Citation Nr: 21039843 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-28 395A DATE: July 1, 2021 ORDER Entitlement to an initial compensable rating for allergic rhinitis prior to June 2, 2017, and in excess of 10 percent thereafter, is denied. FINDING OF FACT 1. Prior to June 2, 2017, there is no competent evidence that the Veteran's allergic rhinitis was manifested by polyps or caused greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. Since June 2, 2017, the Veteran's allergic rhinitis has not been manifested by polyps. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for allergic rhinitis prior to June 2, 2017, and in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, DC 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from May 1990 to July 2011. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for allergic rhinitis and assigned an initial noncompensable rating, effective August 1, 2011. In an August 2017 rating decision, the RO increased the rating for the Veteran's service-connected allergic rhinitis to 10 percent, effective June 2, 2017. The issue was previously before the Board in June 2019 and again in February 2021, where it was remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. Where, as in the present case, entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern; therefore, the most critical evidence consists of the evidence generated during the appeal period. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to an initial compensable rating for allergic rhinitis prior to June 2, 2017, and in excess of 10 percent thereafter. The Veteran seeks an increased rating for allergic rhinitis. The disability was initially rated as noncompensable effective August 1, 2011 and is currently rated as 10 percent disabling since June 2, 2017 under Diagnostic Code (DC) 6522. Under DC 6522, allergic rhinitis with no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. 38 C.F.R. § 4.97. A 30 percent evaluation is assigned when polyps are present. Id. The Board notes the Veteran has submitted evidence that relates to her service-connected sinusitis in the context of her appeal of the rating assigned for rhinitis. The Board acknowledges the Veteran has also appealed the rating assigned for sinusitis; however, she has requested a hearing regarding this appeal, so it will be addressed in a separate decision at a later date. As a result, this decision will focus solely on the rating assigned for rhinitis. The earliest available records in the claims file describing of the severity of the Veteran's rhinitis come from an April 2011 VA medical opinion, where it is noted that the Veteran had "no symptoms currently relating to this condition" and that it was causing "no apparent distress." No polyps were noted. Although there is no assessment of nasal obstruction conducted, the description of her rhinitis as asymptomatic reasonably indicates that it was at least not causing a level of obstruction that would merit a compensable rating. The condition of the Veteran's rhinitis is described again in December 2012 private medical treatment records. Although multiple symptoms are noted, including most relevantly, mildly swollen pale mucosa and nasal congestion, there is no assessment of nasal obstruction done that would indicate her condition had reached compensable levels at that point in time. The record also explicitly notes that she did not have nasal polyps. No additional evidence pertinent to rhinitis is present in the file for the period from December 2012 until June 2017, at which point the Veteran was assigned her current 10 percent disability rating. Although the Veteran is competent to testify to her subjective experience of her condition, she is not competent to make the specific medical determination that her rhinitis had caused at least 50% nasal passage obstruction. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Without any competent evidence to support her claim that her condition had reached this level of severity prior to June 2017, the Veteran's subjective lay statements alone are insufficient to warrant a grant of compensable rating for that period. As aforementioned, the Veteran seeks a rating in excess of 10 percent for the period after June 2017. Evidence of nasal polyps must be demonstrated in order for the Veteran to meet the criteria for the next available rating for rhinitis under DC 6522. However, VA medical examinations conducted in December 2017 and again in April 2021 both show that the Veteran does not have nasal polyps. In fact, in every instance throughout the Veteran's medical record where rhinitis was assessed, the presence of nasal polyps has been denied. (Continued on the next page) Based on this evidence, the Board finds a higher rating is not warranted for the Veteran's allergic rhinitis. The preponderance of the evidence prior to June 2017 does not support a finding that the Veteran experienced at least 50 percent obstruction of the nasal passage on both sides or complete obstruction of one side. Furthermore, there is no competent evidence to support finding the Veteran has ever had polyps related to her service-connected allergic rhinitis. As such, the Veteran's increased rating claim for service-connected allergic rhinitis must be denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.