Citation Nr: A25035467 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240626-452235 DATE: April 17, 2025 ORDER Entitlement to an initial compensable rating for allergic rhinitis is denied. Entitlement to service connection for anxiety, as due to service-connected mental disorder disabilities, is granted. FINDINGS OF FACT 1. The Veteran's allergic rhinitis is manifested by postnasal drip, constant, sore throat, and upset stomach due to postnasal drip, but not by nasal polyps or 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. The evidence of record is at least in approximate balance as to whether the Veteran's anxiety arose as secondary to her service-connected posttraumatic stress disorder (PTSD) and major depressive disorder. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.97, Diagnostic Code 6522. 2. The criteria for entitlement to service connection for anxiety have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to September 2002, and from January 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2024 Agency of Original Jurisdiction (AOJ) decision on appeal. 38?C.F.R. §?20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§?20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an initial compensable rating for allergic rhinitis The Veteran has been assigned an initial noncompensable rating pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6522. The Veteran contends that she is entitled to a higher rating for her service-connected allergic rhinitis. See June 2024 VA Form 10182, Notice of Disagreement. 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. In cases in which a claim for a higher initial evaluation stem from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of 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 every instance where the rating 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. Allergic rhinitis is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6522, for allergic or vasomotor rhinitis. Under Diagnostic Code 6522, a 10 percent rating is warranted for a disability without polyps, but with greater than 50-percent obstruction of nasal passage of both sides or complete obstruction on one side. A 30 percent rating is warranted for polyps. The Board finds that the evidence persuasively weighs against a compensable rating for allergic rhinitis. For the reasons that follow, the Veteran's allergic rhinitis has not manifested in postnasal drip, constant, sore throat, and upset stomach due to postnasal drip, which do not correspond to the criteria for a 10 percent rating under Diagnostic Code 6522. The Veteran was afforded a VA examination in December 2023. The Veteran reported that after her return from Iraq in 2003, she started to have issues with postnasal drip, sore throat, and upset stomach due to postnasal drip. She has been treating her symptoms with Afrin and Sudafed. She added that daily symptoms are persistent and remained the same over the years. The VA examiner provided a diagnosis of allergic rhinitis. The examiner reported that the Veteran's rhinitis does not manifest in nasal polyps or present with a greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 10 percent rating under Diagnostic Code 6522 is not warranted unless there is greater than 50-percent obstruction of nasal passage of both sides or complete obstruction on one side. As discussed above, the evidence does not show such symptomatology. Accordingly, the Veteran's allergic rhinitis does not more nearly approximate the criteria corresponding to a 10 percent rating. A higher 10 percent rating is not warranted. The Board has considered whether a compensable rating is warranted under any other diagnostic codes. However, the evidence does not show symptoms that could be rated higher under another respiratory diagnostic code. See 38 C.F.R. § 4.97. In conclusion, the Board finds that the evidence of record persuasively weighs against finding that the Veteran's allergic rhinitis warrants a compensable disability rating. As the evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In making this determination, the Board notes that the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the issue adjudicated herein. See Doucette v. Shulkin, 28?Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show, that this disability contributes to render her unable to secure or follow a substantially gainful occupation, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki,?22?Vet. App.?447?(2009). 2. Entitlement to service connection for anxiety The Veteran seeks service connection for an anxiety condition. She contends that her anxiety is related to service, specifically to her time served while in Iraq. See July 2023 VA 21-526EZ, Fully Developed Claim. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough,?21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi,?274 F.3d 1361, 1364?(Fed. Cir. 2001). Upon review of the evidence of record, the Board grants the appeal for service connection for anxiety caused as secondary to now service-connected mental disorder disabilities. The claims file shows that the Veteran has been medically treated for her anxiety condition. See September 2018 Psychotherapy Notes. The Veteran was afforded a VA examination in December 2023 for her claimed mental health conditions. Based on the medical examination and the clinical findings, the clinician provided a current diagnosis of PTSD and major depressive disorder. The VA examiner determined that the Veteran has anxiety as a component of or symptom of her diagnosed PTSD and major depressive disorder. Further, the examiner noted that it is impossible to differentiate what symptoms, including anxiety, are attributable to each diagnosis. In a January 2024 rating decision, the Veteran was service connected for her diagnosed PTSD and major depressive disorder with a 70 percent disability rating effective July 5, 2023. In the same rating decision, service connection for anxiety was denied. See January 2024 rating decision. The Board notes that, when it is not possible to separate the effects of a non-service-connected disability from those of a service-connected disability, reasonable doubt shall be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, under the particular circumstances in this case, and after a review of the pertinent medical evidence, the Board finds that the Veteran's anxiety is a symptom attributable to her already service-connected mental disabilities. The December 2023 VA examiner determined the Veteran's anxiety to be a symptom of her service-connected PTSD and major depressive disorder. Therefore, the Board finds the evidence is at least in approximate balance as to whether the Veteran's anxiety arose as secondary to her service-connected mental disorder. Accordingly, entitlement to service connection for anxiety is granted.? A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rivera Pagan, Cristina A. 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.