Citation Nr: 21025689 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 09-30 379 DATE: April 28, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for allergic rhinitis, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s allergic rhinitis has been characterized by greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, without polyps. 2. To the extent that the Veteran’s allergic rhinitis symptoms are not contemplated by the schedular rating criteria, they do not cause marked interference with employment or frequent hospitalization. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6522. 2. The criteria for referral for an extraschedular rating for allergic rhinitis have not been met. 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to June 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge during a hearing in December 2012. In this case, the Veteran appealed the March 2016 Board decision denying entitlement to an initial compensable rating for allergic rhinitis to the United States Court of Appeals for Veterans Claims (Court). In response to the September 2016 Joint Motion for Partial Remand (JMPR), the Court, in part, vacated the Board’s March 2016 decision and remanded the matter to the Board for compliance with the terms of the JMPR. Pursuant to the JMPR, the Board remanded the matter in February 2017, October 2017, and August 2018 for further development. In August 2017, the Board granted an initial rating of 10 percent for allergic rhinitis. Since the increase did not constitute a full grant of the benefit sought, the initial rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board notes that the issue of entitlement to service connection for sleep apnea that was previously before the Board was granted in a May 2020 rating decision and is thus no longer before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. Entitlement to a rating in excess of 10 percent for allergic rhinitis, to include on an extraschedular basis. An evaluation of 10 percent is available for allergic rhinitis under 38 C.F.R. § 4.97, DC 6522, without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. The highest rating of 30 percent disabling is available when there are polyps. The Board finds that the assigned 10 percent evaluation for the Veteran’s allergic rhinitis fully contemplates all symptomatology associated with the Veteran’s disability. The evidence of record, including VA examinations from February 2009, September 2014, May 2017, and private medical records indicate that the Veteran does not have polyps. As noted above, a 30 percent rating contemplates polyps. The VA examinations of record specifically note that the Veteran did not have nasal polyps and there is no medical finding in the record to the contrary. Furthermore, the Veteran has not reported having any polyps. Accordingly, there exists no basis for a schedular allergic rhinitis rating in excess of 10 percent. 38 C.F.R. § 4.97, DC 6522. In sum, the overall evidence of record weighs against a finding that the Veteran has polyps or symptomatology warranting a rating in excess of 10 percent for allergic rhinitis. As such, entitlement to a rating in excess of 10 percent for allergic rhinitis is denied. Extraschedular Consideration In the September 2016 JMPR the parties agreed that, in light of the Veteran’s reports about her symptomatology, the Board must address whether the reported symptoms not contemplated by DC 6522 warrant extraschedular consideration or separate compensable ratings. Referral for an extraschedular rating consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The Board referred the issue of entitlement to an extraschedular rating for service-connected allergic rhinitis to Director of the Compensation Service pursuant to the JMPR. In a September 2020 Memorandum, the Director of C&P Service considered the issue of entitlement to an extraschedular rating for the Veteran’s allergic rhinitis in accordance with 38 C.F.R. § 3.321(b). The Director noted that extraschedular evaluations are assigned in cases where an exceptional or unusual picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of the regular rating schedular standards impracticable. The Director of Compensation and Pension concluded that the evidentiary record, when considering the totality of the evidence, does not support entitlement to an extraschedular evaluation for the Veteran’s allergic rhinitis, as it does not provide an exceptional picture that renders the application of schedular standards impractical. Therefore, it was determined that entitlement to an extraschedular evaluation was not warranted. Because the appropriate first line authority has adjudicated entitlement to an extraschedular rating, the Board may now consider the issue. The threshold question is whether the rating criteria adequately contemplates the disability. As noted in the September 2016 JMPR, the plain language of the rating criteria does not appear to contemplate the Veteran’s reported symptoms of nasal bleeding, sneezing, watery eyes, headaches, sensitivity to light, and smelling difficulties due to her allergic rhinitis. However, the Board finds that these symptoms are appropriately considered consequences or manifestations of an inability to breathe through her nose due to the obstruction of nasal passages contemplated by the 10 percent rating under DC 6522. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017). In addition, the medical record indicates that the Veteran’s headaches have been attributed to her menstrual cycle. See November 2002 VA dental and oral examination. As such, these symptoms would not warrant extraschedular consideration. In any event, the Veteran’s allergic rhinitis symptoms have not caused marked interference with employment or frequent hospitalization. The February 2009 VA examiner noted that the Veteran reported she had missed about 20 days of work total in the past year due sinus headaches and nasal obstruction. A September 2014 VA examination report indicated the Veteran reported missing work “about two days a month”; thus, there is some evidence of interference with employment. A May 2017 VA examination indicates the Veteran’s condition does not impact her ability to work. The Board finds that missing about 20 days of work total in a year, or about two days a month, does not constitute marked interference, and the Veteran has not reported any period where her allergic rhinitis caused her to miss a significant period of work. Thus, the Veteran’s allergic rhinitis has not caused marked interference with employment, i.e., beyond that envisioned by the initial 10 percent rating that has been assigned. See 38 C.F.R. § 4.1. Moreover, although the Veteran continues to receive treatment for her allergic rhinitis, there is no evidence of frequent hospitalization due to her symptoms. For the foregoing reasons, the preponderance of the evidence reflects that an extraschedular rating is not warranted for symptoms of the Veteran’s allergic rhinitis. The benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. This appeal raises no additional issues. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.