Citation Nr: 22018340 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-47 183 DATE: March 28, 2022 ORDER Entitlement to a compensable disability rating for the Veteran's service-connected allergic rhinitis is denied. FINDING OF FACT The evidence persuasively shows that the severity of the Veteran's allergic rhinitis disability does not rise to compensable levels. CONCLUSION OF LAW The criteria for establishing entitlement to a compensable disability rating for the Veteran's service-connected allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.31, 4.7, 4.10, 4.21, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1993 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Court of Appeals for Veteran's Claims (Court) has held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). During her May 2021 hearing, the Veteran indicated that she is currently working full time as a schoolteacher. As the evidence of record does not suggest the Veteran is unemployable due to her service-connected disabilities the Board will not address entitlement to TDIU. When this case was last before the Board in October 2021, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with an examination to address the current severity of her allergic rhinitis disability. The Veteran was provided with an appropriate examination. As such, the Board finds that the AOJ substantially complied with the directives in the October 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingLegal Criteria 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 there is a question as to which of the 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Allergic RhinitisLegal Criteria The Veteran's allergic rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522. Under Diagnostic Code 6522, a 10 percent 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. A 30 percent is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. A polyp is defined as "an abnormal protruding growth from a mucous membrane." Dorland's Illustrated Medical Dictionary, 1514 (31st ed. 2007). The Board notes that 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. Analysis The Veteran is seeking entitlement to a compensable disability rating for her service-connected rhinitis disability. Considering the evidence in light of the applicable rating criteria and considerations, the Board finds that the Veteran's allergic rhinitis has not met the requirements for a compensable disability rating. For the reasons below, the Veteran's claim is denied. The Veteran's VA and private treatment notes indicate that she has a current diagnosis of, and receives treatment for, allergic rhinitis. Though the severity reflected in the Veteran's treatment records does not significantly differ from the below cited VA examinations. The Veteran underwent a VA examination in December 2014 at which time she reported symptoms of sinus congestion. Physical examination demonstrated no nasal obstruction greater than 50 percent of the nasal passage on both sides, no complete obstruction of either side, no permanent hypertrophy of the nasal turbinates, no nasal polyps, no granulomatous conditions, no scars, and no other pertinent physical findings. The examiner opined that the Veteran's sinus, nose, throat, larynx, and pharynx conditions did not impact her ability to work. During her May 2021 Board hearing, the Veteran reported that she has a lot of sneezing and running in her nose, though she was unsure whether she had nasal polyps or not. Following the Board's October 2021 Remand, the Veteran underwent a VA examination in December 2021 at which time she reported sneezing, runny nose, ear pain, nasal congestion, itchy eyes, and that her teeth will hurt. Physical examination demonstrated no nasal obstruction greater than 50 percent of the nasal passage on both sides, no complete obstruction of either side, no permanent hypertrophy of the nasal turbinates, no nasal polyps, no granulomatous conditions, no scars, and no other pertinent physical findings. The examiner noted that the Veteran's sinus, nose, throat, larynx, and pharynx conditions have impacted the Veteran's ability to work. Specifically, the examiner noted that in the last 12 months the Veteran had lost 1-2 weeks of work and that her functioning is affected by feeling tired, losing her voice, and trouble focusing. The Board finds that a compensable disability rating is not warranted at any time during the claim period. In this regard, the Veteran's allergic rhinitis was not manifested by greater than 50 percent obstruction of the nasal passage on either side. Further, there was no evidence that the Veteran's rhinitis has been manifested by any nasal polyps throughout the period on appeal. Thus, the Veteran's symptoms have not met or approximated the criteria for a higher, compensable, rating under Diagnostic Code 6522 at any time during the claim period. In addition, she has not been diagnosed as having any type of rhinitis other than allergic rhinitis, so as to warrant a higher rating under any other applicable diagnostic code. Further, the Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as sneezing and a runny nose. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that her current disabilities entitle her to a higher disability rating, such statements are inconsistent with, and therefore less probative than, the objective medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Indeed, with regard to the actual degree of the Veteran's impairment, the objective findings contained within the VA examination reports of record is more probative because the examiners provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. Moreover, there is no evidence that the examiners are not credible. The medical findings, as provided in the examination reports, directly address the criteria under which the disability is rated. Based on those reports, the Board finds that the evidence is persuasively against the assignment of a higher rating during any period on appeal. As the evidence persuasively weighs against the claim, the benefit of the doubt doctrine is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The claim is therefore, denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.124a; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.