Citation Nr: A25041232 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240820-465318 DATE: May 6, 2025 ORDER Entitlement to an effective date earlier than March 31, 2021, for the award of a 30 percent rating for allergic rhinitis, is granted. Entitlement to a rating in excess of 10 percent for tinnitus, is denied. Entitlement to service connection for a sleep disturbances disability, is denied. FINDINGS OF FACT 1. Resolving any reasonable doubt in favor of the Veteran, it is factually ascertainable that the Veteran met the criteria for a higher rating for allergic rhinitis, within one year of the Veteran's claim for an increased rating on March 31, 2021. 2. The Veteran's service-connected tinnitus does not exhibit an exceptional disability picture, such as exhibiting, marked interference with employment or frequent periods of hospitalization, 3. The Veteran does not have a current diagnosis of sleep disturbances, or any other separately diagnosed disability manifested by sleep disturbances; his symptoms of sleep disturbances are attributed to his nonservice-connected sleep apnea. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than March 31, 2021, for the award of a 30 percent rating for allergic rhinitis have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3. 2. The criteria for a rating in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260. 3. The criteria for entitlement to service connection for a sleep disturbances disability, have not 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 August 1996 to June 1997 and August 2006 to August 2012. The Veteran filed an intent to file (ITF) in March 2021, and subsequently, a complete claim for an earlier effective date for allergic rhinitis, an increased rating for tinnitus, and service connection for sleep disturbances, in September 2021. In June 2022, the agency of original jurisdiction (AOJ) granted an earlier effective date for allergic rhinitis, of March 31, 2021, and denied the increased rating claim for tinnitus and service connection claim for a sleep disturbances disability. In May 2023, the Veteran filed a VA Form 20-0996, higher level review (HLR) appeal, which was denied by the AOJ in August 2023. In the August 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 June 2022 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 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 claims, 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 Date Generally, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The reference above to "the date entitlement arose" is not defined in the current statute or regulation. The Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefit sought; this is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An exception to the above rule applies in certain circumstances for increased compensation claims. The effective date of an award for an increased rating is the earliest date when it is factually ascertainable that an increase in disability occurred, if the application for an increase is received within one year from the date of increase. Otherwise, the effective date is the date of receipt of the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). 1. Entitlement to an effective date earlier than March 31, 2021, for the award of a 30 percent rating for allergic rhinitis. The Veteran seeks an effective date earlier than March 31, 2021, for the grant of a 30 percent disability rating for allergic rhinitis. Specifically, the Veteran, through his representative, argues that in a September 18, 2021, VA examination, nasal polyps were noted, which justifies an earlier effective date of the assignment of the increased disability rating of 30 percent, from March 31, 2021. See August 2024 VA Form 10182. Specifically, the Veteran's representative argues that evidence of nasal polyps, from September 18, 2021, demonstrate an increase of severity of the disability, and the effective date should honor the one year "look back period" of the filing of the increased rating claim. See May 2023 Third Party Correspondence. For the following reasons, the Board finds that an earlier effective date of March 31, 2020, is warranted. By way of history, VA received the Veteran's Intent to File (ITF) on March 31, 2021. On September 2, 2021, VA received the Veteran's VA Form 21-526EZ, claiming an increased rating for his allergic rhinitis, which was rated 10 percent disabling, from August 25, 2012. The Veteran underwent a VA examination in September 2021, which showed a diagnosis of allergic rhinitis and nasal polyps, meeting the criteria for a 30 percent rating. In a June 2022 rating decision, the AOJ awarded the Veteran a 30 percent rating for allergic rhinitis, effective March 31, 2021, based on the date of receipt of his ITF. The Veteran appealed this effective date. He asserts that he is entitled to an earlier effective date because it is factually ascertainable, he met the criteria for a higher rating back to, at least, March 31, 2020. See August 2024 VA Form 10182; see also May 2023 Third Party Correspondence. While the Board notes that, generally, the effective date can be no earlier than the date of receipt of the claim for increase, there is an exception to that general rule, in which the effective date of an award for an increased rating is the earliest date when it is factually ascertainable that an increase in disability occurred, if the application for an increase is received within one year from the date of increase. 38 C.F.R. § 3.400(o)(2). This is a special provision for an increased rating award, which allows for an effective date up to one year prior to the date of receipt of the claim, sometimes informally called "the one-year lookback period." Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of a complete increased rating claim or intent to file a claim, then the effective date will be the date on which that increase is shown to have occurred; otherwise, the effective date will be the date of receipt of the claim. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). The purpose of this provision is to provide a one-year grace period for filing a claim following any increase in severity of a service-connected disability. Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010). VA must look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place. VAOPGCPREC 12-98. See also Swain v. McDonald, 27 Vet. App. 219, 223-24 (2015) (the Board must review all relevant evidence of record to determine when the increase in the disability can be ascertained); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date"). The Court more recently reiterated that the Board errs when it reflexively assigns the effective date of a VA examination as the date of an increased evaluation; instead, the Board must analyze the examination report alongside the other lay and medical evidence of record to determine when an increase in disability actually occurred. Estevez v. McDonough, 36 Vet. App. 157, 175 (2023). Turning to the evidence, a review of the Veteran's VA treatment records show that the Veteran underwent sinus surgery in 2009. See January 2024 CAPRI. Thereafter, a July 2012 VA examination reported that the Veteran was diagnosed with allergic rhinitis and post status adenoidectomy, from July 13, 2012, and exhibited no nasal polyps, at that time. See July 2012 C&P Exam. The Veteran filed his claim for an increase on March 31, 2021 (date of receipt of the intent to file). In September 2021, the Veteran was afforded an in-person VA examination, where his records, including his VA e-folder, were reviewed. The VA examiner reported that the Veteran exhibited nasal polyps. Additionally, the Veteran reported ongoing care and treatment for symptoms of his allergic rhinitis. Symptoms which include nasal congestion, itchy watery eyes, sinus headaches and/or pressure, and post-nasal drip, which treatment including, but not limited to, nasal sprays and antihistamines. See September 2021 C&P Exam. In August 2022, the Veteran reported to a VA medical provider that he noticed he had a reduction in snoring, after his sinus surgery (2009), but it only lasted for about one year, which resulted in him using "lots of nasal sprays and sinus washes that led to polyps and heavy snoring." See May 2024 VAMC Other Output/ Reports. From August 25, 2012, to March 31, 2021, the Veteran had a clear worsening in the severity of his allergic rhinitis. The Veteran's lay statements clearly document a pathology where his condition worsened over time, initially beginning with his sinus surgery in 2009, leading into post status residuals by 2012, producing a noncompensable rating, the treatment of nasal sprays, and finally by March 2021, an increase in severity, to a 30 percent disability rating, due to exhibiting nasal polyps. It is logical to assume that the Veteran's nasal polyps, which emerged due to an increasing severity of the Veteran's disability, justifying the increase in rating to 30 percent, would have been present, prior to the September 18, 2021, VA examination. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and find that it was factually ascertainable that the Veteran exhibited an increase in severity of his allergic rhinitis, from March 31, 2020, one year prior to the Veteran's claim for an increased rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Lynch, 21 F.4th at 780-81. In sum, the Veteran filed his claim for an increase within one year of this factually ascertainable increase in symptomatology. Therefore, the Board resolves any reasonable doubt in favor of the Veteran and finds that the exception outlined in 38 C.F.R. § 3.400(o)(2) is applicable here, with March 31, 2020, as the earliest date it could have become factually ascertainable that an increase in disability occurred. In light of the above, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 30 percent rating for allergic rhinitis, has been met or more nearly approximated throughout the entire duration of the appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; 4.3; Lynch, 21 F.4th at 780-81. Accordingly, the assignment of a 30 percent rating, from March 31, 2020, is warranted. This is the maximum rating available under the rating schedule for allergic rhinitis and a higher rating cannot be assigned. The Veteran's appeal is therefore granted in full. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where 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(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 780-81 (Fed. Cir. 2021). 2. Entitlement to a higher evaluation of tinnitus currently evaluated as 10 percent disabling is denied. The Veteran, through his representative, contends that he is entitled to an extraschedular rating for his service-connected tinnitus, from August 25, 2012. See August 2024 VA Form 10182. The Veteran was granted service connection for tinnitus with a rating of 10 percent effective August 25, 2012, in a November 2012 AOJ rating decision. The Veteran filed a new claim for an increased rating and/or extraschedular consideration for tinnitus in September 2021. See September 2021 VA Form 21-526EZ. Accordingly, the period on appeal herein is from September 2, 2021, the date VA received the Veteran's claim, plus a one-year look back period to September 2, 2020, to June 3, 2022, the date of the AOJ rating decision on appeal herein. The Board notes that a 10 percent rating is the maximum schedular rating under 38 C.F.R. § 4.87, Diagnostic Code 6260, and there is no provision for assignment of a 10 percent evaluation for tinnitus of each ear. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplates the Veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated impairment does not show that the rating criteria are inadequate to describe his disability picture. VA and private treatment records throughout the appeal period show that in July 2012, the Veteran reported recurrent tinnitus, with onset of negative inner ear pressure; in March 2020, the Veteran reported ringing in his ears that were constant and spiked at times; in May 2022, tinnitus was noted as an active diagnosis; in December 2022, tinnitus was noted as an active diagnosis; in July 2023, tinnitus was noted as an active diagnosis; and in October 2024, tinnitus was noted as an active diagnosis. See July 2012 C&P Exam; see also March 2023 CAPRI; see also May 2024 CAPRI; see also January 2024 CAPRI; see also December 2024 CAPRI. The Board finds that the Veteran's service-connected tinnitus does not exhibit an exceptional disability picture, such as exhibiting, marked interference with employment or frequent periods of hospitalization, and that the Veteran's reported effects are contemplated by the schedular rating criteria, in full. Notably, in Doucette v. Shulkin, the United States Court of Appeals for Veterans Claims has made clear that a diagnostic code need not list every word of type of symptom to contemplate a type of functional effect. For instance, problems with hearing sounds in crowds, televisions, or telephones are not listed in the diagnostic code for hearing loss but are nonetheless contemplated because they are actual effects of the hearing loss in daily life. See 28 Vet. App. 366 (2017). Here, although in the context of a tinnitus extraschedular rating claim, the Doucette decision by extension shows that the symptoms of the Veteran's tinnitus, and their functional effects, are contemplated by the rating schedule evaluating the disability. Thus, the threshold issue under Thun is not met, and further consideration of an extraschedular rating is not warranted. The Veteran's service-connected tinnitus has been assigned the maximum schedular rating pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260. For the above reasons, the evidence persuasively weighs against entitlement to a rating in excess of 10 percent for tinnitus, to include whether extraschedular consideration is warranted, throughout the duration of the appeal period. As the evidence is neither evenly balanced nor approximately so, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th at 780-81. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1101; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where 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(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 780-81 (Fed. Cir. 2021). 3. Entitlement to service connection for sleep disturbances. The Veteran seeks service connection for sleep disturbances, which he contends is caused by his service, and/or alternatively, by his service-connected sinusitis. See September 2021 VA Form 21-526EZ; see also June 2022 Rating Decision - Narrative. In December 2021, the Veteran was afforded an in-person VA examination where his records, including his VA e-folder, were reviewed. The VA examiner opined that the Veteran's claimed condition of sleep disturbances is less likely than not due to or the result of the Veteran's service-connected sinusitis, because the Veteran, does not meet the criteria for a diagnosis of a sleep disturbances disability. See December 2021 C&P Exam. In August 2022, the Veteran was afforded a telehealth medical consult, where the Veteran reported severe daytime hypersomnolence, but a VA medical provider attributed the Veteran's symptoms to his non-service-connected obstructive sleep apnea, citing, "Insomnia with staying asleep likely related to the above (OSA)." See May 2024 VAMC Other Output/ Reports; see also January 2024 CAPRI. In September 2022, the Veteran was afforded a sleep study, where he reported, "I slept well after I used CPAP." Further, the Veteran was reported as having normal period limb movement arousal frequency and severe obstructive sleep apnea. In December 2022, the Veteran also stated that he, "sleeps great with CPAP every night." Lastly, in June 2023, the Veteran specifically denied any sleep disturbances. See January 2024 CAPRI. Additionally, in October 2024, the Veteran also repeated the comment, that he "sleeps great with CPAP every night." See December 2024 CAPRI. Both the Veteran and the medical providers of record attribute any sleep issues or sleep disturbance related symptoms to the Veteran's obstructive sleep apnea. The Veteran even acknowledged to his medical provider that he felt his sleep issues were related to his non-service-connected obstructive sleep apnea, "...aware about broken sleep as wakes 4-5 times a night...difficulty staying asleep, himself admits it is due to obstructive sleep apneas." See January 2024 CAPRI. Based on a careful review of the evidence of record, the Board finds that the evidence weighs against finding that service connection for sleep disturbances is warranted because the Veteran is not shown to have a disease or disability manifested as sleep disturbances. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a diagnosed disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the Board finds that the Veteran does not have a current diagnosis of a sleep disturbances disability, at any time proximate to, or during, the appellate period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board acknowledges that the Veteran has reported symptoms of sleep disturbances; however, his treating physicians and examiners have attributed these symptoms to his nonservice-connected obstructive sleep apnea (the RO has previously denied the Veteran's service connection claim for sleep apnea). Moreover, the Board notes that a complaint or symptom is not a "disability" for VA purposes. The Board acknowledges the Veteran's assertions that he experiences sleep disturbances. While the Veteran is competent to report symptoms of a disability, he does not have the specialized medical training to render a specific diagnosis. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his assertions are not considered competent and do not weigh against the probative value of the medical treatment records, including the December 2021 VA examination, which does not show a medical disease or disability producing the symptoms of sleep disturbances. Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of current disability there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. Thus, in the absence of competent evidence showing a currently diagnosed disability manifested by sleep disturbances, it is unnecessary to address the remaining elements of the claim for service connection. See Id. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the Veteran has not suggested that he suffers from symptomatology which cause any functional impairment or economic inadaptability. Because the evidence persuasively weighs against finding that the Veteran has a currently diagnosed sleep disturbances disability, the benefit of the doubt doctrine is not for application as to this claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th at 780-81. Accordingly, service connection for sleep disturbances is denied. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bastin, Bardia 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.