Citation Nr: A25041210 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240416-432834 DATE: May 6, 2025 ORDER Entitlement to an effective date of October 26, 2022, but no earlier, for the award of a 50 percent rating for chronic sinusitis is granted. Entitlement to an effective date of October 26, 2022, but no earlier, for the award of a 40 percent rating for lumbosacral strain with degenerative disc disease (DDD) is granted. Entitlement to an effective date earlier than July 16, 2021, for the award of a 10 percent rating for allergic rhinitis is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, from October 26, 2022, his service-connected sinusitis has manifested by near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge. 2. Resolving reasonable doubt in the Veteran's favor, from October 26, 2022, his service-connected low back disability has manifested, at most, in forward flexion limited to 20 degrees. 3. VA received the Veteran's claim for an increased rating for his service-connected allergic rhinitis on July 16, 2021; an increase in symptomatology sufficient to warrant a compensable rating for allergic rhinitis was not factually ascertainable within the one-year period prior to his July 16, 2021 increased rating claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of October 26, 2022, for the award of an increased rating of 50 percent rating for chronic sinusitis have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400, 3.2500, 4.97 (2023), Diagnostic Code 6513. 2. The criteria for entitlement to an effective date of October 26, 2022, for the award of an increased rating of 40 percent rating for lumbosacral strain with DDD have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400, 3.2500, 4.71a (2023), Diagnostic Code 5242. 3. The criteria for entitlement to an effective date earlier than July 16, 2021, for the award of a 10 percent rating for allergic rhinitis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400, 3.2500, 4.97 (2023), Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1997 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) from a March 2024 higher-level review rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), an agency of original jurisdiction (AOJ). In March 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review, and requested review of entitlement to earlier effective dates for chronic sinusitis, lumbosacral strain with DDD, and allergic rhinitis, but did not specify a rating decision(s) for that review. In construing the Veteran's request liberally, the March 2024 higher level review rating decision considered evidence as of the October 2023 and February 2024 rating decisions and denied entitlement to earlier effective dates for the initial awards of service connection, as well as the increased evaluations. In an April 2024 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected Direct Review. As such, the Board may only consider the evidence of record at the time of the AOJ rating decisions on appeal. 38 C.F.R. § 20.301. If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in this decision. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file 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 related 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. Earlier Effective Dates In general, under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of service connection for a disease or injury is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. 38 C.F.R. § 3.1(p). The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of increased compensation to a Veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year of such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If VA receives a complete claim application form within one year of receipt of an intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized both formal and informal claims. The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. 1. Entitlement to earlier effective dates for chronic sinusitis The Veteran contends "[e]ntitlement to an earlier effective date of June 15, 2022, for service connection for acute sinusitis date of original claim is June 15, 2022." See March 2024 VA Form 20-0996, Request for Higher-Level Review. In this case, the AOJ received the Veteran's Intent to File a compensation claim on January 10, 2022. The AOJ then received the Veteran's VA Form 21-526EZ, Fully Developed Claim (Compensation) for service connection for, in relevant part, sinusitis on June 15, 2022, within one year of receipt of his Intent to File. This constitutes a completed claim for service connection for sinusitis. See 38 C.F.R. § 3.155. An earlier effective date based on filing a claim within one year after separation from service is not warranted. The Veteran does not maintain, nor does the record reflect that the Veteran filed a service connection claim for sinusitis by January 2006, within one year of separation from service. The Veteran did not file any correspondence regarding the claimed sinusitis until his June 15, 2022 "original claim," as contended in his March 2024 Request for Higher-Level Review. As for the date entitlement arose, because the AOJ granted service connection from January 10, 2022, the date of the submission of the Intent to File a compensation claim, it implicitly found that entitlement to these benefits had already arisen by the date of the claim. See Akers v. Shinseki, 673 F.3d 1352, 1359 (Fed. Cir. 2012). This implicit finding benefits the Veteran since an effective date later than June 15, 2022, would be warranted if entitlement did not actually arise until after the date of claim. In short, the current effective date of January 10, 2022, for the Veteran's chronic sinusitis disability is the date of receipt of the Intent to File, and June 15, 2022 is the later date between the date of the claim and the date entitlement arose. Thus, the Board finds that entitlement to an earlier effective date for the grant of service connection for sinusitis is not warranted. Reasonable doubt is not for application. See 38 U.S.C. § 5107. As noted, the AOJ construed the Veteran's request for higher level review to also include entitlement to an earlier effective date for increased evaluation. See March 2024 Rating Decision. In February 2024 rating decision, the Veteran was awarded an increased rating to 50 percent for his chronic sinusitis, effective June 21, 2023. By way of background, the Veteran was awarded service connection for chronic maxillary and frontal sinusitis in a September 2022 rating decision and assigned a noncompensable (zero) disability rating. The Veteran did not appeal this decision by filing any of the available administrative review options within one year of the issuance of the decision. See 38 C.F.R. § 3.2500(c). Rather, on October 26, 2022, the Veteran submitted VA Form 21-526EZ requesting an increased rating for his sinusitis disability. This constitutes an initial claim. See 38 C.F.R. § 3.1(p). Notably, if continuing to request an available review option within one year of each prior decision on an issue, a claimant can preserve the effective date associated with the initial claim. 38 C.F.R. § 3.2500(c), (h). Here, the December 2022 rating decision denied the Veteran's claim for an increased rating for his service-connected sinusitis and, on July 25, 2023, within one year of that rating decision, the Veteran filed VA Form 21-8940 Veterans Applications for Increased Compensation Based on Unemployability and requested increased ratings for his (among others) sinusitis disability. When a veteran is seeking higher ratings for their service-connected disabilities by applying for a total disability rating based on individual unemployability (TDIU), the TDIU application (VA Form 21-8940) may serve as a supplemental claim in the AMA when it is filed after VA denies increased ratings for those disabilities. Chisholm v. Collins, 2025 U.S. App. Vet. Claims LEXIS 336. In an October 2023 rating decision, the AOJ deferred the issue of a TDIU but did award an increased rating for sinusitis to 30 percent effective June 21, 2023, the day VA received an Intent to File just prior to receiving the July 25, 2023 TDIU/supplemental claim. On the same day notification of that decision was sent, October 10, 2023, the Veteran filed VA Form 21-526EZ for an increased rating for (in relevant part) chronic sinusitis. In a February 2024 rating decision on "new claim for benefits that was received on July 18, 2023," the AOJ increased the chronic sinusitis rating to 50 percent effective June 21, 2023. However, a review of the record does not show any claim for benefits was sent and/or received on July 18, 2023. Rather, the claims received in that timeframe include only the July 25, 2023 TDIU application (adjudicated in the October 2023 rating decision) and the October 10, 2023 VA Form 21-526EZ which, it appears, was construed by the AOJ as a supplemental claim. Regardless, the Board finds the Veteran has continuously pursued his claim for entitlement to an increased rating for sinusitis, and preserved October 26, 2022, as the earliest possible effective date. As noted, the effective date for an evaluation will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Also, 38 U.S.C. § 5110(b)(3) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section 5110(b)(3)]... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." See Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Here, the remaining question for the Board is when it is factually ascertainable that the Veteran's sinusitis manifested to the level of a 50 percent evaluation. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, based on reductions in earning capacity from specific injuries or combination of injuries. The ratings are intended to compensate, as far as can be practically determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations and are generally considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's sinusitis is currently evaluated as noncompensable from January 10, 2022, and 50 percent disabling from June 21, 2023, under Diagnostic Code 6513. The General Rating Formula (Formula) for sinusitis provides a 10 percent rating for one or two incapacitating episodes per year, or three to six non-incapacitating episodes per year. A 30 percent rating is assigned for three or more incapacitating episodes per year, or more than six non-incapacitating episodes per year. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6513. For the purposes of application of this Formula, an incapacitating episode of sinusitis requires prolonged antibiotic treatment lasting four to six weeks and requires bed rest and treatment by a physician. A non-incapacitating episode of sinusitis is defined as one characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514. During a September 2022 VA sinus examination, the Veteran was diagnosed with a sinus condition of the maxillary and frontal sinuses, with signs/symptoms attributable to his condition consisting of weekly sinus issues, headaches of the orbital region radiating to the frontal and parietal region, pain affecting maxillary and frontal sinuses, and at least 3-4 sinus infections yearly treated with z-packs. The examiner noted the Veteran reported symptoms of sinus headaches, fullness of the ears, and congestion that occur weekly, can last for days, and are aggravated by environmental exposures/skipping medications. Treatment consisted of numerous medications (i.e., Benadryl, antihistamines, Fluticasone, Ipratropium), all of which alleviated his symptoms. The examiner indicated that the Veteran had no non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months, or any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotic treatment in the past 12 months. The examiner also indicated no history of sinus surgery or repeated sinus-related surgical procedures. X-rays of the sinuses were normal. The examiner noted the Veteran's condition impacted his ability to work as he reported more than 5 weeks of work time were lost in the last 12 months. During a September 2022 VA headache examination, the Veteran reported having weekly "sinus headaches" located at orbital region, radiating to frontal and parietal region of intermittent duration that last for about a day at a time, alleviated by rest, over-the-counter ibuprofen, and sinus medication. The Veteran endorsed headache pain at 8 (out of 10) in severity, limiting his activities that required focus and concentration (i.e., using a computer). 2022 private treatment records indicate the Veteran received treatment for cold/flu symptoms several times throughout the year. For instance, in July he complained of a sore throat with symptoms that included cough, headache, congestion, ear pain, rhinorrhea, and swollen glands. He was assessed with acute pharyngitis of unspecified etiology and cough. In August he complained of cold symptoms, was assessed with acute bronchitis, and given a Z-Pak for treatment. In September he presented with congestion/rhinitis, was assessed with bacterial sinusitis, and given a Medrol Pak and amoxicillin. In November he presented with congestion/rhinitis, was assessed with acute upper respiratory infection (URI), and given medications (Medrol Pak, amoxicillin). In December he was again assessed with acute URI, and prescribed medications (Medrol Pak, amoxicillin). See Medical Treatment Record - Non-Government Facility (MTRs), associated 10/26/2022, 11/2/2022, 11/29/2022, 12/7/2022, 8/3/2023. 2022 VA treatment records indicate the Veteran requested an appointment with Allergy in the beginning of the year as he "continue[d] to have horrible allergies that's [sic] has continue[d] to cause issues." On consult in March, he endorsed having congestion, itchy eyes, clear rhinorrhea, postnasal drip with resultant cough about 4 times a year, and that his symptom persisted despite a regimen of Flonase, daily saline rinses, and daily loratadine. He was assessed with non-allergic rhinitis. In September he reported being sick since August with flu, bronchitis, and URI and still felt congested with a cough after completing three rounds of antibiotics. His treatment plan included a continued regimen of nasal sprays and medications. During a November 2022 VA sinus examination, with regard to the Veteran's chronic maxillary and frontal sinusitis condition, the examiner noted he reported current symptoms consisted of headaches, nausea, sinus congestion, dizziness, nose bleeds, and fever. The examiner also noted that the Veteran has had no sinus surgery, and uses nose spray, nasal saline, and allergy tabs daily for treatment. No other pertinent physical findings, complications, signs/symptoms were indicated. 2023 private treatment records reflect that the Veteran presented to urgent care in January 2023, was diagnosed with acute sinusitis and acute cough and prescribed medications. In February, he was seen for complaints of congestion for days. On exam he was noted to have moderate nasal congestion, diagnosed with acute sinusitis and acute cough, and prescribed medications. In May, he was noted to have chronic headaches, especially with cold and damp, and a runny nose and postnasal drip with clear mucus. In June, he was seen for chronic sinusitis wherein he reported just getting over bouts of sinus infection and bronchitis, which were treated with antibiotics and steroids. In July, he was seen at urgent care, assessed with acute URI and acute sinusitis, and prescribed medications. Subsequent clinical notes document continued treatment for his chronic sinusitis. See MTRs, associated 8/16/2023, 1/3/2024. 2023 VA treatment records reflect complaints in January 2023 for "sinusitis is getting worse," and he was having issues with, e.g., headaches, coughing to the point of pulling abdominal muscles, dizziness, ears hurting, light sensitivity, and daily nonstop phlegm, all of which became "increasingly worse since Christmas." In February 2023, Otolaryngology assessed the Veteran with chronic rhinosinusitis and placed an order for a new sinus CT. In September, the Veteran requested an appointment, stating he had been fighting sinusitis and rhinitis on/off for months and had been on several rounds of antibiotics that only worked for 2-3 weeks and then everything returned. His described symptoms included pain behind/around eyes, headaches, dizziness, constant cough, itchy nose/mouth/skin/eyes/throat, sneezing, watery eyes, runny nose, polyps in the nasal passage, trouble with smell, nasal congestion, and extreme fatigue. On Otolaryngology follow-up in October, he reported bilateral nasal congestion, rhinorrhea, postnasal drip, and occasional facial pain/pressure, stating he had 10 sinus infections and bronchitis this year and received antibiotics each time. Recent maxillofacial CT scan of the paranasal sinuses was negative. The Veteran was assessed with chronic rhinosinusitis. During a September 2023 VA sinus examination, the examiner noted the Veteran's diagnoses of chronic sinusitis and allergic rhinitis. The examiner also noted the Veteran's reports that his condition had progressed/worsened since onset with current symptoms consisting of eyes hurt, tired, sore throat, headaches, and pain at a level 8. The examiner noted that the Veteran's maxillary and frontal sinuses were affected by his condition with current findings consisting of chronic sinusitis detected by imaging studies, headaches, pain of affected sinus, tenderness of affected sinus, purulent discharge, crusting, dizziness and pressure behind the eye, and occasional fever. The examiner indicated the Veteran had 7 or more non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months, and no incapacitating episodes of sinusitis requiring prolonged antibiotic treatment in the past 12 months. The examiner also noted the Veteran had no history of sinus surgery, radical sinus surgery or chronic osteomyelitis following surgery, or any sinus-related surgical procedures. X-rays showed radiographic features of chronic sinusitis. A CT scan was pending. Impact on the Veteran's ability to work was noted to be an inability to focus and low productivity from headache and tiredness. During a January 2024 VA sinus examination, the examiner noted the Veteran's diagnoses of chronic sinusitis and allergic rhinitis, as well as a deviated septum. The examiner noted the Veteran's current symptoms consisted of headaches, sneezing, ear pressure, nasal congestion, and watery/itchy eyes. The examiner noted that the Veteran's maxillary and frontal sinuses were affected by his condition with current findings consisting of near constant "daily" sinusitis, headaches, pain of affected sinus, tenderness of affected sinus, and purulent discharge. The Veteran described his head pressure/headaches as feeling of tightness, pain, or congestion in the facial area, forehead, and sometimes behind the eyes that tends to worsen when bending over or lying down. He reported pain and sensitivity when touching or pressing on the face over the sinus cavity. The examiner noted there was some purulent discharge that looked like thick yellowish nasal drainage. The examiner indicated that the Veteran had 7 or more non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months, and three or more incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotic treatment in the past 12 months. The examiner noted that the Veteran had no history of sinus surgery, radical sinus surgery or chronic osteomyelitis following surgery, or any sinus-related surgical procedures. CT of the paranasal sinuses showed a nasal septum mildly deviated to the right. Impact on the Veteran's ability to work was noted to include impaired sleep due to congestion, sinus pain and pressure, as well as fatigue affecting productivity. In addition, when sinusitis is active, the examiner indicated the Veteran would have decreased concentration, brain fog, and impaired focused/cloudy thinking. Other limitations were noted as decreased participation in physical activities and missing work due to recovery from sinus infections. Based on this evidence, the February 2024 rating decision granted a 50 percent rating from June 21, 2023. After reconsideration of the evidence, and resolving any doubt in his favor, the Board finds the medical evidence reflects that the Veteran was experiencing a factually ascertainable increase in his service-connected sinusitis during the period on appeal (from October 26, 2022). The findings noted in the 2023/2024 VA sinus examinations indicate symptomatology that more closely approximate the criteria for a 50 percent disability rating, to include symptoms of near constant sinusitis characterized by headaches, pain and tenderness of affected sinus and purulent discharge. The Board finds the Veteran's VA and private treatment records during the appeal period further corroborate his worsening sinus symptoms. However, a review of the evidence of record does not reflect it was factually ascertainable that the Veteran's sinus condition had worsened to the extent prior to his October 2022 claim, that a 50 percent rating would be warranted. Accordingly, after affording the Veteran the benefit of the doubt, the Board finds the evidence weighs in favor of assigning a rating of 50 percent, the schedular maximum, for the Veteran's service-connected sinusitis from October 26, 2022, as the earliest possible effective date. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to earlier effective dates for lumbosacral strain with DDD The Veteran contends "[e]ntitlement to an earlier effective date of September 28, 2008, for lumbosacral strain with degenerative disc disease original date of claim is September 28, 2008." See March 2024 VA Form 20-0996, Request for Higher-Level Review. The Board notes that no claim for benefits was submitted and/or received, formally or informally, on/about September 28, 2008. In this case, the AOJ granted service connection for lumbar strain in a March 2005 rating decision and assigned a 20 percent disability rating effective on January 16, 2005, the day after the Veteran's separation from service. There is no available earlier date of service connection, as this is the earliest date allowable by law. See 38 C.F.R. § 3.400 (b)(2)(i). Further, in a September 2006 rating decision, the AOJ continued the 20 percent rating but recharacterized the back disability as degenerative disc disease (DDD), lumbar spine [hereinafter "low back" disability]. In a February 2017 decision, the AOJ again continued the 20 percent rating. The Veteran was sent notification of that rating decision on February 14, 2017. The Veteran did not appeal the February 2017 rating decision, nor was additional evidence received prior to the expiration of the appeal period. Hence, that rating decision, and all its components, is final. See 38 C.F.R. §§ 3.104, 3.156, 20.1103. On October 26, 2022, the Veteran submitted VA Form 21-526EZ requesting an increased rating for his low back disability. This constitutes an initial claim. See 38 C.F.R. § 3.1(p). The December 2022 rating decision denied the Veteran's claim for an increased rating. On July 25, 2023, within one year of that decision, the Veteran filed VA Form 21-8940 (TDIU), requesting an increased rating for (among others) his low back disability. The Board finds the July 2023 TDIU a supplemental claim pursuant to Chisholm, supra. In October 2023, the AOJ deferred the issue of TDIU but awarded the Veteran an increased rating for his low back disability to 40 percent effective June 21, 2023, the day VA received an Intent to File just prior to receiving the July 25, 2023 TDIU. On the same day notification of that decision was sent, the Veteran filed a claim for an increased rating for his low back disability in October 2023, and, in a February 2024 decision, the AOJ continued the 40 percent disability rating. For the same reasons as given earlier, the Board finds that the Veteran has continuously pursued his claim for entitlement to an increased rating for his low back disability, and preserved October 26, 2022, as the earliest possible effective date. The remaining question for the Board then is when it is factually ascertainable that the Veteran's low back disability manifested to the level of a 40 percent evaluation. His low back disability is currently evaluated as 20 percent disabling prior to June 21, 2023, and 40 percent disabling thereafter, under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Of note, the rating criteria for the musculoskeletal system was updated, effective February 7, 2021. Generally, claims pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. However, as the current claim was filed after the criteria were amended, only the new rating criteria apply in this case. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, painful motion and X-ray evidence of degenerative arthritis; a 40 percent rating, warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was afforded a VA back examination in November 2022. The examiner noted the Veteran's diagnoses of DDD lumbar spine, status post L spine surgery (2008, 2010). The Veteran endorsed current symptoms of pain, numbness and stiffness from back down left leg, with treatment consisting of prescription medications. He indicated that his condition impacted his ability to sleep, lay on the left side, and sit for prolonged periods. He also indicated he often has to stay in bed and wakes up sore. He endorsed flare-ups "once a week," severe in nature, which last "3 to 4 days." He stated flare-ups are precipitated by normal everyday activities, laying on the left side, excessive bending, and sitting for long periods of time, and are alleviated by rest, medication, and physical therapy. Active range of motion (ROM) testing revealed forward flexion to 80 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Passive ROM testing produced the same results. Pain was exhibited on forward flexion and extension, on active and passive ROM. No objective evidence of crepitus, localized tenderness or pain on palpation of the joint or associated soft tissue, or muscle atrophy was indicated. The Veteran exhibited full 5 (out of 5) muscle strength testing, normal sensations to light touch, and no radicular pain or any other signs/symptoms due to radiculopathy. No ankylosis or intervertebral disc syndrome (IVDS) of the spine was indicated. The Veteran performed repetitive use testing with no additional loss of function or ROM after 3 repetitions indicated. The Board, however, finds this examination inadequate for adjudication purposes. Specifically, the examiner indicated that during repeated use over time, and during flare-ups, the procured evidence, including statements from the Veteran, suggested pain significantly limited functional ability over time. However, when asked to estimate the ROM immediately after repeated use over time or during flare-ups, the ROM did not change from the initial ROM. Such findings are contradictory. Especially since the Veteran's earlier contentions clearly support reduced ROM during repeated use over time and/or during a flare-up. During a September 2023 VA back examination, the Veteran's diagnoses of DDD and lumbosacral strain were noted. The Veteran indicated that his condition had progressed/worsened since onset, his pain was currently at 9, and he used various treatments (i.e., Tramadol, acetaminophen, lidocaine patches, acupuncture, deep tissue massage) and underwent back surgery twice (2006, 2019). He endorsed having daily flare-ups characterized with shooting pain/electric shock down middle of 2 toes, aching pain in knee/right hip, and nausea on occasion. He stated flare-ups are precipitated by bending over, carrying items, driving, taking a bath, and prolonged sitting, and are alleviated only by medication. He endorsed additional loss/impairment after repeated use, including an inability to walk or sit for long periods, exercise, or do certain activities of daily living, such as self-care. Active ROM testing revealed forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran exhibited pain with each tested motion; however, passive ROM was not tested as it was medically contraindicated. There was objective evidence of crepitus. There was also localized tenderness or pain on palpation of the joint or associated soft tissue indicated as "lower back" with severity of "8" due to moderate DDD L5-S1 with disc space narrowing. He was noted with inability to stand up when muscle spasms occur and additional factors contributing to his condition included his interference with standing, less movement than normal, and weakened movement. He exhibited reduced muscle strength on hip flexion on both sides but had normal reflexes and sensations to touch. He had no muscles atrophy, radicular pain or any other signs/symptoms due to radiculopathy, ankylosis, or IVDS. No further estimated ROM measurements were indicated/provided, and the Veteran performed repetitive use testing with no additional loss of function or ROM after 3 repetitions indicated. Based on this evidence, the October 2023 rating decision granted a 40 percent rating from June 21, 2023. VA and private treatment records reflect ongoing treatment for the Veteran's low back issues throughout the appeal period. In May 2023 private treatment records, the Veteran complained of ongoing back pain since March 2023, and indicated his prescribed medications were having "mild effect." On exam, his lumbosacral range of motion, flexion was noted as "reduced to 15/90 degrees," and he exhibited bilateral paraspinal spasm and tenderness of lumbar muscles. Acute exacerbation of chronic lumbar discitis was indicated. See MTRs, associated 7/21/2023. After reconsideration of the evidence, and resolving any doubt in his favor, the Board finds the medical evidence reflects that the Veteran was experiencing a factually ascertainable increase in his service-connected low back condition during the period on appeal (from October 26, 2022). While VA and private treatment notes reflect ongoing treatment for the Veteran's low back issues, it was not until the 2023 private treatment records and VA back examination, that the Veteran demonstrated measurements warranting the increased rating to 40 percent. A review of the medical records does not reflect it was factually ascertainable that the Veteran's low back condition had worsened to the extent in the year prior to his October 2022 claim, that a 40 percent rating would be warranted. Accordingly, after affording the Veteran the benefit of the doubt, the Board finds the evidence weighs in favor of assigning a rating of 40 percent for the Veteran's service-connected low back disability from October 26, 2022, the earliest possible effective date. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; see also Lynch, supra. 3. Entitlement to an earlier effective date for allergic rhinitis The Veteran contends "[e]ntitlement to an earlier effective date of March 11, 2005 for service connection for allergic rhinitis original date of claim is March 11, 2005." See March 2024 VA Form 20-0996, Request for Higher-Level Review. However, the Board notes that no claim for benefits was submitted and/or received, formally or informally, on/about March 11, 2005. In this case, the AOJ granted service connection for allergic rhinitis in a March 3, 2005 rating decision and assigned a noncompensable (0 percent) disability rating effective on January 16, 2005, the day after the Veteran's separation from service. There is no available earlier date of service connection, as this is the earliest date allowable by law. See 38 C.F.R. § 3.400 (b)(2)(i). The Veteran was sent notification of that rating decision on March 17, 2005. The Veteran did not appeal the March 2005 rating decision, nor was additional evidence received prior to the expiration of the appeal period. Hence, that rating decision, and all its components, is final. See 38 C.F.R. §§ 3.104, 3.156, 20.1103. The evidence of record reflects that, on June 9, 2021, VA received an Intent to File a claim for compensation. See June 2021 Notification Letter. However, that Intent to File was extinguished by the completed claim submitted by the Veteran, and received by the VA, on June 28, 2021. See June 2021 VA Form 21-526EZ, Fully Developed Claim (Compensation). See also 38 C.F.R. § 3.155. Next, on July 16, 2021, the Veteran submitted VA Form 21-526EZ requesting an increased rating for his allergic rhinitis. This constitutes an initial claim. See 38 C.F.R. § 3.1(p). In an October 2021 rating decision, the AOJ increased the rating to 10 percent effective July 16, 2021, the day VA received the claim. Subsequent rating decisions continued the 10 percent disability rating. See July 2023 and February 2024 Rating Decisions. As noted, the effective date of an award of increased compensation to a Veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year of such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Otherwise, the effective date is the date of receipt of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Here, the Veteran's allergic rhinitis is currently evaluated as 0 percent disabling prior to July 16, 2021, and 10 percent disabling thereafter, under 38 C.F.R. § 4.97, Diagnostic Code 6522. Under DC 6522, a 10 percent disability rating is assigned 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 maximum 30 percent disability rating is assigned for allergic rhinitis with polyps. 38 C.F.R. § 4.97. The Veteran was afforded a VA examination in September 2021 to evaluate his allergic rhinitis. The examiner diagnosed chronic sinusitis and allergic rhinitis and noted the Veteran's medical history of allergic rhinitis in service, including his in-service symptoms of runny nose, sinus congestion, itchy eyes, postnasal drainage causing coughing at times and headache. The examiner also noted the Veteran's symptoms are aggravated by sudden change in the weather, and that he experiences ongoing recurrence of episodes up to 6-7 times a year, has recurrent sinus infections requiring antibiotic prescriptions at least twice a year, and manages his symptoms with Mucinex, Flonase, and loratadine. With regard to rhinitis, the examiner indicated that there is greater than 50 percent obstruction of the nasal passage on both sides due to the rhinitis. The examiner also noted that there is complete obstruction on the left side, and the right side, due to rhinitis. However, there was no permanent hypertrophy of the nasal turbinates or nasal polyps. The Veteran also had no granulomatous conditions. No other pertinent physical findings, complications, conditions, signs, or symptoms related to the allergic rhinitis were indicated, and no imaging studies of the sinuses were performed. The examiner noted that the Veteran's sinusitis/rhinitis condition impacted his ability to work in that he missed a lot of workdays as the onset of symptoms, at times, would lead to flu-like symptoms and pneumonia. VA treatment records include a December 2020 primary care follow-up note in which a Problems List included allergic rhinitis and acute sinusitis. A June 2021 primary care note also included allergic rhinitis and acute sinusitis under the Active Problems list. At that time, the Veteran denied any fever, cough, or shortness of breath, and "no known allergies" was indicated. An Otolaryngology consult in September 2021 indicated that the Veteran was referred for evaluation and allergic rhinitis as he had reported difficulty using his sleep apnea-associated sleep mask. He was noted to have history of chronic nasal congestion and sinus infections and endorsed bilateral congestion and frequent facial pressure/pain. He denied any current fever, chills, purulent rhinorrhea, or decreased smell/taste. He endorsed using over-the-counter Flonase for treatment. On review of his systems, he denied any headaches, weakness, dizziness, cough, or nausea. On physical examination, he exhibited no tenderness over the sinuses, his ears were clear, and his nose exam showed nares patent, septum midline without perforation or lesions, inferior turbinates as normal, and there was no discharge, polypoid masses or growth, and no mucosal discoloration. The clinician diagnosed chronic rhinosinusitis and ordered diagnostic testing and medications (Flonase, saline). Private treatment records include a March 2021 progress note indicating the Veteran presented to clinic for COVID testing, complaining of sore throat and shortness of breath for 4 days. He denied any congestion, rhinorrhea, sinus pressure, sinus pain, or sneezing at that time. Testing results were negative. He was treated for sinusitis, bronchitis, and URIs in April, June, and August 2021. Treatment included medications (e.g., amoxicillin, Flonase, ibuprofen). See MTRs, associated 9/15/2021, 6/15/2022, 11/2/2022, 8/3/2023. After careful consideration of the evidence of record, the Board does not find it is factually ascertainable that the Veteran's allergic rhinitis condition had worsened to the extent in the year prior to his July 16, 2021 claim, that a 10 percent rating would be warranted. Specifically, the Veteran does not suggest, nor do the treatment records indicate, that the Veteran experienced any nasal blockage greater than 50 percent on his left or right side, or a complete blockage on any one side prior to the findings noted in the September 2021 VA examination. Additionally, no nasal polyp(s) were found. Accordingly, the Board finds that an effective date prior to July 16, 2021, for the award of a 10 percent disability rating for the Veteran's allergic rhinitis, has not been demonstrated by the record. Therefore, the claim must be denied. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Picard 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.