Citation Nr: 21030170 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-24 152 DATE: May 18, 2021 ORDER Entitlement to a compensable evaluation for a disorder of the ear, mouth, nose, and/or throat (previously claimed as residuals of allergic rhinitis) is denied. Entitlement to service connection for a throat condition (previously claimed as a neck condition) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the preponderance of the evidence does not show that the Veteran's allergic rhinitis is manifested by polyps, greater than 50 percent obstruction of the nasal passage on both sides, or complete nasal obstruction on one side. No incapacitating episodes have been documented. 2. The preponderance of the evidence of record does not show that the Veteran has a chronic, clinically diagnosed throat condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable evaluation for a disorder of the ear, mouth, nose, and/or throat (previously claimed as residuals of allergic rhinitis) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.31, 4.97, Diagnostic Code 6522 (2019). 2. The criteria for entitlement to service connection for a throat condition (previously claimed as a neck condition) have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1967 to June 1970. In May 2016, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In November 2017, the Board remanded the appeal for evidentiary development. It has since been returned to the Board for further consideration. The Board observes that the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that an appeal regarding entitlement to service connection for ulcerative colitis is pending. It will be subject to a separate decision at a later date. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Entitlement to a compensable evaluation for a disorder of the ear, mouth, nose, and/or throat (previously claimed as residuals of allergic rhinitis) The Veteran seeks entitlement to a compensable evaluation for a disorder of the ear, mouth, nose, and/or throat (previously claimed as residuals of allergic rhinitis). The Veteran's service-connected allergic rhinitis has been evaluated noncompensable pursuant to Diagnostic Code 6522, which provides that a 10 percent disability rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. For a 30 percent disability rating, the allergic or vasomotor rhinitis would be accompanied by polyps. A 30 percent disability rating is the highest rating available under this diagnostic code. 38 C.F.R. § 4.97, Diagnostic Code 6522. 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. The Veteran had a VA general medical examination in December 2010. Upon examination, his nasal turbinates were found to be slightly prominent, with no polyps, drainage, or obstruction noted. The examiner determined that the Veteran's most likely diagnosis for his condition is allergic rhinitis, with minimal symptoms and that his condition is at least as likely as not related to his military service. A noncompensable evaluation was later assigned. Pursuant to the Board's November 2017 remand, the Veteran received another VA examination in December 2017, wherein he was again diagnosed with allergic rhinitis. The examiner found no evidence of an obstruction of the nasal passages greater than 50 percent due to rhinitis. Additionally, there was no evidence of complete obstruction of the nasal passages due to rhinitis. There was no permanent hypertrophy of the nasal turbinates or nasal polyps. No other symptoms were reported and sinus x-rays were normal. Given the above, none of the competent evidence of record supports a compensable evaluation for allergic rhinitis. Repeated VA examinations indicate that nasal polyps were not found and there were no signs of nasal obstruction. Nor have any incapacitating episodes been documented that could possibly indicate a separate evaluation for sinusitis. The Board acknowledges the Veteran's contentions that his service-connected disability warrants a compensable evaluation. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. See Moray v. Brown, 2 Vet. App. 211, 214 (1993). The Board also notes that the Veteran has claimed that his condition is either misdiagnosed or improperly rated. However, the VA examiners have all indicated that the proper diagnosis for his symptoms is allergic rhinitis and there are no medical records to suggest a separately compensable rating for another disorder of the ear, mouth, nose, and/or throat. Therefore, a compensable evaluation is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a throat condition (previously claimed as a neck condition) Initially, the Board notes that there has been some confusion as to the scope and extent of the Veteran's claim. The Veteran's service records indicate that he received some treatment for assorted conditions pertaining to the head, throat, and neck. These complaints included a sore throat, tonsillitis, respiratory infection, cough, and excessive mucous. The Veteran received a general VA medical examination in December 2010. The Veteran complained of a scratchy throat with increased mucous and stated that these symptoms occurred every few months. Upon examination, his throat and neck were reported as normal and it was suggested that his most likely diagnosis for his throat complaints is allergic rhinitis, for which service connection is now in effect. Pursuant to the Board's November 2017 remand, the Veteran underwent another VA examination in December 2017. The examiner provided the following remarks: No throat condition found on examination. Nose and throat examination was normal. No swallowing problems. No speech problems. He had normal CBC. No Leucocytosis. Sinus X rays were normal ... Veteran does not have any throat condition on examination. Examination of nose and throat was normal. There was no muscle weakness. Swallowing was normal. No thyroid enlargement on palpation. In summary no throat condition or muscle injury or Sinus problem found on this clinical examination. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). In essence, the evidence of a current diagnosis of a throat condition is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability such as a throat condition requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in-service and thereafter, his reports are not competent to relate such to his military service. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Furthermore, the December 2017 VA examiner confirmed that there is no objective evidence of residuals of a throat condition found with the Veteran. In light of the absence of any competent evidence a throat or neck condition, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.