Citation Nr: 22032083 Decision Date: 06/01/22 Archive Date: 06/01/22 DOCKET NO. 20-08 863 DATE: June 1, 2022 ORDER Entitlement to a compensable disability rating for allergic rhinitis is denied. Entitlement to service connection for residuals of a head injury is denied. FINDINGS OF FACT 1. Allergic rhinitis is not manifested by greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. The Veteran does not have a current diagnosis of residuals of a head injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.97, Diagnostic Code (DC) 6522. 2. The criteria for entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to September 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in September 2018, a statement of the case was issued in January 2020, and a substantive appeal was received in February 2020. Increased Rating Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Allergic rhinitis is rated noncompensably disabling pursuant to 38 C.F.R. § 4.97, DC 6522. VA received his claim for an increased rating on June 14, 2017. The Board acknowledges that a separate noncompensable rating is in effect for chronic sinusitis, effective September 18, 2018, per DC 6513; such rating is not in appellate status. Under DC 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage of both sides or complete obstruction on one side, and a 30 percent rating is warranted when there are polyps. The Board finds that the evidence persuasively weighs against a compensable disability rating for allergic rhinitis. The Veteran's condition manifested in sinus pressure, nose bleeds, nasal congestion and drainage, which does not correspond to the criteria for a 10 percent rating under Diagnostic Code 6522. As relevant here, the Veteran was afforded VA examinations for his allergic rhinitis in July 2017, August 2018 and October 2018. The Veteran reported to the July 2017 VA examiner that he experienced nose bleeds, bilateral sinus pressure and headaches, difficulty breathing, chronic coughing, rhinorrhea and post-nasal drip. The examiner noted that the Veteran did not have an obstruction greater than 50 percent, had no complete obstruction and did not have nasal polyps. The August 2018 examiner reported that the Veteran denied current symptoms, but also noted that there was a language barrier and the Veteran's hearing loss made it difficult to ensure that the Veteran understood the questions posed to him. The Veteran reported to the October 2018 VA examiner that his current symptoms included sinus pain and pressure with headache, nasal congestion and drainage 5 to 7 times per week, with purulent nasal and post-nasal drainage every 2 to 4 weeks. The examiner noted no obstruction greater than 50 percent, no complete obstruction and no nasal polyps. The examiner referenced a November 2016 CT scan and endoscopy that documented findings of a deviated septum, purulent sinus drainage and obstruction of the sinuses. Private treatment records reflect that the Veteran complained of symptoms of sinus pressure and difficulty breathing through the nose. As noted, a 10 percent rating under Diagnostic Code 6522 is not warranted unless there is greater than 50 percent obstruction of the nasal passage of both sides, or complete obstruction on one side. As reflected above, the evidence does not show such symptomology. Additionally, the Veteran has not reported having such symptoms. The Board acknowledges the Veteran's complaint that the August 2018 VA examination was inadequate because of the language barrier, but the July 2017 and November 2018 examinations adequately document the Veteran's symptoms and document the objective findings of his physical condition. Based on the foregoing, the Board finds that the Veteran's allergic rhinitis does not more nearly approximate the criteria corresponding to a 10 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6522. The Board has considered whether an initial compensable rating is warranted under any other diagnostic codes. However, the evidence does not show symptoms that could be rated higher under another diagnostic code. 38 C.F.R. § 4.97. Accordingly, the claim for a compensable rating for allergic rhinitis is denied. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The threshold question that must be addressed is whether the Veteran has a disability. In the absence of proof of a present disability, there is no valid claim of entitlement to service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As will be discussed, the Board finds that the Veteran does not have a current diagnosis of residuals of a head injury. In this regard, the Veteran was afforded a VA examination in November 2020. The examiner concluded that the Veteran did not have any evidence of a traumatic brain injury (TBI) or any head injury. The examiner acknowledged the Veteran's lay statements and the service treatment records (STRs) noting head injuries during service, but noted no complaints of impairment of memory, attention, concentration, or executive function with regard to a TBI. The examiner also noted normal judgment; social interaction routinely appropriate; always oriented to person, time, place and situation; normal motor activity; normal visual spatial orientation; no subjective symptoms and no neurobehavioral effects. The Veteran was noted to be able to communicate by spoken and written language (expressive communication), able to comprehend spoken and written language and had normal consciousness. The examiner indicated that the Veteran did not have any pertinent physical findings, scars, complications, conditions, signs and/or symptoms. The examiner noted that a cognitive test was normal and noted that there were no documents in the record supporting ongoing post-concussive symptoms. The examiner opined that there was no current head injury. A separate examiner provided a November 2020 opinion concluding that there was no evidence of residuals from any head injury. The Board finds the November 2020 opinions to be highly probative. The opinions were based on a review of the claims file and relevant facts, and an examination of the Veteran by the initial examiner. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). To the extent that the Veteran has stated that he has a head condition related to service, the Board finds that the Veteran is competent to report his symptoms; however, he is not competent to provide an opinion as to diagnosis and the etiology of residuals of a head condition because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges that the Veteran contends that he had ongoing headaches as a residual of his head injuries in service. The Board notes that the Veteran separately sought service connection for migraine headaches and that claim was denied in separate January 1995 and December 2018 rating decisions that are not part of this appeal. As the competent evidence of record fails to show that the Veteran has a current diagnosis of residuals of a head condition, his claim of service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the evidence persuasively weighs against the claim (that is to say, the weight of the evidence is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable. See Lynch v. McDonough, 21 4.th 446 (Fed. Cir. 2021); see also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.