Citation Nr: 21042398 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-02 508 DATE: July 13, 2021 ORDER Entitlement to increased rating for allergic rhinitis, rated as noncompensable rating prior to October 14, 2019 and 30 percent thereafter, is denied. Entitlement to a 30 percent rating for eczematoid dermatitis for the period prior to October 14, 2019 is granted. Entitlement to a rating in excess of 30 percent for eczematoid dermatitis is denied. FINDINGS OF FACT 1. For the appeal period prior to October 13, 2019, the Veteran's allergic rhinitis manifested as complaints of congestion and rhinitis without polyps, a 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. 2. For the appeal period beginning on October 14, 2019, the Veteran's allergic rhinitis manifested congestion and rhinitis with greater than 50 percent obstruction of the nasal passages on both sides and has been awarded the maximum schedular rating for the condition. 3. Throughout the period on appeal, the Veteran's eczematoid dermatitis manifested as a rash that involved 20 to 40 percent of her entire body without a encompassing more than 40 percent of the entire body or more than 40 percent of exposed areas affected or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for entitlement to increased rating for allergic rhinitis, rated as noncompensable rating prior to October 14, 2019 and 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.97, Diagnostic Code 6522. 2. The criteria for entitlement to a 30 percent rating, but no higher, for eczematoid dermatitis throughout the appeal period have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1982 to June 1982 and from November 1990 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The Veteran's claims were denied in the RO's August 2005 rating decision. Subsequently, the Veteran appealed the denials by filing a Notice of Disagreement (NOD) in September 2005. RO issued a State of the Case in January 2008 and the Veteran's substantive appeal was received in January 2008. These matters previously came before the Board in December 2010, December 2014, and September 2019 whereupon they were remanded to allow for additional development, to include obtaining outstanding records and providing the Veteran with current and adequate VA examinations. Such records have been obtained and new examinations were provided for the Veteran in April 2014 and October 2019. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). In a June 2020 rating decision, the agency of original jurisdiction (AOJ) granted a 30 percent rating for allergic rhinitis and eczematoid dermatitis, both effective October 14, 2019. However, a higher rating is available for each condition. The Veteran is presumed to seek the maximum available benefit for a disability. As such, these claims are still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Ratings Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). 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, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to increased rating for allergic rhinitis The Veteran generally asserts that she is entitled to an increased rating for her allergic rhinitis, specifically because her symptoms are more severe than contemplated by the currently assigned ratings. The Veteran contends that she is entitled to a higher rating for her condition because she relies on multiple medications to treat her condition and would risk dying without her medication. The Veteran's rhinitis is rated under the 38 C.F.R. § 4.97 Schedule of Ratings Respiratory System, Diagnostic Code 6599-6522, which specifically compensates for allergic or vasomotor rhinitis. Under the applicable criteria, a 10 percent rating is granted for rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is granted when polyps are present. 38 C.F.R. § 4.97, Diagnostic Code 6522. The Veteran was granted service connection for allergic rhinitis, effective March 5, 2005. The Veteran's condition was rated as zero percent disabling from March 5, 2005 to October 14, 2019 and as 10 percent disabling thereafter. 38 C.F.R. § 4.97. The Board will review all pertinent evidence from March 5, 2005 onward to determine whether higher ratings are warranted for the Veteran's disability. Appeal Period Prior to October 13, 2019 VA treatment records document the Veteran's treatment for chest pain, shortness of breath, and productive coughing in September 2007; which was treated with a nebulizer. Subsequent records show the Veteran's complaints and treatment for cold and chest congestion in February 2008. The Veteran was provided a VA examination for her allergic rhinitis in April 2014. The examination made findings of rhinitis without polyps. Obstruction greater than 50 percent of the nasal passages was not found. The examiner noted permanent hypertrophy of the nasal turbinates. The examination revealed no presence of polyps anywhere in the nasal cavities or sinuses. The record does not establish, and the Veteran has not alleged, polyps, greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. Thus, a higher rating for this appeal period is not warranted for this appeal period. 38 C.F.R. § 4.97, Diagnostic Code 6522. Appeal period Beginning On October 14, 2019 An October 14, 2019 VA examination reflected the Veteran's reports of having congestion and a runny nose and that she treated her condition with medication, nasal inhalers, eye drops, creams and shampoo. Physical examination found that there was greater than 50 percent obstruction of the nasal passage on both sides due to trauma and permanent hypertrophy of the nasal turbinates. Examination was negative for complete obstruction on either side due to rhinitis, nasal polyps and granulomatous conditions. VA treatment records from 2020 and 2021 document the Veteran's treatment with Flonase and Astelin, both prescription nasal spray medications used for treated allergies and their symptoms. There is no indication of the incidence of polyps anywhere in the nasal cavities, passages, or sinuses. For the appeal period beginning on October 14, 2019, the Veteran's allergic rhinitis manifested as congestion and rhinitis with greater than 50 percent obstruction of the nasal passages on both sides. The Veteran has been awarded a 30 percent rating for her allergic rhinitis for this appeal period and a 30 percent rating is the maximum schedular rating for the condition. Therefore, a rating higher than 30 percent for this appeal period is not warranted. 38 C.F.R. § 4.97, Diagnostic Code 6522. 2. Entitlement to increased rating for eczematoid dermatitis The Veteran generally asserts that she is entitled to an increased rating for her eczematoid dermatitis, specifically because her symptoms are more severe than contemplated by the currently assigned ratings. The Veteran contends that she is entitled to a higher evaluation for her condition because she is prescribed many different topical medications due to constant itching. The Veteran's representative argued that a higher rating is warranted because the Veteran experienced flare-ups of her skin condition. The Veteran was granted service connection for eczematoid dermatitis, effective March 5, 2005. The Veteran's dermatitis is rated under Diagnostic Code 7806 and was rated as zero percent disabling from March 5, 2005 to October 13, 2019 and as 30 percent disabling thereafter. 38 C.F.R. § 4.118. During the pendency of the appeal, as it pertains to the Veteran's eczematoid dermatitis, the Schedule for Rating Disabilities that addresses Diagnostic Codes 7801, 7802, 7805, and 7806 has been amended, which went into effect on August 13, 2018. 83 Fed. Reg. 32592 (July 13, 2018). Accordingly, both versions of the ratings schedule are applicable to this claim. VA will consider the claim in light of both versions, and whichever is most favorable to the Veteran will be applied. Under the previous criteria, a zero percent rating is available for dermatitis under 38 C.F.R. § 4.118, Diagnostic Code 7806 when there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted when there is at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if the skin condition covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if the skin condition covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Under the amended criteria, dermatitis is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806, within the General Rating Formula for Skin. Diagnostic Code 7806 contemplates a zero percent rating for when no more than topical therapy is required over the past 12-month period and at least one of the following is present: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is warranted when there is at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-with ultraviolet light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. 38 C.F.R. § 4.118 defines systemic therapy as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. A 30 percent rating is warranted when there are characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. The Veteran was granted service connection for eczematoid dermatitis, effective March 5, 2005; thus the Board will review all pertinent evidence from that date onward to determine whether higher ratings are warranted for the Veteran's disability. The Veteran was provided a VA examination for her dermatitis in April 2014. The examination found that the Veteran's disability had been treated with topic medications for the previous 12 months. The Veteran used topic corticosteroids for six months or longer, but not consistently. The examination noted that the Veteran had not undergone intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for less than six weeks during the prior 12 months. The examination also did not reveal findings of at least 5 percent, but less than 20 percent, of the exposed areas of the Veteran's body affected by the skin disorder. The Veteran reported that her rashes seemed worse during the warm months than the cold months. The Board has reviewed a dermatology treatment note from August 2016 providing a diagnosis for dyshidrotic eczema and noted treatment with topical medications. The Veteran's skin was noted to be mostly clear with scattered excoriated papules over her legs and torso, scattered papules over her back, and hyperpigmented scaly think plaques (larger than 2 centimeters) over her left lateral leg. Treatment with corticosteroids or other immunosuppressive drugs was not indicated. An August 2016 VA treatment note provided a diagnosis for dyshidrotic eczema, treated with topical medications. The Veteran's skin was noted to be mostly clear with scattered excoriated papules over her legs and torso, scattered papules over her back, and hyperpigmented scaly think plaques (larger than 2 centimeters) over her left lateral leg. Treatment with corticosteroids or other immunosuppressive drugs was not indicated. The Veteran was provided a VA examination for her dermatitis on October 14, 2019. The examination revealed findings of characteristic lesions involving 20 to 40 percent of the Veteran's entire body. Additional symptoms found were characteristic lesions involving at least 5 percent, but less than 20 percent of the exposed areas; and no more than topical therapy required over the previous 12 months. VA treatment records from 2020 and 2021 document "itchy rash on hands" and "generalized itching well controlled with loratadine." The notes also mention "intermittent hot spots that come and go." There is no indication of any treatment involving corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. For the appeal period prior to October 14, 2019, the Veteran's eczematoid dermatitis manifested as eczema that was treated with topical medications. Although the April 2014 VA examination did not reveal an active dermatitis, the Veteran reported that the rash was worse in the colder months than the warmer months and subsequent VA treatment notes reflect the presence of a dermatitis. The Board also notes that the Veteran reported at her October 2019 VA examination that her eczema had been stable throughout its course. Therefore, a 30 percent rating, but no higher, is warranted for the appeal period prior to October 14, 2019. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Veteran's eczematoid dermatitis manifested as a rash that involving 20 to 40 percent of her entire body. The record is negative for, and the Veteran has not alleged, that her skin condition covered more than 40 percent of the entire body or more than 40 percent of exposed areas affected or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Although the Veteran's representative argued that the Veteran experienced flare-ups of her skin condition, no such flare-ups were noted in the examination or in the clinical records and the Veteran specifically reported during the October 2019 VA examination that her condition had remained the same since the onset of the condition. In addition, the October 2019 VA examination noted that the Veteran treated her eczematoid dermatitis with anti-itch cream and Benadryl, which the examiner noted was an antihistamine. There is no indication that the Veteran was treated with system therapy such as corticosteroids or other immunosuppressive drugs. A rating in excess of 30 percent for eczematoid dermatitis is therefore not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. Other Considerations In assessing the severity of the Veteran's allergic rhinitis and eczematoid dermatitis, the Board has given due consideration to the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran's lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her allergic rhinitis and skin condition according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has also considered whether a further staged rating under Hart, supra, is appropriate for the Veteran's service-connected allergic rhinitis and eczematoid dermatitis; however, the Board finds that her symptomatology has been stable throughout the appeal periods for each condition. Therefore, assigning a further staged rating for such disabilities are not warranted. Further, the Veteran and her representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has not asserted at any point in time that she is unable to secure and maintain employment due to her service-connected allergic rhinitis and eczematoid dermatitis. Therefore, a TDIU has not been raised. The Board notes arguments of the Veteran's representative in the July 2021 Informal Hearing Presentation that a new respiratory examination was necessary as smoking is associated with posttraumatic stress disorder (PTSD), that there was no etiology opinion discussing the relationship between chronic obstructive pulmonary disease (COPD)/emphysema and PTSD, and that VA failed to display the fundamentals of research by obtaining respiratory, menstrual, skin or alopecia medical opinions. However, as detailed above, the Veteran's increased rating for allergic rhinitis is rated under Diagnostic Code 6522 as a disease of the nose and throat rather than a respiratory disease and the diagnostic criteria clearly call for consideration of whether the Veteran has polyps and nasal obstructions rather than pulmonary function. The Veteran has been afforded multiple skin examinations during the appeal period that properly considered the diagnostic criteria under Diagnostic Code 7806. Service connection for a menstrual condition, COPD/emphysema and/or alopecia are not on appeal and are not encompassed by the Veteran's current claims for increased rating for allergic rhinitis and eczematoid dermatitis. This argument is therefore without merit. Accordingly, the Board finds that a 30 percent rating is warranted for the Veteran's eczematoid dermatitis for the appeal period prior to October 14, 2019; to that extent, the appeal is granted. The Board also finds that the preponderance of the evidence is against the Veteran's claim for increased rating for her service-connected allergic rhinitis. Given that the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.