis, is denied. FINDINGS OF FACT 1. For the period from July 19, 2010 to September 15, 2014, the Veteran's allergic rhinitis has not resulted in polyps or greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. 2. For the period from September 16, 2014 to the present, the Veteran's allergic rhinitis manifested as, at worst, greater than 50 percent obstruction of nasal passages on both sides and complete obstruction on one side, without polyps. CONCLUSIONS OF LAW 1. For the period from July 19, 2010 to September 15, 2014, the criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Code (DC) 6522. 2. For the period from September 16, 2014 to the present, the criteria for a rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.96, 4.97, DC 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1976 to March 1979, from September 1979 to July 1984, and from April 1998 to May 2010. This matter was previously before the Board of Veterans’ Appeals (Board) in December 2019 when the issue of an initial increased rating for allergic rhinitis was remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). In all claims for increased ratings, the Veteran is presumed to be seeking the maximum possible evaluation; 100 percent compensation for their disability. See A.B. v. Brown, 6 Vet. App. 35 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ C.F.R. 3.102, 4.3. An initial compensable rating, from July 19, 2010 to September 15, 2014, and a rating in excess of 10 percent, from September 16, 2014 to the present, for allergic rhinitis, is denied. The Veteran contends that symptoms of his service-connected allergic rhinitis are worse than that which is contemplated by his noncompensable rating, from July 19, 2010 to September 15, 2014, and 10 percent rating, from September 16, 2014 to the present. Under DC 6522, allergic rhinitis with no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. 38 C.F.R. § 4.97. A 30 percent evaluation is assigned when polyps are present. Id. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Veteran was afforded a VA examination in January 2013. A diagnosis of allergic rhinitis was noted. The examiner noted that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. Complete obstruction on one side due to rhinitis was denied. Permanent hypertrophy of the nasal turbinates was denied. No nasal polyps were noted. No history of any granulomatous conditions was noted. No larynx or pharynx conditions were noted. No history of deviated septum was noted. No functional impact was indicated as due to allergic rhinitis. The Veteran was afforded a VA examination in September 2014. A diagnosis of allergic rhinitis was noted. The examiner noted that the Veteran has greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. However, complete obstruction on one side due to rhinitis was denied. Permanent hypertrophy of the nasal turbinates was denied. No nasal polyps were noted. No history of any granulomatous conditions was noted. No larynx or pharynx conditions were noted. No history of deviated septum was noted. No functional impact was indicated as due to allergic rhinitis. The Veteran was afforded a VA examination in August 2015. A diagnosis of allergic rhinitis was noted. The examiner noted that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. Complete obstruction on one side due to rhinitis was denied. Permanent hypertrophy of the nasal turbinates was denied. No nasal polyps were noted. No history of any granulomatous conditions was noted. No larynx or pharynx conditions were noted. No history of deviated septum was noted. No functional impact was indicated as due to allergic rhinitis. An October 2015 VA medical record includes an analysis of a September 2015 Maxillofacial CT scan, which indicated chronic allergic rhinosinusitis with possible polyposis. In a June 2019 Board hearing, the Veteran stated that his rhinitis condition has worsened since his last VA examination in September 2014. Pursuant to the December 2019 Board remand, the Veteran was afforded a VA examination in December 2020. A diagnosis of allergic rhinitis was noted. The examiner noted that the Veteran has greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. Complete obstruction on the right side due to rhinitis was noted. Permanent hypertrophy of the nasal turbinates was noted. No nasal polyps were noted. No history of any granulomatous conditions was noted. No larynx or pharynx conditions were noted. No history of deviated septum was noted. In terms of functional impact, it was noted that the Veteran’s chronic rhinorrhea is distracting, causes frequent interruption of sleep due to regular coughing, and renders complex work tasks difficult due to poor cognitive functioning from lack of sleep. For the period from July 19, 2010 to September 15, 2014, the record does not show that the Veteran’s allergic rhinitis manifested as greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side or resulted in polyps. Thus, a compensable rating is not warranted for allergic rhinitis under the VA Rating Schedule, for the period from July 19, 2010 to September 15, 2014. For the period from September 16, 2014 to the present, the evidence shows that the Veteran’s allergic rhinitis manifested as, at worst, greater than 50 percent obstruction of the nasal passage on both sides, and complete obstruction on the right side. The evidence also does not show that the Veteran’s allergic rhinitis resulted in polyps during the period. Thus, a higher, 30 percent rating, is not warranted for allergic rhinitis under the VA Rating Schedule, for the period from September 16, 2014 to the present. Extra-schedular consideration is also not warranted at any time during the period on appeal. In determining whether an extra-schedular evaluation should be considered, it must first be considered whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun, 22 Vet. App. at 115. If there is an exceptional or unusual disability picture, the second consideration is whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for an extra-schedular evaluation. However, throughout the entire appeal period, the Veteran’s symptoms do not appear to result in marked interference with employment or frequent periods of hospitalization. In fact, the record does not indicate any hospitalizations due to allergic rhinitis. The January 2013, September 2014, and August 2015 VA examiners all noted no functional impact due to allergic rhinitis. The December 2020 VA examiner noted that the functional impact of the Veteran’s condition is that it is distracting and causes difficulty sleeping, which in turn causes difficulty engaging in complex work tasks. However, there is no indication that the Veteran’s work has been impacted, that he has missed work, or that he is unable to work such as to rise to the level of marked interference with employment due to his allergic rhinitis. Thus, referral for extra-schedular consideration is not warranted under Thun at any time during the period on appeal. In conclusion, for the period from July 19, 2010 to September 15, 2014, the Veteran's allergic rhinitis has not resulted in polyps or greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side, and for the period from September 16, 2014 to the present, the Veteran’s allergic rhinitis has not resulted in polyps. Therefore, a compensable rating for allergic rhinitis, from July 19, 2010 to September 15, 2014, and in excess of 10 percent, from September 16, 2014 to the present, is not warranted and, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.