Citation Nr: 21021302 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 09-29 914 DATE: April 12, 2021 ORDER An increased initial 30 percent rating for allergic rhinitis is granted prior to March 6, 2017. An initial increased rating in excess of 30 percent for allergic rhinitis is denied from March 6, 2017 onward. VETERAN’S CONTENTIONS The Veteran contends that his allergic rhinitis is more severe than is reflected by the ratings currently assigned. Specifically, the Veteran contends that he has an obstructed nasal passage, red puffy eyes, watery eyes, drainage, headaches, tooth pain, and he takes four types of medication every day. FINDINGS OF FACT 1. Prior to March 6, 2017, the Veteran’s service-connected allergic rhinitis was manifested by symptoms that most nearly approximated more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 2. The Veteran’s service-connected allergic rhinitis was not manifested by symptoms that most nearly approximate radical surgery with chronic osteomyelitis, or, near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. CONCLUSIONS OF LAW 1. The criteria for an initial increased 30 percent rating for allergic rhinitis are met for the period prior to March 6, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Codes 6514 and 6522. 2. The criteria for an initial disability rating in excess of 30 percent for allergic rhinitis are not met from March 6, 2017 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Codes 6514 and 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Salt Lake City, Utah. In April 2016, the Board granted a 10 percent disability rating, and no more, for allergic rhinitis. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In October 2017, the Court issued an Order vacating the April 2016 Board decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via video conference in January 2019. A transcript of the hearing is of record. In an August 2020 rating decision, the RO granted a 30 percent disability rating for service-connected allergic rhinitis, effective March 6, 2017. Entitlement to a disability rating in excess of 10 percent prior to April 4, 2016 and in excess of 20 percent thereafter for allergic rhinitis Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body, 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. 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 compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Veteran is currently in receipt of a 10 percent disability rating prior to March 6, 2017 and a 30 percent disability rating from March 6, 2017 onward for allergic rhinitis under 38 C.F.R. § 4.97a, Diagnostic Code 6522. Under Diagnostic Code 6522, a 10 percent evaluation is warranted for allergic rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side; a 30 percent rating – the maximum rating available under Diagnostic Code 6522 - is warranted for allergic rhinitis with polyps. Alternately, under Diagnostic Code 6514, which the Board finds also to be applicable, a 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; a 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating - the maximum rating available under Diagnostic Code 6514 - is warranted 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. An incapacitating episode of sinusitis means one that required bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6514, Note 1. Here, following review of the evidence of record, the Board finds that prior to March 6, 2017, the Veteran’s service-connected allergic rhinitis was manifested by symptoms that most nearly approximated more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; entitling him to an initial increased rating of 30 percent. In this regard, the Veteran testified during the November 2010 Board hearing that he experiences sinus attacks a majority of the time. The Veteran further testified that his symptoms included watery eyes, drainage, and tooth pain. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge.) See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Board finds the Veteran’s statements reporting such symptoms credible and competent. A review of the medical evidence of record is consistent with the contention that the Veteran suffered from consistent sinusitis, characterized by pain, drainage, and/or watery eyes. A September 2008 VA examiner noted that the Veteran experienced congestion, postnasal drainage, red and puffy eyes, dental pain, headaches, and sore throat, and treated these symptoms daily with a tablet and steroid nasal spray. In correspondence dated in November 2010 the Veteran’s wife stated that the Veteran consistently experienced frequent headaches, congestion, sneezing, swelling in his face under his eyes, and tooth pain. Private treatment records document that the Veteran missed more than six days of work for sinusitis in both 2012 and 2013. See Green Family Practice Clinic Records. August 2014 VA treatment records document that the Veteran missed work on numerous occasions because of chronic, recurrent sinusitis. See August 2014 Searcy CBOC Records. In correspondence dated in October 2020 the Veteran stated that he continued to constantly suffer from chronic sinusitis characterized by headaches, teeth ache, tenderness of the face, swelling around eyes, and runny nose/crusting of the nose prior to March 6, 2017. Therefore, after review of the evidence, the Board finds that an initial increased rating of 30 percent is warranted prior to March 6, 2017. An initial increased rating of 30 percent is warranted as the evidence reflects that the Veteran’s service-connected allergic rhinitis was manifested by symptoms that most nearly approximate more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. On the other hand, following review of the evidence of record, the Board finds that the criteria for an initial increased rating in excess of 30 percent are not met throughout the period on appeal. In this regard, although the Veteran reported near constant sinusitis, there is no evidence that the Veteran has had sinus surgery. The March 2011 VA examiner indicated that the Veteran had never undergone any sinus surgery. The December 2019 VA examiner also indicated that the Veteran had never undergone any sinus surgery. Therefore, after review of the evidence, the Board finds that an initial increased rating in excess of 30 percent is not warranted. An initial increased rating in excess of 30 percent is not warranted because the evidence reflects that the Veteran did not have 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. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.