Citation Nr: 22019482 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-58 959A DATE: April 1, 2022 ORDER Entitlement to a compensable initial rating for allergic rhinitis is denied. FINDING OF FACT The Veteran's allergic rhinitis has not manifested in polyps, by greater than 50-percent obstruction of the nasal passage on both sides, or by complete obstruction of the nasal passage on one side at any time during the relevant rating period. CONCLUSION OF LAW The criteria for entitlement to a compensable initial rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1982 to May 1986 and January 1991 to June 1991 and May 2008 to May 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing scheduled in February 2020. However, the Veteran called and cancelled the hearing request because she was granted the contention she was claiming. See January 2020 Report of General Information. A September 2019 rating decision granted the Veteran service connection for obstructive sleep apnea, with a 50 percent rating, effective November 23, 2015. That action constitutes a full grant of the Veteran's appeal for entitlement to service connection for obstructive sleep apnea. Therefore, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Neither the Veteran nor her representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a compensable initial rating for allergic rhinitis The Veteran seeks a compensable initial rating for allergic rhinitis. The applicable rating period is from November 23, 2015, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. In December 2020, the Veteran contacted the hearing coordinator and stated that she wished to withdraw her claim for allergic rhinitis. The Veteran stated that she was satisfied with her 100 percent rating that she received back in December 2019. The Veteran was informed that she would need to withdraw her claim in writing. 38 C.F.R. § 20.205 provides that appeal withdrawals must be in writing and include the name of the veteran (or claimant) and the VA file number and list the withdrawn issues if the appeal involves multiple issues. 38 C.F.R. § 20.205(b)(1); see also DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (discussing requirements for withdrawal of a claim). An appeal withdrawal is effective when received by the Board. 38 C.F.R. § 20.205(b)(3). The Veteran has not submitted a letter withdrawing her claim for a compensable initial rating for allergic rhinitis. Thus, the Board must issue a decision on this claim. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's allergic rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522, which pertains to allergic or vasomotor rhinitis. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic 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 warranted for allergic rhinitis with polyps. Turning to the relevant evidence of record, the Veteran's medical treatment records show that she has a diagnosis of allergic rhinitis. However, they do not show that she has experienced obstruction of the nasal passage on one or both sides due to the condition or that she has had polyps due to the condition. The Veteran has received ongoing treatment for her rhinitis condition. In March 2016, the Veteran was provided a Gulf War examination. The examiner noted that the Veteran had a diagnosis of rhinitis. The examiner indicated that the Veteran does not have (1) greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, (2) no complete obstruction of either side, (3) no permanent hypertrophy of the nasal turbinates, and (4) no nasal polyps. In April 2017, the Veteran's private treatment records show that she received treatment for her rhinitis. Specifically, she was prescribed Symbicort, Alvesco, and Albuterol. In the November 2017 Form 9, the Veteran provided medication instructions showing she was prescribed Albuterol and Fluorenes. In July 2018, the Veteran provided private treatment records. The Veteran reported that she was diagnosed with non-allergic rhinitis that requires daily treatment of Allegra D all year round to keep symptoms under control. She takes Mucinex every 12 hours for congestion and headaches. The Veteran reported that she had a month-long respiratory condition (possibly a severe allergy attack). By the time she was able to get into her doctor she had a chronic non-stop cough, and her lungs felt like bricks. The doctor considered that she may have asthma, but her numbers were shy of an asthma diagnosis. The Veteran indicated that her CPAP is not as effective when her rhinitis flares up. In August 2019, the Veteran was afforded a VA examination for her respiratory condition. The examiner noted that the Veteran had a diagnosis of non-allergic rhinitis. The Veteran reported her condition began in Iraq due to burn pits. She has had a runny nose, cough, nasal congestion, and headaches. She takes Mucinex DM daily, and Flonase. The examiner indicated that the Veteran does not have (1) greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, (2) no complete obstruction of either side, (3) no permanent hypertrophy of the nasal turbinates, and (4) no nasal polyps. The examiner indicated that the Veteran's disability impacts her ability to work because the dripping interferes with the Veteran's concentration, and she has to frequently blow her nose which reduces her productivity. Accordingly, the relevant evidence of record does not show that the Veteran has experienced obstruction of the nasal passage on one or both sides due to her allergic rhinitis or that she has had had polyps due to that condition at any time during the relevant rating period. Regarding the Veteran's assertions that her allergic rhinitis causes sneezing, nasal congestion, runny nose, headaches, and requires the use of nasal sprays, such symptoms and effects are not unusual for allergic rhinitis. See https://medlineplus.gov/ency/article/000813.htm (last accessed January 4, 2021). They are therefore reasonably considered by the Veteran's current noncompensable rating for allergic rhinitis. In addition, they are not sufficient to warrant a compensable rating under Diagnostic Code 6522, which requires nasal polyps or sufficient obstruction of the nasal passage for a compensable rating. The Board therefore finds that the criteria for entitlement to a compensable initial rating for the Veteran's allergic rhinitis have not been met at any time during the relevant rating period. Accordingly, there is no basis for staged rating of the Veteran's allergic rhinitis pursuant to Fenderson, 12 Vet. App. at 126-27. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). In this case, the evidence is thus neither evenly balanced nor approximately so with regard to whether the Veteran has experienced obstruction of the nasal passage on one or both sides due to her allergic rhinitis or that she has had had polyps due to that condition at any time during the relevant rating period. Thus, a compensable disability rating for rhinitis is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.