Citation Nr: 21021004 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-51 034 DATE: April 9, 2021 ORDER A compensable rating for allergic rhinitis is denied. REMANDED The issue of entitlement to service connection for headaches, to include as secondary to service-connected allergic rhinitis and/or asthma, is remanded. FINDING OF FACT Throughout the appeal, the Veteran’s allergic rhinitis has been manifested by allergy symptoms including nasal congestion, rhinorrhea, nasal crustiness, sneezing, watery eyes, post nasal drip, allergic shiners, periodic nose bleeds, and intermittent decrease in sense of smell and taste, without obstruction greater than 50 percent of both nasal passages, complete obstruction on one side, or polyps. CONCLUSION OF LAW The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1982 to July 2002. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision. In September 2019, the Veteran and his spouse testified at a Board videoconference hearing; a transcript of the hearing is associated with the claims file. In December 2019, the Board granted service connection for bilateral pes planus and remanded the issue of entitlement to a compensable rating for allergic rhinitis to the agency of original jurisdiction (AOJ) for additional development. A June 2020 rating decision effectuated the Board decision and assigned a 50 percent rating for bilateral pes planus effective from the date the claim was received on February 19, 2014. Although the Veteran timely appealed the issue of service connection for headaches, testified about his headaches, and submitted medical evidence pertinent to that claim, the December 2019 Board decision inadvertently omitted that issue. The issue of service connection for headaches is addressed in the Remand section below. As a final introductory matter, the scope of the claim for a compensable rating for allergic rhinitis requires clarification. Shortly after his retirement from active duty Air Force service, the Veteran filed a claim for service connection for “allergic rhinitis/sinusitis” among other claimed disabilities. A March 2003 VA examination report reflects the examiner’s review of a recent VA computed tomography (CT) scan, which showed “clear well-aerated paranasal sinuses with no evidence of sinus disease.” The impression included allergic rhinitis. An April 2003 rating decision granted service connection for allergic rhinitis. In a May 2003 letter, the AOJ notified the Veteran of the decision and enclosed a copy of the decision. In May 2010, VA received the Veteran’s informal claim for service connection for a sinus disorder, claimed as incurred in and treated while on active duty. A June 2010 letter to the Veteran, which was copied to his former representative, reflects that the AOJ interpreted his claim as an increased rating for service-connected allergic rhinitis. Following a July 2010 VA examination to evaluate the current severity of his allergic rhinitis, an August 2010 rating decision continued the noncompensable rating previously assigned for “allergic rhinitis, claimed as sinus condition.” The AOJ notified the Veteran and his former representative of the decision the same month. On February 19, 2014, VA received an informal claim regarding multiple disabilities, including service connection for “chronic sinusitis/upper respiratory condition (extensive treatment for sinus condition while on active duty)” and “loss of sense of smell and taste secondary to chronic sinusitis.” On June 19, 2014, VA received the Veteran’s formal claim, including an increased rating for “allergic rhinitis, claimed as sinus condition” and service connection for loss of sense of smell and taste “secondary to allergic rhinitis, claimed as sinus condition” and/or secondary to extrinsic asthma. In addition to denying a compensable rating for service-connected “allergic rhinitis, claimed as sinus condition,” the October 2014 rating decision denied the claims for service connection for chronic sinusitis, headaches, and loss of sense of smell and taste. In June 2015, VA received a notice of disagreement (NOD) from the Veteran’s current representative on his behalf, disagreeing with the denial of service connection for migraine headaches and allergic rhinitis, although service connection had previously been established for allergic rhinitis. In August 2016, the AOJ issued a statement of the case (SOC), addressing the issues of the noncompensable rating for “allergic rhinitis, claimed as sinus condition” and service connection for headaches. In October 2016, the Veteran’s representative submitted a VA Form 9 (Appeal to the Board) on his behalf, seeking service connection for “headaches/migraines secondary to allergic rhinitis” and an increased rating for “allergic rhinitis (sinus condition).” To the extent that the Veteran and/or his representative has submitted evidence and argument related to sinusitis and loss of sense of smell and taste, those issues were separately addressed in the October 2014 rating decision. Neither the Veteran nor his representative initiated an appeal of those issues by submitting an NOD; those issues are not on appeal. Moreover, the September 2019 hearing transcript documents that the Veteran was advised that he may submit a claim for disabilities he believes are secondary to service-connected allergic rhinitis and/or asthma. The Veteran may file a Supplemental Claim and submit or identify evidence related to those issues. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. 1. A compensable rating for allergic rhinitis The Veteran believes a compensable rating is warranted for his service-connected allergic rhinitis. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Generally, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also for consideration in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Analysis in this decision has been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. The Veteran’s allergic rhinitis is rated as noncompensable under 38 C.F.R. § 4.97, Diagnostic Code 6522, which pertains to allergic or vasomotor rhinitis. Under these criteria, a 10 percent rating is assigned for rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side; a 30 percent rating is assigned for rhinitis with polyps. Diagnostic Code 6522 does not contain provisions for a zero percent rating. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In support of his claim for a higher disability rating for allergic rhinitis, the Veteran submitted a VA Form 21-0960N-4, Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx, and Pharynx Disability Benefits Questionnaire (DBQ), completed in February 2014 by a private physician, J. Starkes, M.D., who appears to be an otolaryngologist. Regarding rhinitis, Dr. Starkes indicated that obstruction greater than 50 percent of the nasal passage on both sides, complete obstruction on one side, and nasal polyps were not present. Findings from a February 2014 CT scan were reported as mild mucosal thickening in both maxillary sinuses. The diagnosis was chronic sinusitis; reported symptoms of headaches, purulent discharge, nasal crusting, and pain over the affected sinuses were attributed to sinusitis. The Veteran also submitted DBQ report in which Dr. Starkes attributed symptoms of loss of sense of smell and taste to nonservice-connected sinusitis. In a July 2016 DBQ Sinusitis/Rhinitis report (received in October 2016), Dr. Starkes diagnosed chronic sinusitis and allergic rhinitis. Unfortunately, he completed the DBQ portions related to sinusitis but did not complete the section for evaluating rhinitis. In August 2016, the Veteran was afforded a VA examination to evaluate the current severity of his allergic rhinitis. He described a history of recurrent seasonal congestion treated with a nasal steroid and occasional antibiotics. A contemporaneous CT scan revealed no evidence of sinusitis. Obstruction greater than 50 percent of the nasal passages on both sides, complete obstruction on one side, and nasal polyps were not present. The examiner indicated the Veteran did not have any other pertinent physical findings, complications, conditions, or signs or symptoms related to his allergic rhinitis. In an August 2016 addendum report, the VA examiner indicated that nasal endoscopic examination showed hypertrophy of the nasal turbinates on both sides. Following a review of the electronic claims file and examination, the examiner remarked that the Veteran’s allergic rhinitis was seasonal and stable without progressing and that the original diagnosis of allergic rhinitis was not in error. At the September 2019 hearing, the Veteran testified that he experiences “constant blockages” of his sinuses, “eight to ten episodes a month of serious discharge,” constant migraine headaches, difficulty breathing, and difficulty tasting. His spouse testified that she had observed his “decline in abilities of smell, taste, headaches constantly, always congested.” During the hearing, the Veteran was reminded of the criteria used to rate allergic rhinitis and invited to submit any additional claims for disabilities believed to be secondary to his service-connected allergic rhinitis and/or asthma. In September 2019, the Veteran submitted a DBQ relating to sinusitis and rhinitis completed by a private physician, J. McAfee, M.D., who appears to be an otolaryngologist. The Veteran described having nasal congestion and using Flonase. Other reported symptoms, which were attributed to sinusitis, included headaches, purulent discharge or crusting, and post-nasal drip. Dr. McAfee indicated there was no obstruction greater than 50 percent of the nasal passages on both sides, complete obstruction on one side, or nasal polyps. In addition, there was no permanent hypertrophy of the nasal turbinates or granulomatous conditions and no other pertinent physical findings, complications, conditions, or signs and symptoms relating to allergic rhinitis. Dr. McAfee reported that an August 2019 nasal endoscopy was clear; he was awaiting the results of an MRI study to evaluate the olfactory tract in light of the Veteran’s complaints of hyposmia or decreased sense of smell, which was reportedly present during flare-ups of nonservice-connected recurrent sinus infections. During a November 2019 VA primary care visit, the Veteran reported his allergic rhinitis had been controlled on his current therapies. He denied having nasal congestion, rhinorrhea, sore throat, or hoarseness during a review of systems. May 2020 and November 2020 VA primary care notes reflect he continued to use Flonase and loratadine (Claritin) for allergic rhinitis. In the December 2019 Remand, the Board explained it was unclear from the available medical evidence of record whether the Veteran’s loss of sense of smell and taste (and his headaches) were symptoms of his allergic rhinitis or separate disabilities. The Remand directed the AOJ to arrange an examination to evaluate the allergic rhinitis disability and all symptoms and pathology associated with his allergic rhinitis. In October 2020 correspondence, a private physician, R. Abramowitz, M.D., related that the Veteran had a “long history of suffering from rhinitis/sinusitis as a result of his military service.” He reported the Veteran had at least a 50 percent blockage of his sinus cavities, headaches, pain and tenderness, loss of taste and smell, and purulent discharge. He stated that the Veteran requires “constant daily medication for his rhinitis/sinusitis, including steroids and is seen by me every month for close monitoring and flare-ups for his above-stated chronic inflammation.” He added that the Veteran uses a “CPAP machine to assist with his chronic rhinitis/sinusitis inflammation.” (Private and VA treatment records reflect the Veteran was diagnosed with obstructive sleep apnea syndrome and that his CPAP was ordered for sleep apnea). In November 2020, the Veteran presented for a fee-basis examination to evaluate the severity of his allergic rhinitis. He reported that his allergy symptoms had become worse since onset during military service because he has difficulty breathing and had a diminished sense of smell and taste. His current symptoms included breathing from his mouth due to chronic nasal congestion, rhinorrhea, nasal crustiness, watery eyes, posterior rhinorrhea, allergic shiners (dark circles under the eyes), and approximately six nose bleeds per year due to his allergies. Current treatment included loratadine, Afrin nasal spray, and Flonase. He also described symptoms associated with nonservice-connected sinus infections. On examination, there was no obstruction greater than 50 percent of the nasal passage on both sides, complete obstruction on one side, or nasal polyps. Other findings included no permanent hypertrophy of the nasal turbinates; no granulomatous conditions; and no other pertinent physical findings, complications, conditions, or signs or symptoms related to allergic rhinitis. In reviewing the electronic claims file, the examiner observed that the results of the August 2016 CT scan revealed no evidence of sinusitis. In a January 2021 fee-basis opinion, a physician reviewed the claims file and explained there was no substantiated diagnosis of hyposmia or hypogeusia (reduced sense of smell and taste, respectively), only the Veteran’s reported history of these symptoms. The reviewing examiner explained that anyone who has ever experienced a cold, upper respiratory infection, allergic rhinitis, or acute or chronic sinusitis can attest to decreased olfactory and taste sensations, which are a direct effect of the offending condition and do not represent a true, chronic condition of hyposmia or hypogeusia. The examiner elaborated that the general symptoms experienced by the Veteran, including rhinorrhea, sneezing, nasal congestion, post-nasal drip, etc., are consistent with allergic rhinitis. The examiner also explained that VA and established medical practice agree that imaging is required to confirm a diagnosis of chronic sinusitis and the August 2016 CT scan was negative for chronic sinusitis. The examiner concluded that it was more likely that the Veteran experiences periods of acute sinusitis that may involve an acute decreased sense of smell and taste. Having considered the medical and lay evidence of record, a compensable rating is not warranted for allergic rhinitis at any time during the appeal. The most probative medical evidence of record consistently showed that the Veteran’s allergic rhinitis has been stable and has not been manifested by nasal obstruction or nasal polyps. Again, a compensable rating under Diagnostic Code 6522 requires greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side or nasal polys. See 38 C.F.R. § 4.97. While nasal congestion is noted, it is not shown to approximate sufficient obstruction in one or both nasal passages as to warrant a compensable rating under this diagnostic code. The noncompensable rating for service-connected allergic rhinitis is proper. The Board notes that when a condition is specifically listed in the Schedule, as is allergic rhinitis, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). In February 2021 correspondence, the Veteran’s representative argued on his behalf that the AOJ did not follow the December 2019 Remand orders. The representative suggested the directives included an order to test for loss of sense of smell and taste. In fact, the examiner was asked to “identify all symptoms and pathology associated with the service-connected allergic rhinitis disability, including any…loss of sense of smell, and loss of taste.” The Remand further directed that all “pertinent testing should be undertaken and the results of any such studies should be included in the examination report.” The January 2021 addendum opinion explained that an acute decrease in the sense of smell and/or taste was a symptom of the common cold, upper respiratory infections, allergic rhinitis, or acute or chronic sinusitis. The conclusion that the Veteran does not have a distinct, substantiated diagnosis of hyposmia or hypogeusia is consistent with the medical evidence of record. The opinion further reflects that the reviewing examiner was able to attribute the Veteran’s periods of reduced sense of smell and taste to his episodes of allergic rhinitis, which is shown to be seasonal, based on the medical evidence of record and his lay statements. The Board concludes that the opinion regarding loss of smell and taste and the reviewing examiner’s apparent decision that specific testing for those symptoms was not indicated were supported by the articulated medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Furthermore, the November 2020 fee-basis examiner and January 2021 reviewing examiner identified the Veteran’s symptoms attributable to his allergic rhinitis, including nasal congestion, rhinorrhea, nasal crustiness, sneezing, watery eyes, posterior rhinorrhea, allergic shiners, periodic nose bleeds, and intermittent decrease in sense of smell and taste. Moreover, to the extent that invasive testing was not performed in November 2020 or January 2021, the Veteran himself submitted a contemporaneous DBQ report in September 2019 from a private otolaryngologist, indicating a nasal endoscopy performed one month earlier was clear, confirming the Veteran did not have an obstruction of greater than 50 percent of both nasal passages, a complete obstruction on one side, or nasal polyps. In summary, the Board finds the AOJ substantially complied with the December 2019 Remand directives and the medical evidence of record is adequate to decide the issue on appeal. As the preponderance of the evidence is against the Veteran’s claim for a compensable rating for allergic rhinitis, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. The issue of entitlement to service connection for headaches, to include as secondary to service-connected allergic rhinitis and/or asthma, is remanded. The Veteran contends he has a headache disability, including migraine headaches, secondary to his service-connected allergic rhinitis and/or asthma. Although a September 2014 VA opinion addressed the issue of service connection for headaches on a direct basis and as proximately caused by a service-connected disability, the opinion did not address whether a service-connected disability aggravates the claimed headache disability. In addition, to comply with the December 2019 Remand, a medical opinion identifying the type(s) of headaches experienced by the Veteran is necessary. The AOJ should arrange for an examination to evaluate the nature and etiology of the Veteran’s claimed headache disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to evaluate the nature and etiology of his claimed headache disability. Provide the Veteran’s entire electronic claims file to the designated examiner for review. The examiner is advised that service connection has already been established for allergic rhinitis and asthma. Service connection has not been granted for a sinus disorder, to include chronic sinusitis. Following a review of the claims file and examination, explain whether the Veteran has a current headache disability and identify the type(s) of headaches experienced. For any current headache disability, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the headache disability is or has been aggravated by service-connected allergic rhinitis and/or asthma. A detailed medical rationale must be provided for all opinions expressed. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.