Citation Nr: 21020961 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-50 293 DATE: April 8, 2021 ORDER Prior to January 21, 2020, an initial compensable rating for allergic rhinitis is denied. From January 21, 2020, an initial rating in excess of 10 percent for allergic rhinitis is denied. Prior to January 9, 2017, an initial compensable rating for sinusitis is denied. From January 9, 2017, an initial rating in excess of 10 percent for sinusitis is denied. FINDINGS OF FACT 1. For the course of the claim prior to January 21, 2020, the Veteran’s allergic rhinitis has not been manifested by greater than 50 percent obstruction of nasal passage on both sides, complete obstruction on one side, or nasal polyps. 2. From January 21, 2020, the Veteran’s allergic rhinitis has not been manifested by nasal polyps. 3. For the course of the claim prior to January 9, 2017, the Veteran’s sinusitis has not been manifested by one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting; or sinus surgery. 4. From January 9, 2017, the Veteran’s sinusitis has not been manifested by three or more incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment; more than six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting; or sinus surgery. CONCLUSIONS OF LAW 1. Prior to January 21, 2020, the criteria for an initial compensable rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6522 (2020). 2. From January 21, 2020, the criteria for an initial disability rating in excess of 10 percent for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6522 (2020). 3. Prior to January 9, 2017, the criteria for an initial compensable rating for sinusitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6513 (2020). 4. From January 9, 2017, the criteria for an initial rating in excess of 10 percent for sinusitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6513 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In November 2019, the Board remanded these matters for additional evidentiary development. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Service connection for allergic rhinitis and sinusitis were established in an April 2014 rating decision, which assigned initial noncompensable ratings for allergic rhinitis and sinusitis under Diagnostic Code 6522 and Diagnostic Code 6513, respectively, effective July 18, 2013. In July 2014, the Veteran timely appealed the decision and requested higher initial ratings. An August 2016 decision continued the noncompensable ratings. In a May 2018 decision, the RO assigned an initial 10 percent rating for sinusitis, effective January 9, 2017. In a July 2020 rating decision, the RO assigned an initial 10 percent rating for allergic rhinitis, effective January 21, 2020. The Board notes that the Veteran is separately rated for her service-connected bronchial asthma, which is rated 30 percent disabling throughout the period on appeal. Thus, symptomatology associated with the Veteran’s asthma cannot be considered in evaluating the service-connected allergic rhinitis and sinusitis as such would constitute pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). 1-2. Entitlement to an increased initial rating for allergic rhinitis, currently rated as noncompensable prior to January 21, 2020, and 10 percent thereafter The Veteran asserts, in essence, that a higher initial rating is warranted for her allergic rhinitis because her symptoms have progressively worsened and are manifested by nasal obstruction/blockage in both nostrils, nasal polyps that cover over 75 percent of her inner nostrils, and a deviated nasal septum; and because she uses daily medications to control her symptoms. See July 2014, September 2014, October 2016 and September 2020 statements. At the May 2019 Board hearing, the Veteran additionally asserted that the medical evidence supports a 30 percent rating because it shows nasal polyps dating to 2003; or, alternatively, supports a 10 percent rating because it shows a deviated septum that causes nasal blockage on one side. She asserted she has been treated with corticosteroids since 2002, which cause her nasal polyps to diminish and reappear. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6522. A maximum 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. Id. After reviewing the record, including the medical evidence and lay statements, the Board finds that the preponderance of evidence is against assigning an initial rating in excess of those currently assigned for allergic rhinitis. The medical evidence in this case consists of January 2014, January 2017, January 2020 and September 2020 VA examination reports, and VA and private treatment records. During a January 2014 VA examination, the examiner diagnosed allergic rhinitis. The Veteran reported she was first diagnosed with rhinitis in the 1980’s with symptoms of congestion, runny nose and occasional headaches. Physical examination showed no evidence of 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side, or nasal polyps due to rhinitis. There was no evidence of permanent hypertrophy of the nasal turbinate, granulomatous conditions, deviated nasal septum due to trauma or other conditions. The VA examiner noted that the results of a January 2014 sinus x-ray were normal. During a January 2017 VA examination, the examiner diagnosed non-allergic rhinitis and deviated nasal septum. The Veteran reported a history of chronic, non-allergic rhinitis for at least 5 or 6 years and left nasal deviated septum. She reported that her symptoms worsen when working with clients as a therapist at a hospital and that she uses over-the-counter and prescription medications to control her symptoms. Physical examination showed no evidence of 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side due to the rhinitis or due to the deviated septum, or nasal polyps. It also did not show permanent hypertrophy of the nasal turbinate, granulomatous conditions or other conditions. Although the examiner noted nasal polyps by history, he indicated that an August 2016 nose endoscopy did not show polyps and there was no prior surgery. During a January 2020 VA examination, the examiner diagnosed allergic rhinitis. The Veteran reported worsening symptoms of sneezing, headaches, cough and dry mouth and the use of current medications to control her symptoms. Physical examination showed greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis; it did not show complete obstruction on one side or nasal polyps due to rhinitis. It also did not show permanent hypertrophy of the nasal turbinate, granulomatous conditions, or other conditions. During a September 2020 VA examination, the examiner diagnosed allergic rhinitis. The Veteran reported progressively worsening symptoms in the last 4 to 5 years, which she reported as running/watery eyes, dry throat, running nose, itchy ears, post-nasal drip, burning/itching irritation in her ears and sinus headaches when exposed to allergens. She reported she uses prescription and over-the-counter medications to control her symptoms. Physical examination showed no evidence of 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side, or nasal polyps due to rhinitis; it showed permanent hypertrophy of the nasal turbinates. To merit the assignment of a 10 percent or higher rating for allergic rhinitis for the course of the claim prior to January 21, 2020, the objective evidence must show greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side (10 percent rating), or nasal polyps (30 percent rating). However, in this case, the January 2014 and January 2017 VA examiners specifically indicated that there was not greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side due, or nasal polyps. While treatment records prior to January 21, 2020 document complaints of stuffiness and congestion, they do not document any finding of greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. For example, treatment records in April 2016, March 2017 and July 2018 indicate no nasal blockage or nasal discharge and a normal nasal cavity on physical examination. A February 2019 treatment record notes the Veteran reported her allergies were acting up with drainage; however, there was no facial or sinus pain on examination, and a March 2019private treatment record one month later notes no head or otolaryngology symptoms. The first objective evidence of greater than 50 percent obstruction of the nasal passage on both sides is the January 2020 VA examination. Thus, for the course of the claim prior to January 21, 2020, the weight of the evidence does not show greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side, or nasal polyps. Thus, an initial compensable rating for allergic rhinitis is not warranted prior to January 21, 2020. From January 21, 2020, the Board further finds that an initial rating higher than 10 percent is not warranted because the medical evidence does not document nasal polyps, nor are nasal polyps documented by objective evidence at any point during the course of the claim. The January 2014, January 2017, January 2020, and September 2020 VA examiners indicated there was no evidence of current nasal polyps. While a July 2016 medical treatment record shows referral for a computed tomography (CT) sinus scan based on a history of polys and a provisional diagnosis of nasal polyps, the subsequently performed July 2016 sinus x-ray and August 2016 endoscopy indicated no evidence of nasal polyps, and no evidence of polyps on physical examination is noted in an August 2016 private treatment record. The January 2017 VA examiner noted a history of nasal polyps but concluded that nasal polyps were not shown during physical examination or on the August 2016 nasal endoscopy. While the September 2020 VA examiner noted permanent hypertrophy of the nasal turbinates, the Board finds this finding is consistent with the currently-assigned 10 percent rating from January 21, 2020, particularly given the September 2020 VA examiner did not find greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side, or nasal polyps. Thus, the preponderance of evidence is against assigning an initial rating in excess of 10 percent from January 21, 2020. The Board has considered the Veteran’s assertions that she was diagnosed with or referred for nasal polyps on both sides of her nostrils dating to 2003; has chronic nasal passage blockage which limits her nasal breathing and obstructs 75 percent of her inner nostrils; and has been prescribed corticosteroids that cause her nasal polyps to appear and diminish over the years. The Board also acknowledges the lay statements from family members and a co-worker submitted in October 2016, stating they observed the Veteran’s allergy symptoms and use of medications and that she is sensitive to smells, aerosol spray and chemicals. However, as discussed above, while the medical evidence shows referral for diagnostic testing based on a history of nasal polyps, the objective test results, and physical examinations since the July 2015 claim for service connection show no evidence of nasal polyps. The medical evidence also does not show obstruction of greater than 50 percent of the nasal passage of both sides prior to the January 21, 2020 VA examination. Additionally, although the evidence documents the use of prescription and over-the-counter medications, including fluticasone, azelastine, cetirizine, Claritin, Zyrtec and nasal rinses, even considering the ameliorating effects of these medications, the competent and probative evidence of record does not document or otherwise suggest that corticosteroids have reduced nasal obstruction or nasal polyps. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). The Board finds the medical evidence, to include the diagnostic evidence, to be of greater probative value as to the nature and severity of the Veteran’s allergic rhinitis than the lay statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran’s testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). While the Veteran submitted an internet article that discusses nasal polyps in support of her claim, the article is not specific to the Veteran or her medical history or provide objective evidence pertinent to the allergic rhinitis. As such, the article is not afforded probative value. The Board finds the VA examination reports and medical treatment records to be significantly more probative than the lay assertions and article submission. In sum, the preponderance of evidence weighs against assigning an initial noncompensable rating for allergic rhinitis for the course of the claim prior to January 21, 2020, or an initial rating in excess of 10 percent thereafter, and the claim for a higher initial rating is denied. 3-4. Entitlement to an increased initial rating for sinusitis, currently rated as noncompensable prior to January 9, 2017, and 10 percent thereafter The Veteran asserts, in essence, that a higher initial rating is warranted for her service-connected sinusitis because she suffers from chronic sinusitis and sinus infections, for which she has sought treatment two to three times per year for decades; and uses over-the-counter and prescription medications. See July 2014, September 2014 and September 2020 statements. At the May 2019 Board hearing, the Veteran testified that she experiences incapacitating episodes of sinusitis that occur at least 6 to 8 times per year manifested by sinus infections and symptoms of runny nose, throbbing headaches between her eyebrows and the bridge of the nose, itching in her ears, dizziness, vertigo, slight nausea, nasal congestion and discolored nasal discharge. She stated that she initially self-treats her sinus infections and sinus pressure symptoms with over-the-counter pain medication, nasal sprays, decongestants, and corticosteroids and seeks medical care when it continues beyond a normal viral infection. She further asserted in statements on appeal and at the Board hearing that she makes adjustments to her work environment to mitigate the smell of fumes, lotions or perfume that may aggravate her rhinitis and sinusitis symptoms. The Veteran’s sinusitis has been evaluated under the criteria set forth in 38 C.F.R. § 4.97, Diagnostic Code 6513, which provides, in pertinent part, a 10 percent rating for one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting; a 30 percent rating for three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting; and a 50 percent rating following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6513. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, Note. After reviewing the record, including the medical evidence and lay statements, the Board finds that the preponderance of evidence is against assigning an initial rating in excess of those currently assigned for sinusitis. The medical evidence in this case consists of January 2014, January 2017, January 2020 and September 2020 VA examination reports and VA and private medical treatment records. During a January 2014 VA examination, the examiner diagnosed recurrent sinusitis but did not find a chronic sinusitis condition. The examiner noted the Veteran did not have any non-capacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months; any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months; and no sinus surgery. He also indicated the Veteran did not currently have any findings, signs or symptoms of episodes of sinusitis, near constant sinusitis, headaches, pain and tenderness of the affected sinus, purulent discharge or crusting. A January 2014 sinus x-ray revealed normal findings. During a January 2017 VA examination, the examiner indicated a diagnosis of para-sinusitis. The examiner noted the Veteran had 4 non-capacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months, which the examiner characterized as episodes of sinusitis, chronic nasal congestion, and post-nasal drip. He indicated the Veteran did not currently have any findings, signs or symptoms of near constant sinusitis, headaches, pain and tenderness of the affected sinus, purulent discharge, or crusting. The examiner noted the Veteran did not have any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months, or sinus surgery. A July 2016 sinus CT scan showed mild chronic sinus disease, no acute sinusitis and left nasal deviated septum with a prominent bony spur projecting into the left middle meatus. During a January 2020 VA examination, the examiner did not find a diagnosis of sinusitis or evidence of sinusitis. He noted that a January 2020 sinus x-ray showed the paranasal sinuses are clear throughout with intact mucosal and bony margins. The examiner did not indicate any findings, signs or symptoms of episodes of sinusitis, near constant sinusitis, headaches, pain and tenderness of the affected sinus, purulent discharge or crusting. During a September 2020 VA examination, the examiner diagnosed chronic sinusitis and noted that chronic sinusitis was detected only by imaging studies. The examiner noted the Veteran did not have any non-capacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months; any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months; and no sinus surgery. He indicated the Veteran did not currently have any findings, signs or symptoms of episodes of sinusitis, near constant sinusitis, headaches, pain and tenderness of the affected sinus, purulent discharge or crusting. The examiner noted that the July 2016 sinus CT scan showed mild chronic sinus disease, no acute sinusitis and left nasal deviated septum with a prominent bony spur projecting into the left middle meatus. He noted that the sinusitis diagnosis had progressed from sinusitis to chronic sinusitis because the sinusitis had caused permanent changes in the sinus cavities. To merit the assignment of a 10 percent rating, the evidence must show 1 to 2 incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment; or 3 to 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. See 38 C.F.R. § 4.97, Diagnostic Code 6513. However, in this case, prior to January 9, 2017, the evidence does not support such findings. The January 2014 VA examiner found no evidence of any incapacitating or non-incapacitating episodes of sinusitis, and the January 2014 sinus x-ray revealed normal findings. Although a July 2016 private treatment record notes treatment for a sinus infection, a medical treatment record two months prior in April 2016 and one month later in August 2016 shows no complaints of sinus tenderness, headaches, sinus pain, pressure or infection, and the weight of the medical evidence does not otherwise show 1 or 2 incapacitating or 3 to 6 non-incapacitating episodes of sinusitis. Thus, a compensable rating prior to January 9, 2017, is not warranted. To merit the assignment of a 30 percent or higher rating for the period on appeal from January 9, 2017, the evidence must reflect three or more incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment; or more than six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting; or sinus surgery. However, in this case, the evidence does not show such findings. The currently 10 percent rating from January 9, 2017 is based on the January 2017 VA examiner’s finding of 4 non-capacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months, which were noted as episodes of sinusitis, chronic nasal congestion and post-nasal drip. The January 2020 and September 2020 VA examiners did not find any such incapacitating or non-capacitating episodes of sinusitis. In fact, the January 2020 VA examiner did find any objective evidence of sinusitis and none was revealed during January 2020 sinus x-ray. While the September 2020 VA examiner noted the sinusitis had progressed from sinusitis to chronic sinusitis due to permanent changes in the sinus cavities, the examiner did not find any incapacitating or non-incapacitating episodes of sinusitis to warrant a higher rating. VA and private treatment records from January 9, 2017 to the present show findings consistent with those noted on the January 2017, January 2020 and September 2020 VA examination reports. A May 2019 private treatment record notes a single prescription for antibiotics to treat acute maxillary sinusitis. Nonetheless, private treatment records also show the Veteran denied sinus tenderness during medical treatment in March 2017; denied headaches, sinus pain, dizziness and sinus tenderness during medical treatment in July 2018; denied head or otolaryngology symptoms during medical treatment in March 2019; and denied headaches during medical treatment in November 2019. See March 2017, July 2018, March 2019 and November 2019 private treatment records. While the Veteran is competent to report headaches, sinus pain and pressure, and that she has observed discolored nasal discharge, the medical evidence does not show findings consistent with these observations. See Madden v. Gober, 125 F.3d at 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Purulent is defined as consisting of or containing pus. See Dorland’s Illustrated Medical Dictionary 1391 (28th ed. 1994). However, all four VA examiners indicated that there was no discharge or crusting on objective examination, and purulent discharge or crusting is not reflected on VA and private treatment records. Further, there is no medical evidence of sinus surgery to warrant a 50 percent rating, nor has the Veteran asserted such. Thus, from January 9, 2017, the Board finds the record does not demonstrate findings or symptomatology to warrant an initial rating in excess of 10 percent. In sum, the preponderance of competent and probative evidence is against assigning an initial compensable rating prior to January 9, 2017; and in excess of 10 percent rating thereafter, and the claim for a higher initial rating for sinusitis is denied. With respect to the service-connected allergic rhinitis and sinusitis, the Board has considered whether a higher initial rating is warranted under other diagnostic codes relating to diseases of the nose but finds that none apply in this case. The Veteran’s service-connected bronchial asthma is separately rated as 30 percent disabling under Diagnostic Code 6601 throughout the claim period. Thus, a separate rating for symptoms attributable to bronchial asthma is not available. Additionally, as noted by the VA examiners, there is no evidence of loss of part of the nose or nose scars; laryngitis; total laryngectomy; aphonia; stenosis of larynx; injuries to pharynx; bacterial rhinitis; or granulomatous rhinitis. Thus, a higher rating is not available under Diagnostic Codes 6504, 6515, 6516, 6518-6524. In sum, the preponderance of evidence is against assigning initial ratings in excess of those currently assigned for allergic rhinitis and sinusitis, and the claims for higher initial ratings are denied. In reaching these determinations, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.