Citation Nr: 21020687 Decision Date: 04/07/21 Archive Date: 04/07/21 DOCKET NO. 14-18 221 DATE: April 7, 2021 ORDER Entitlement to an initial compensable rating for allergic rhinitis, prior to October 2, 2017, is denied. A 30 percent disability rating for allergic rhinitis is granted from October 2, 2017, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to October 2, 2017, symptoms of the Veteran’s allergic rhinitis have most nearly approximated 50 percent or less obstruction of the bilateral nasal passages without polyps. 2. Since October 2, 2017, the Veteran’s allergic rhinitis has been manifested with polyps, greater than 50 percent obstruction of nasal passage on both sides, and complete obstructions of both passages. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for allergic rhinitis, prior to October 2, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code (DC) 6522. 2. The criteria for a 30 percent rating, from October 2, 2017, for rhinitis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.76, 4.77, 4.79, DC 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to January 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Appeals (VA) Regional Office (RO) where the Veteran was awarded a zero percent, noncompensable rating for his rhinitis, effective January 10, 2007. At the outset, the Board notes the following history. The Veteran appeared before a Veterans Law Judge (VLJ) in August 2017. See August 2017 Transcript. The Veteran then appeared before a VLJ who is no longer with the Board. See October 2017 Transcript. The transcripts of these hearings have been associated with the claims file. Under the legacy appeals system, a VLJ who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2018). Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. 38 U.S.C. § 7102 (a). Therefore, when a Veteran has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, as they have in this legacy appeal, a third VLJ is assigned to the panel after the second Board hearing has been held. 38 C.F.R. § 20.707 requires that a Veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2011). As noted above, the Veteran testified at two hearings before two different VLJs concerning the issue on appeal. In June 2018, the Board contacted the Veteran to clarify if the Veteran wanted an opportunity to appear before another VLJ before proceeding to a decision. See June 2018 BVA Correspondence. Later in June 2018, the Veteran elected to waive his right to appear at an additional hearing before a third VLJ and requested that the Board consider his case on the evidence of record. See June 2018 Veteran Correspondence. Additionally, the Veteran contacted VA in November 2020. There, the Veteran stated he would like the Board to continue with his appeal without another hearing. See November 2020 VA Form 21-0820 (Report of General Information). Finally, in a December 2020 letter, the Board informed the Veteran that the October 2017 hearing VLJ is no longer employed with the Board. The Board further informed the Veteran of his right to request another Board hearing or alternatively, to waive this right. The letter informed the Veteran he had 30 days from the date of the letter to return the letter with his decision and was further informed that if he did not respond, the Board would assume that he did not want another hearing. The record reflects that there was no reply. Given that the Veteran has had a hearing before two of the members of the panel and waived his right to a hearing before the third member of the panel, the Board finds that there is no Arneson-related impediment to issuing the decision herein and will proceed with adjudication of the claim. This case was previously before the Board in August 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development, to include scheduling the Veteran for another examination. The record reflects than an examination was scheduled, and the Veteran reported. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In January 2019, the RO granted a 30 percent rating, effective September 21, 2018 (as reflected in a January 2019 rating decision), but denied entitlement to a compensable rating prior that date (as reflected in an April 2020 supplemental statement of the case (SSOC)). However, as that award did not constitute a complete grant of the benefit sought on appeal, and the Veteran has not indicated satisfaction with the assigned rating, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-9 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Entitlement to a higher rating for rhinitis The Veteran contends that the severity of his rhinitis symptoms warrants a compensable rating. See May 2014 VA Form 9; April 2013 VA Form 21-4138. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Under Diagnostic Code 6522, allergic rhinitis will be rated as 10 percent disabling when it is manifested by a greater than fifty percent obstruction of both nasal passages or complete obstruction of one nasal passage, without polyps. A 30 percent disability rating is the maximum available rating and is warranted when polyps are present. 38 C.F.R. § 4.97, Diagnostic Code 6522. 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. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the July 2012 VA examination report, the examiner noted the Veteran’s rhinitis, but indicated that the Veteran did not have obstruction greater than 50 percent in both nasal passages and there was no complete obstruction in one passage due to rhinitis. See July 2012 VA Examination. The Veteran was afforded another VA examination in January 2013. The examiner noted the Veteran’s rhinitis but once again opined that he did not have obstruction greater than 50 percent in both nasal passages and there was no complete obstruction in one nasal passage. See January 2013 VA Examination. in February 2016, imaging of the Veteran’s sinuses was conducted. The imaging report reflects that the Veteran’s sinuses were clear, with no osseous lesions detected. See February 2016 T.V. Imaging Report. The Veteran also underwent another VA examination in February 2016. The examination report noted that there was no complete obstruction of one nasal passage due to rhinitis; there was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis; and that there were no nasal polyps. See February 2016 VA Examination. During the Veteran’s August 2017 hearing, he stated that he has been had rhinitis issues for over 50 years and his symptoms were not improving. Moreover, he testified that he uses nasal spray as well as nasal drops and that his symptoms worsen in the spring and fall. In addition, he asserted that sometimes he cannot smell anything except gasoline and that he has lost 30 pounds because he cannot taste food. On October 2, 2017, the Veteran underwent private imaging of his sinuses. The imaging report reflects there was mild mucosal thickening within the left maxillary sinus; minimal mucosal thickening lateral to the maxillary sinus ostia bilaterally which remains patent; mucous retention cyst or polyp within the right maxillary sinus measuring 7mm x 7mm x 8mm; there was minimal mucosal thickening within the sphenoid sinuses bilaterally and left ethmoid sinus; and left concha bullosa. See H.S. Imaging October 2017 Report. The Veteran appeared before another VLJ in October 2017. At his Board hearing, the Veteran explained that he has been receiving medical treatment for his disability from the VA since 2013. Moreover, he stated that the prescribed dosages have not been increased but a medication was added and that he has not had surgery for his condition. In addition, he contended that his symptoms have worsened in severity as he now has symptoms all the time, rather than just during the spring and fall and that a doctor informed him that he has nasal polyps and nasal blockage. The report of an October 2018 VA examination reflects that there was greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis; the absence of complete obstruction of either passage due to rhinitis; no permanent hypertrophy of the nasal passages; nasal polyps were present; and no granulomatous conditions. October 2018 VA Examination. More recently, the Veteran underwent a VA examination in November 2019. The examiner’s report reflects that there was greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis; complete obstruction of both sides due to rhinitis; permanent hypertrophy of the nasal turbinates; no nasal polyps; and no granulomatous conditions. However, the examiner noted that she was unable to determine the presence of polyps given the complete obstruction of turbinates, erythematous mucosa with punctate blood vessels, clear secretions, and boggy edema of septum. November 2019 VA Examination. Upon review of the relevant evidence, the Board finds that the evidence of record is against a finding for a compensable rating for rhinitis, prior to October 2, 2017. Specifically, VA examination reports dated in July 2012, January 2013, and February 2016 note an absence of any rhinitis symptoms manifested by greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side; likewise, these reports do not evidence any nasal polyps. In addition, the February 2016 private treatment imaging report reflects that the Veteran’s sinuses were clear. For the foregoing reasons, an initial compensable rating for allergic rhinitis, prior to October 2, 2017, is not warranted. As the preponderance of the evidence is against higher ratings, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. Private treatment record imaging indicates that the Veteran had nasal polyps from October 2, 2017, which supports the assignment of a 30 percent rating for the Veteran’s rhinitis from that date. In addition, the more recent VA examination reports show that the Veteran’s rhinitis has been manifested by obstruction greater than 50 percent of both passages due and complete obstructions of both passages. October 2017 private imaging noting the presence of polyps (which tends to support the Veteran’s assertions in his October 2017 Board hearing testimony that a doctor informed him he has polyps) together with subsequent VA examination reports evidencing greater than 50 percent obstruction of nasal passage on both sides, and complete obstructions of both passages, the Board is satisfied that the criteria for a 30 percent rating have been met from October 2, 2017. For the foregoing reasons, a 30 percent rating from October 2, 2017, but not earlier, is warranted for the Veteran’s rhinitis. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate 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.