Citation Nr: 21030967 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 08-37 876 DATE: May 20, 2021 ORDER From September 1, 2005 to January 11, 2012, entitlement to a 50 percent rating, but no higher, for allergic rhinitis and sinusitis is granted. From September 1, 2005 to January 11, 2011, entitlement to a total disability based upon individual unemployability (TDIU) is denied. Entitlement to an effective date earlier than January 12, 2011 for the grant of special monthly compensation (SMC) is denied. FINDINGS OF FACT 1. From September 1, 2005 to January 11, 2012, the Veteran had near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting. 2. From September 1, 2005 to January 11, 2011, the Veteran had substantially gainful employment. 3. From September 1, 2005 to January 11, 2011, the Veteran did not have a single disability rated at 100 percent disabling. 4. From September 1, 2005 to January 11, 2011, the Veteran was not eligible for a TDIU and thus did not have a single disability that could support a TDIU. CONCLUSIONS OF LAW 1. From September 1, 2005 to January 11, 2011, the criteria for a rating of 50 percent, but no higher, for allergic rhinitis and sinusitis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b)(1) and 4.96, Diagnostic Code 6513. 2. From September 1, 2005 to January 11, 2011, the criteria for a TDIU have not been met. 8 U.S.C. § 5110; 38 C.F.R. § 4.16. 3. From September 1, 2005 to January 11, 2011, the criteria for SMC at the statutory housebound rate have not been met. 38 U.S.C. §§ 1114(s), 5101, 5103, 5103A, 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1985 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). For clarity, the Board highlights four matters. First, the Veteran testified before a Veterans Law Judge (VLJ) in this appeal in August 2011. In March 2016, the Board notified the Veteran that the VLJ retired and that she had the right to another hearing. In April 2016, the Veteran declined a new hearing, so the appeal will proceed accordingly. Second, the Veteran claimed disability benefits for multiple disabilities, to include allergic rhinitis and sinusitis, upon discharge from service. The rating decision for these issues, as mentioned above, is from October 2005. The Veteran appealed multiple issues within this decision in July 2006. The AOJ, in turn, issued a Statement of the Case in October 2008. The Veteran, in turn, perfected her appeal via a December 2008 VA Form 9. The Board previously considered her appeal in October 2011, February 2014, September 2016, June 2018, January 2020, and February 2021. Third, in June 2018, the Board, as relevant here, denied a rating greater than 50 percent for allergic rhinitis and sinusitis from January 12, 2012. The Veteran appealed this denial to the U.S. Court of Appeals for Veterans Claims (CAVC). As the CAVC appeal was pending, the Veteran withdrew her appeal of that issue, so the June 2018 Board decision stands. As such, the Board will only adjudicate the period from September 1, 2005 to January 11, 2012. Fourth, the VA received two communications from the Veteran on April 12, 2021 at 8:18 pm and 9:17 pm. The Veteran styled the first as a "Letter of Request for Extension for Allergic Rhinitis and Sinusitis." In it, she requested additional time to obtain and submit outstanding medical records for the rhinitis and sinusitis appeal. In the second, the Veteran stated that "it has become too stressful" to obtain the medical records" and that she "wish[ed] to close this case and not pursue any further." Taken together, the Board construes the second communication to indicate the Veteran's desire for the Board to proceed to a decision without the outstanding medical records she identified in the first communication. As such, the Board will do so below. Issue 1: From September 1, 2005 to July 19, 2006, entitlement to a rating greater than 0% for allergic rhinitis and sinusitis Issue 2: From July 20, 2006 to January 11, 2012, entitlement to a rating greater than 10% for allergic rhinitis and sinusitis Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. 38 C.F.R. § 4.7. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Merits VA rates the Veteran's allergic rhinitis and sinusitis under Diagnostic Code 6513. Diagnostic Code 6513 provides that chronic maxillary sinusitis warrants a 10 percent evaluation where there are 1 or 2 incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned where there are 3 or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The regulation defines an incapacitating episode as one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513. It is noted that the criteria for a higher evaluation are both conjunctive and disjunctive; in this regard, the criteria distinguishes between non-incapacitating episodes and incapacitating episodes. In the case of non-incapacitating episodes each criterion identified must be met to some extent at the very least. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The Board will begin its analysis in reverse chronological order. That is, the AOJ, in August 2012, awarded the Veteran a 50 percent rating for allergic rhinitis and sinusitis from January 12, 2012. The AOJ explained: The evaluation of allergic rhinitis and sinusitis is increased to 50 percent disabling effective January 12, 2012. A 50 percent evaluation is assigned from January 12, 2012, which is the earliest date as of which it is factually ascertainable that an increase in your disability had occurred. We have assigned a 50 percent evaluation for your sinusitis, maxillary, chronic based on VA examination results dated January 12, 2012. This includes: Near constant sinusitis characterized by: o Crusting o Headaches o Pain o Purulent discharge o Tenderness Additional symptom(s) include: o More than six non-incapacitating episodes per year of sinusitis characterized by: Crusting Headaches Pain Purulent discharge Tenderness o One or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment The Board highlights that the AOJ awarded the 50 percent rating even though the Veteran had no sinal surgery, as Diagnostic Code 6513 requires. The Board believes the AOJ awarded this rating because it found, pursuant to 38 C.F.R. § 4.7, that the Veteran's symptoms "more nearly approximate[d]" the 50 percent criteria. The Board will use the AOJ's treatment as the framework through which it will evaluate the period on appeal. Thus, the dispositive question is when did the symptoms which occasioned the 50 percent award first arise. VA examined the Veteran three times during the period on appeal April 2005 (pre-discharge), November 2006, April 2009. Several matters bear noting. First, the AOJ notified the Veteran in August 2019 that it lost the April 2009 examination report. Second, the record contains a May 2009 addendum to the April 2009 examination report. This addendum is highly probative. In relevant part, the examiner stated he "looked through [the Veteran's] vast medical files of 4 volumes," concluding that she "had chronic perennial allergic rhinitis and sinusitis of severe severity." This suggests that he considered all evidence, to include the Veteran's time in service, before opining that her symptoms were "severe." Third, the Board finds the Veteran testified competently and credibly in August 2011 to the impairment her disability caused. Indeed, the Veteran testified to the symptoms and their associated severity such that they track closely with the AOJ's findings in the August 2012 rating decision. Fourth, the Board finds the Veteran's testimony in August 2011 mirrors what she told the January 2012 examiner in the exam the AOJ used to support the 50 percent rating. In sum, the Board finds this evidence, when considered in totality, weighs in favor of finding that the symptoms which warranted a 50 percent rating as of January 12, 2012 manifested as of September 1, 2005. Therefore, the Board will award a 50 percent rating from September 1, 2005 to January 11, 2012. The Board must now consider the question of an extraschedular rating. For the Veteran's understanding, consideration of an extraschedular rating requires a three-step inquiry. To warrant referral for extraschedular consideration, a disability must be so exceptional or unusual that it renders application of the regular schedular ratings impractical. 38 C.F.R. § 3.321(b)(1) (2020). The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). Extraschedular consideration is not applicable to claims that are evaluated properly but ultimately denied under the schedular ratings; rather, it applies only after conventional rating tools prove inadequate to evaluate a veteran's symptomatology in the first place due to its exceptional nature. Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371. The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If a veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In September 2016, the Board remanded the appeal, in part, for the Director of Compensation Service (DCS) to opine on whether the Veteran merited an extraschedular rating for her allergic rhinitis and sinusitis. The DCS, in October 2017, opined that an extraschedular rating was not warranted. The Board agrees. To the extent the Veteran believes the schedular rating criteria do not adequately contemplate her disability picture, the Board disagrees. Diagnostic Code 6513 contemplates the symptoms to which she testified, e.g., itchy eyes, pain, and headaches. Moreover, the April 2009 VA examiner, in his May 2009 addendum, noted that "she has several other complicating illnesses such as lupus and fibromyalgia which can exacerbate symptoms of the current problems." VA has service connected both the lupus and fibromyalgia. Because VA is compensating the Veteran for these symptoms separately from her allergic rhinitis and sinusitis, they cannot serve as the basis for extraschedular consideration. Based on the foregoing, the Board finds the Veteran does not warrant an extraschedular rating for her allergic rhinitis and sinusitis. Issue 3: From September 1, 2005 to January 11, 2011, entitlement to a total disability based upon individual unemployability (TDIU) TDIU Background Law The VA regulation defining eligibility for a TDIU is 38 C.F.R. § 4.16. This regulation, however, does not define the procedure by which a Veteran may claim a TDIU. Instead, VA practice and case law have defined two ways formal and informal. A formal claim exists when VA receives a VA Form 21-8940. An informal claim, in contrast, is created pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Rice holds that a claim for a TDIU is part of any open rating issue (initial or increased) when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal, and it attaches for the entire rating period. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In 2019, the U.S. Court of Appeals for Veterans Claims (CAVC), issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. A single service-connected disability rated 100 percent disabling generally renders a TDIU evaluation moot, as no additional benefit would typically flow to the Veteran by substituting a TDIU evaluation for a single service-connected disability rated 100-percent disabling. Similarly, a combined evaluation of 100 percent may also render a TDIU evaluation moot when no additional benefit may be derived. However, when additional benefit may be derived from a grant of entitlement to TDIU, such as when TDIU is warranted for a single disability and entitlement to SMC based on housebound status will be an ancillary benefit, then TDIU is not moot. Merits The Board, in September 2016, granted a 100 percent rating for lupus, effective January 12, 2011. It, as relevant here, also remanded to develop whether the Veteran warranted a TDIU prior to this date. This included ordering the AOJ to mail the Veteran a VA Form 21-8940, the TDIU application. The AOJ mailed the TDIU application in April 2017. The Veteran did not return a completed application. Simply put, the Veteran has not alleged, nor does the evidence show, that she did not have substantially gainful employment from September 1, 2005 to January 11, 2011. Indeed, she testified that she served as a teacher "full time." While her disabilities impacted her ability to teach from September 1, 2005 to January 11, 2011, they did not, for purposes of 38 C.F.R. § 4.16, result in unemployability during that window. Therefore, the Board must deny a TDIU. Issue 4: Entitlement to special monthly compensation (SMC) based upon housebound status Background Law In Bradley v. Peake, the U.S. Court of Appeals for Veterans Claims held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). Additionally, an award of SMC at the housebound rate may be awarded if the Veteran has a service-connected disability rated as total and has an additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s)(1). Lastly, when VA has granted a TDIU based on multiple disabilities, not one, this is not dispositive of the SMC issue. In Buie v. Shinseki, 24 Vet. App. 242 (2011), the U.S. Court of Appeals for Veterans Claims explained that the proper question is whether a TDIU may be predicated on a single service connected disability, not whether it was awarded based on a single service connected disability. Merits Because the Board, in September 2016, granted the 100 percent rating for lupus, effective January 12, 2011, and the Veteran had disabilities separately ratable at 60 percent, the AOJ awarded SMC in a November 2016 rating decision. The AOJ correctly determined that this did not cover the entire appeal period, so it continued the issue on appeal for September 1, 2005 to January 11, 2011. Here, the Veteran does not have a single disability rated at 100 percent disabling at any point from September 1, 2005 to January 11, 2011. Moreover, as established in Issue 3, the Veteran did not warrant a TDIU during this window either. Therefore, the Veteran cannot satisfy the requirements of 38 U.S.C. § 1114(s)(1), and the Board must deny the appeal. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.