Citation Nr: 21016190 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-46 338 DATE: March 22, 2021 ORDER Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a low back disability is denied. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a hearing loss disability is denied. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for serous otitis media is denied. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bronchial asthma is denied. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an umbilical hernia is denied. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral carpal tunnel syndrome (CTS) is denied. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and major depressive disorder (MDD) is denied. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral leg disability is denied. Entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis is denied. FINDINGS OF FACT 1. In an unappealed decision, dated September 2010, the AOJ denied the claim of service connection for a low back disability. 2. Evidence associated with the claims file after the September 2010 rating decision is cumulative, redundant and fails to raise a reasonable possibility of substantiating the claim on appeal. 3. In an unappealed decision, dated October 1978, the AOJ denied the claims of service connection for a hearing loss disability and serous otitis media. 4. Evidence associated with the claims file after the October 1978 rating decision is new but not material as it fails to raise a reasonable possibility of substantiating the claims on appeal. 5. In an unappealed decision, dated October 2009, the AOJ denied the claim of service connection for bronchial asthma. 6. Evidence associated with the claims file after the October 2009 rating decision is new but not material as it fails to raise a reasonable possibility of substantiating the claim on appeal. 7. In an unappealed decision, dated August 2003, the AOJ denied the claim of service connection for an umbilical hernia. 8. Evidence associated with the claims file after the August 2003 rating decision is new but not material as it fails to raise a reasonable possibility of substantiating the claim on appeal. 9. In an unappealed decision, dated September 2010, the AOJ denied the claim of service connection for bilateral carpal tunnel syndrome. 10. Evidence associated with the claims file after the September 2010 rating decision is new but not material as it fails to raise a reasonable possibility of substantiating the claim on appeal. 11. In an unappealed decision, dated April 2012, the AOJ denied the claim of service connection for major depression. 12. Evidence associated with the claims file after the April 2012 rating decision is new but not material as it fails to raise a reasonable possibility of substantiating the claim on appeal. 13. In an unappealed decision, dated September 2010, the AOJ denied the claim of service connection for a bilateral leg disability. 14. Evidence associated with the claims file after the September 2010 rating decision is new but not material as it fails to raise a reasonable possibility of substantiating the claim on appeal. 15. The Veteran’s allergic rhinitis did not result in three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment; or, more than six non-incapacitating episodes per year characterized by headaches, pain and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The September 2010 rating decision that denied entitlement to service connection for a low back disability, bilateral carpal tunnel syndrome and a bilateral leg disability was final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 2. New and material evidence has not been received since the September 2010 rating decision, thus the claims seeking service connection for a low back disability, bilateral carpal tunnel syndrome and a bilateral leg disability are not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The October 1978 rating decision that denied entitlement to service connection for a hearing loss disability and serous otitis media was final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 4. New and material evidence has not been received since the October 1978 rating decision, thus the claims seeking service connection for a hearing loss disability and serous otitis media are not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 5. The October 2009 rating decision that denied entitlement to service connection for bronchial asthma was final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 6. New and material evidence has not been received since the October 2009 rating decision, thus the claim seeking service connection for bronchial asthma is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 7. The August 2003 rating decision that denied entitlement to service connection for an umbilical hernia was final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 8. New and material evidence has not been received since the August 2003 rating decision, thus the claim seeking service connection for an umbilical hernia is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 9. The April 2012 rating decision that denied entitlement to service connection for major depression was final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 10. New and material evidence has not been received since the April 2012 rating decision, thus the claim seeking service connection for major depression is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 11. The criteria for a rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6599-6513 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from January 1971 to June 1978. This case comes before the Board on appeal of a September 2013 rating decision. The Board notes that as the scope of the Veteran’s claim of service connection for major depression encompasses other psychiatric disorders that have been raised by the record, such as depression and major depressive disorder (MDD), the Board has recharacterized the issue on appeal as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence Generally, a claim that has been denied in a final unappealed AOJ decision may not be reopened and readjudicated. 38 U.S.C. § 7105(c) (2012). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a low back disability At the outset, the September 2010 rating decision denied the Veteran’s claims of service connection for a low back disability, bilateral leg condition and bilateral CTS, was final. The Veteran failed to timely file a notice of disagreement (NOD) after receiving the September 2010 notification letter. Thus, the September 2010 rating decision became final. At the time of the September 2010 rating decision, the evidence of record consisted of the Veteran’s service treatment records (STRs), VA treatment records from January 1992 to September 2010, VA examination from September 2010, and the Veteran’s statements. In the September 2010 rating decision, the AOJ explained that the evidence failed to show that the condition was incurred in or aggravated by military service. Specifically, the AOJ stated that the Veteran’s STRs were negative for complaints, treatment or a diagnosis of a chronic low back disability during active duty service. Thus, the claim was denied. Since the September 2010 rating decision, the evidence received has been new but fails to raise a reasonable possibility of substantiating the claim on appeal. Specifically, the evidence showed that the Veteran had ongoing back pain and discomfort. However, the Veteran’s back condition was on record during the September 2010 rating decision. Likewise, of the evidence associated after September 2010, there are no records that show the Veteran had a chronic low back disability during service. Thus, the evidence is cumulative, redundant and fails to raise a reasonable possibility of substantiating the claim. The Board acknowledges the Veteran’s contentions that he complained of back pain during service as shown in several treatment notes. However, that evidence is not new and material as it was part of the record at the time of the AOJ decision. Moreover, the Veteran’s complaints of back pain were related to a viral syndrome, a cold, and residuals of his appendectomy. Accordingly, as the evidence received following the September 2010 rating decision is neither new nor material, the Veteran’s claim of service connection for a low back disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a hearing loss disability and serous otitis media Here, the October 1978 rating decision which denied the Veteran’s claims of service connection for a hearing loss disability and serous otitis media was final. The Veteran received notification of the rating decision in November 1978 but failed to timely file a notice of disagreement within a year of the notification. Thus, the October 1978 rating decision became final. At the time of the October 1978 rating decision, the evidence of record consisted of the Veteran’s STRs, personnel records, a VA examination and the Veteran’s application for compensation. In the October 1978 rating decision, the AOJ explained that the VA audio examination from September 1978 found that the Veteran’s hearing was within normal limits. Conversely, the AOJ stated that the Veteran had bilateral otitis media which required drainage in August 1977, but clinical examinations were silent as to further problems. Moreover, the AOJ explained that there were no residuals of serous otitis media on service separation or shown during the VA examination. Thus, the claims were denied. Since the October 1978 rating decision, evidence has been associated with the claims file that is new, as it was not before the AOJ during the October 1978 rating decision; however, the evidence is not material. Specifically, regarding otitis media, the evidence has shown that the Veteran was diagnosed with otitis media in May 2017. In the June 2017 VA examination, the examiner opined that the Veteran’s otitis media was less likely than not incurred in or caused by service or secondary to his allergic rhinitis. The examiner reasoned that the evidence is not supportive of recurrent or persistent otitis media. Records reviewed which included data from 1974 to present was silent for recurrent or persistent otitis media. The Veteran’s examination was normal with no evidence of retraction or healed perforation of the ears. Radiographs were absent of findings as related to mastoid inflammation. The examiner continued that ENT examination was negative for chronic ear disease. He stated that there was no supporting data for recurrent otitis media related to allergic rhinitis. The Board notes that although the evidence associated with the record after October 1978 is new, it is not material as it fails to raise the reasonable possibility of substantiating the claim. As discussed above, the Veteran’s otitis media resolved prior to discharge from service and he had not been diagnosed with otitis media again until November 1985, then again in May 2017, decades after his discharge from service. Furthermore, there is a competent, credible and highly probative medical opinion on record that fails to raise a reasonable possibility of substantiating the claim. Likewise, regarding the Veteran’s claim of hearing loss, the evidence shows that the Veteran does not have a hearing disability for VA purposes. At the outset, for VA compensation purposes, hearing loss disability is defined as: “when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. In this instance, in the June 2017 VA examination, the Veteran’s audiometric testing yielded the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 25 LEFT 15 15 20 20 25 Using the Maryland CNC Word list test, the Veteran’s speech recognition score was 100 percent bilaterally. Therefore, based on the latest VA examination, the Veteran does not have hearing loss disability for VA purposes. As such, the evidence fails to raise the possibility of substantiating the claim on appeal. Accordingly, as the evidence received following the October 1978 rating decision is new but not material, the Veteran’s service connection claims for a hearing loss disability and otitis media are not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bronchial asthma At the outset, the October 2009 rating decision which denied the Veteran’s claim of service connection for bronchial asthma, was final. The Veteran was notified of the AOJ decision in October 2009 but failed to timely file a notice of disagreement. Thus, the October 2009 rating decision became final. At the time of the October 2009 rating decision, the evidence of record consisted of the Veteran’s STRs, VA treatment records and the Veteran’s statements. In the October 2009 rating decision, the AOJ explained that although there was record of treatment in service for bronchial asthma, there was no permanent residual or chronic disability subject to service connection as shown by the service medical records or demonstrated by evidence following service. The AOJ continued that a record from June 1977, showed a diagnosis of asthma, but it also showed that the condition was temporary and not expected to exceed ninety days. The AOJ explained that the condition was acute and transitory as the STRs were negative for further complaints, treatment or a diagnosis for chronic manifestations of the condition during active duty service. Thus, the claim was denied. Since the October 2009 rating decision, the evidence associated with the record has been new but not material. Specifically, ongoing treatment records have been associated with the record that are new, as they were not before the AOJ prior to the October 2009 rating decision; however, the evidence has failed to show that the Veteran has a current diagnosis of bronchial asthma. The Veteran reported that he was diagnosed with asthma but there is no medical evidence to support his contention. Treatment records from October 2009 to present fail to show a diagnosis of bronchial asthma. See VA treatment records. As such, although the records associated with the claims file are new, they are not material, as the records fail to raise a reasonable possibility of substantiating the claim. Accordingly, as the evidence received following the October 2009 rating decision is new but not material, the Veteran’s claim of service connection for bronchial asthma is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 4. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an umbilical hernia Here, the August 2003 rating decision which denied the Veteran’s claim of service connection for an umbilical hernia was final. The Veteran received notification of the rating decision in August 2003 but failed to timely file a notice of disagreement. Thus, the rating decision became final. At the time of the August 2003 rating decision, the evidence consisted of statements from the Veteran, private treatment records, STRs, VA treatment records, a VA examination. In the August 2003 rating decision, the AOJ explained that the Veteran underwent umbilical hernia surgery in 1985, which was almost seven years after separation from active duty service. The AOJ continued that the Veteran suffered from an umbilical hernia after the surgery but that was unrelated to military service. The AOJ added that VA treatment records showed that the umbilical hernia surgery was performed in June 1985 and there was a notation that showed the Veteran had umbilical pain three to four years ago, which would be many years after separation from service. The AOJ concluded that service connection for umbilical hernia post-surgery was denied since the condition neither occurred in nor was caused by service. Since the August 2003 rating decision, the evidence associated with the record has been new, but not material to the issue on appeal. Specifically, the Veteran underwent a VA examination in April 2012, which was not before the AOJ in the August 2003 rating decision. Thus, it is new evidence. However, the VA examination is not material as it failed to raise the reasonable possibility of substantiating the claim. In the April 2012 VA examination, the Veteran reported that his umbilical hernia was secondary to constant sneezing from his nasal allergies. On examination, there was evidence of a small ventral hernia. The examiner opined that the Veteran’s umbilical hernia was less likely than not incurred in or caused by service or his service-connected rhinitis. The examiner reasoned that there was no pathophysiological relationship between rhinitis and umbilical hernia. Moreover, the evidence since August 2003 failed to show that the Veteran’s umbilical hernia condition was caused or incurred in service. The Veteran contends that his hernia was incurred while in active duty, but the evidence associated with the record since August 2003 does not support his contention. As such, although the records associated with the claims file are new, they are not material, as the records fail to raise a reasonable possibility of substantiating the claim. Accordingly, as the evidence received following the August 2003 rating decision is new but not material, the Veteran’s claim of service connection for an umbilical hernia is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 5. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral carpal tunnel syndrome (CTS) and bilateral leg disability As discussed above, the September 2010 rating decision, which among other issues, denied the claims of bilateral CTS and bilateral leg disability, was final. The Veteran received the notification of the decision but failed to timely file a notice of disagreement. At the time of the September 2010 rating decision, the evidence of record consisted of the Veteran’s service treatment records (STRs), VA treatment records from January 1992 to September 2010, VA examination from September 2010, and the Veteran’s statements. Regarding the Veteran’s bilateral CTS, the AOJ explained that the Veteran’s STRs were negative for complaints, treatment, or a diagnosis of the condition in a chronically manifested form during service, or to a compensable degree during the first year after separation from service. The AOJ stated that post-service treatment records failed to show that his condition manifested within a year of discharge. Similarly, the AOJ explained that the Veteran’s STRs were negative for complaints, treatment, or a diagnosis for chronic manifestations of a bilateral leg condition. Since the September 2010 rating decision, the evidence associated with the record is new but not material to the claims on appeal. Treatment records associated with the claims file after September 2010 are new, as they were not before the AOJ during the September 2010 rating decision. However, those records are not material because they fail to raise the reasonable possibility of substantiating the claims on appeal. The updated records failed to show that the Veteran’s bilateral CTS or bilateral leg condition was incurred during service or manifested within a year of his discharge. The treatment records showed that the Veteran suffered from his claimed conditions but there was no competent evidence that his conditions were related to service. As such, although the records associated with the claims file after September 2010 are new, they are not material, as the records fail to raise a reasonable possibility of substantiating the claims. Accordingly, as the evidence received following the September 2010 rating decision is new but not material, the Veteran’s claims of service connection for bilateral CTS and a bilateral leg disability are not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 6. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include depression In this instance, the April 2012 rating decision, which among other issues, denied the Veteran’s claim of service connection for depression, was final. The Veteran was notified of the decision in an April 2012 notification letter, but failed to timely file a notice of disagreement. Thus, the April 2012 rating decision became final. At the time of the April 2012 rating decision, the evidence of record consisted of the Veteran’s STRs, private treatment records, VA examinations and treatment records, and the Veteran’s claims. In the April 2012 notification letter, the AOJ explained that it reviewed the pertinent records including private treatment records which discussed the Veteran’s psychiatric condition, but the evidence did not show that his condition was incurred in or caused by service. Specifically, the AOJ stated that the Veteran’s STRs did not contain complaints, treatment, or a diagnosis of major depressive disorder or depression. Thus, the claim was denied. Since the April 2012 rating decision, the evidence associated with the claims file has been “new,” but not “material” to the claim on appeal. Treatment records since the April 2012 rating decision showed the Veteran had ongoing treatment for depression. In fact, in a June 2017 VA examination, the Veteran was diagnosed with alcohol induce mood disorder and unspecified neurocognitive disorder. During the examination the Veteran denied a mental health history. The Veteran had been seen since 2012 for major depression and alcohol induced mood disorder. Likewise, a 2012 treatment record showed that the Veteran had cognitive deterioration unspecified of approximately two-year evolution. The Veteran reported it as poor concentration and long-term and short-term memory deterioration. On examination, the Veteran endorsed symptoms of anxiety, nervousness, impairment in concentration, memory, difficulty handling simple tasks and difficulty handling complex tasks. After the conclusion of the examination, the psychiatrist remarked that the Veteran denied and service records were silent for any mental complaint, treatment or diagnosis prior, during, or post military service. The psychiatrist noted that the first mental evaluation, diagnosis and treatment was in 2012. The psychiatrist added that the Veteran’s diagnosis of major depression is not related to or aggravated by or secondary to active duty service or a service-connected disability. The Board notes that the evidence associated with the record since the April 2012 rating decision is new, as it was not before the AOJ in April 2012, but it is not material as it fails to raise a reasonable possibility of substantiating the claim on appeal. As discussed above, the Veteran’s psychiatric condition was first complained of and treated in 2012, decades after his discharge from service. Moreover, the Veteran denied having any mental complaints, treatment or a diagnosis prior to or during active duty service. Accordingly, as the evidence received following the April 2012 rating decision is new but not material, the Veteran’s claim of service connection for acquired psychiatric disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. In addition, codes ending in “99” are for all unlisted conditions. Here, the use of the Diagnostic Code 6599 refers to a rhinitis disability not specifically listed in the rating criteria which is rated analogous to a disability due to chronic sinusitis. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis Here, the Veteran contends that his service-connected allergic rhinitis warrants a rating in excess of 10 percent disabling. Based on the evidence, the Board disagrees. At the outset, the Veteran is rated at 10 percent disabling for allergic rhinitis under DC 6599-6513. The Veteran’s allergic rhinitis is rated by analogy under DC 6513 for maxillary chronic sinusitis. Additionally, the Board notes that DC 6522 provides disability ratings for allergic or vasomotor rhinitis. Under DC 6513 for sinusitis, a 10 percent disability rating is awarded for sinusitis manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is awarded for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent disability rating is awarded for sinusitis following radical surgery with chronic osteomyelitis, or manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis is one requiring bed rest and treatment by a physician. Id. Under DC 6522 for allergic rhinitis, a 10 percent disability rating requires either greater than 50 percent obstruction of nasal passage on both sides, or complete obstruction on one side. A 30 percent disability rating is warranted where there is evidence of polyps. 38 C.F.R. § 4.97. In this instance, in the April 2012 VA examination, the Veteran had congested turbinates with slight watery discharge. Paranasal sinus x-rays from April 3, 2012 was reported as clear paranasal sinuses, right-sided deviation of the nasal septum and turbinates appeared to be within normal limits. The examiner diagnosed the Veteran with very mild allergic rhinitis. The examiner remarked that the Veteran had very mild chronic allergic rhinitis as shown in the nasal examination and had a very good airway and turbinates appeared within normal limits except for slight congestion. Then, in a March 2013 VA examination, the Veteran’s diagnosis of allergic rhinitis was continued. The Veteran reported that his condition had become progressively worse over the years. He added that he was on immunotherapy. On examination, the examiner indicated that the Veteran’s ethmoid and maxillary were affected by his chronic sinusitis. The Veteran was shown to have headaches as associated with his chronic sinusitis. However, there was no evidence of pain and tenderness of affected sinus or purulent discharge or crusting. Likewise, the Veteran did not have a non-incapacitating episode of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past twelve months. The Veteran did not have any incapacitating episodes of sinusitis requiring prolonged antibiotics treatment in the past twelve months. There was no evidence of nasal surgery. Additionally, the examiner indicated that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was no evidence of complete obstruction on one side due to rhinitis. There was evidence of permanent hypertrophy of the nasal turbinates. However, there were no nasal polyps or granulomatous conditions. There was no evidence of chronic laryngitis or any other pharyngeal or laryngeal condition. There was no evidence of 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation or complete obstruction on one side due to traumatic septal deviation. The examiner noted that there were no other pertinent physical findings, complications, conditions, or signs or symptoms associated with the Veteran’s condition. Diagnostic testing revealed no frank polyps but mucosal thickening in both maxillary sinuses was mild and might have represented mild sinusitis. There was mild mucosal thickening in the ethmoid sinuses, but the frontal and sphenoid sinuses were clear. In a June 2017 VA examination, the Veteran’s diagnosis of allergic rhinitis was continued. On examination, the examiner indicated that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was no evidence of complete obstruction on either side due to rhinitis. There was evidence of permanent hypertrophy of the nasal turbinates. However, there were no nasal polyps or granulomatous conditions. Diagnostic testing revealed mucosal thickening in both maxillary sinuses was mild and might have represented mild sinusitis. There was mild mucosal thickening in the ethmoid sinuses, but the frontal and sphenoid sinuses were clear. In a January 2017 x-rays showed that the paranasal sinuses and mastoid antra were pneumatized. No air-fluid levels were observed. The nasal septum was slightly deviated to the right and mild to moderate enlargement/engorgement of the intranasal soft tissues was seen. In the November 2019 VA examination, the Veteran had nasal deviation and obstructive nasal turbinates. Diagnostic testing revealed mild mucoperiosteal thickening to the floor of the maxillary sinuses. Otherwise, a normal CT of the paranasal sinuses. Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran’s allergic rhinitis is not warranted. The Veteran’s condition did not result in three or more incapacitating episodes per year requiring prolonged antibiotic treatment; or, more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Likewise, there was no evidence of polyps or granulomatous rhinitis that would warrant a higher rating. Moreover, there was no evidence of laryngeal or pharyngeal condition. Lastly, the Board notes that the Veteran is separately rated for his loss of sense of smell as a condition of his allergic rhinitis. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.