Citation Nr: A26008317 Decision Date: 01/28/26 Archive Date: 01/28/26 DOCKET NO. 241203-500107 DATE: January 28, 2026 ORDER Entitlement to an initial compensable disability rating for allergic rhinitis is denied. Entitlement to an initial compensable initial disability rating for hypertension associated with obstructive sleep apnea is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU rating) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran's allergic rhinitis does not result in greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction of the nasal passage on one side, or nasal polyps. 2. The Veteran's hypertension has not been manifested by a history of diastolic pressure predominantly 100 or more, or diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.31, 4.97, Diagnostic Code (DC) 6522. 2. The criteria for an initial compensable disability rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, DC 7101 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1989 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2024 and September 2024 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2024 and September 2024, the Veteran filed Requests for a Higher Level Review of the August 2024 and September 2024 rating decisions. In a November 2024 Higher Level Review rating decision, the RO continued the denial of the claims. In December 2024, the Veteran perfected appeal to the Board by filing a VA Form 10182 Notice of Disagreement (NOD), selecting Direct Review of the evidence by a Veterans Law Judge. Thus, the Board will review evidence as of the date of the August 2024 and December 2024 rating decisions. Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disability incurred or aggravated during service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and explain the reasons and bases for conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the earlier date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. 38 C.F.R. § 3.400(o)(2). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2. The Board will consider whether staged ratings should be assigned to compensate for times when the disability may have been more severe than at other times during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Although the Veteran is competent to report his own symptoms and events he personally witnessed or took part in, he is not competent to opine as to the etiology of his own medical diagnoses. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Lay testimony is competent as to features or symptoms, but not etiology, of an injury or illness. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, there must be a showing that the evidence is not in approximate balance and is persuasively against the Veteran's claim. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F. 4th 776, 781 (Fed. Cir. 2021). 1. Entitlement to an initial compensable disability rating for allergic rhinitis is denied. The Veteran seeks entitlement to an initial compensable rating for his service-connected allergic rhinitis. Here, the Veteran's allergic rhinitis has been assigned a noncompensable rating pursuant to 38 C.F.R. § 4.97, Diseases of the nose and throat, DC 6522 for allergic or vasomotor rhinitis. 38 C.F.R. § 4.97 DC 6522. In this regard, 38 C.F.R. § 4.97 DC 6522 provides that a 10 percent rating is assigned for allergic rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. Id. A 30 percent rating is assigned for allergic rhinitis with nasal polyps. Id. In every instance where the Rating Schedule does not provide a zero percent rating for a Diagnostic Code, a zero percent rating is assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Turning to the evidence of record, the Veteran underwent a VA sinusitis/rhinitis and other conditions of the nose, throat, larynx and pharynx examination in October 2022, at which time a diagnosis of allergic rhinitis was confirmed. The examiner noted that the Veteran treats the condition with Fluticasone and neti pot. The examiner reported that an October 2022 complete sinus x-ray revealed clear paranasal sinuses. The examiner noted that the Veteran reported current symptoms of nasal congestion, runny nose and crusting by morning. Upon examination, the examiner reported that the Veteran had other pertinent physical findings of nasal mucosa erythematous. However, in regard to the condition, the examiner found that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction on the left side, complete obstruction on the right side due to rhinitis, nor permanent hypertrophy of the nasal turbinates, nasal polyps, nor a granulomatous condition. The examiner further found that the Veteran had not loss of part of the nose or other scars of the nose exposing both nasal passages, nor causing loss of part of one ala nor causing any other disfigurement. Turning to the VAMC treatment records (VATRs), an August 2020 VATR notes the Veteran's past medical history of rhinoplasty 20 years ago. An October 2023 VATR reflects that the Veteran was diagnosed with rhinitis and requested Flonase. The record further reflects an assessment of chronic rhinitis, a plan of Flonase and discussion that the Veteran may benefit from Montelukast given Eosinophilia. An August 2024 VATR reflects that the Veteran's medication includes Fluticasone for allergic rhinitis. Here, the Board acknowledges the Veteran's reported symptoms of nasal congestion, runny nose and crusting at the October 2022 VA examination and the records note of treatment of the condition with Flonase, Fluticasone and neti pot. Here, it is unclear whether such treatment provides any ameliorative effects on the Veteran's symptoms and in this case, the examiner did not directly address whether there are any ameliorative effects of the Veteran's use of prescription treatment and neti pot as to the symptoms of his allergic rhinitis. The Board notes that when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Accordingly, while the ameliorative effects of such medication were not directly addressed in the October 2022 VA examination, the examiner noted review of the Veteran's claims file. The examiner was apprised of information included the VATRs, which is the August 2020 VATR noting the Veteran's history of rhinoplasty, as well as the Veteran's lay statement of treatment with Fluticasone and neti pot. In light of this, the October 2022 VA examiner found that the October 2022 complete sinus x-ray revealed clear paranasal sinuses. Second, the Board finds that Veteran's lay statements do not suggest the specific type of symptoms or treatment history required for a compensable rating under 38 CF.R. § 4.97 DC 6522. The Board looks to the Veteran's VATRs for further context of the Veteran's lay statements. Here, the VATRs of record do not reflect note of boggy turbinates for the period on appeal. The Board acknowledges that for the history of the condition, the Veteran's records do not describe report of polyps nor obstruction of the nasal passage. The Veteran's medical providers have not assessed the Veteran's rhinitis condition with polyps, nor with obstruction of the nasal passage. Neither does the record reflect that the Veteran has complained of the ear, nose and throat at his primary care visits for the period on appeal. Nonetheless, even with the documented history of the condition, or even the past medical history of rhinoplasty, the VATRs do not reveal that the Veteran suffered from nasal obstruction greater than 50 percent in both nasal passages or complete obstruction on one side for a 10 percent rating nor nasal polyps for a 30 percent rating for the period on appeal. Thus, the Veteran has never reported having polyps or nasal obstruction to a degree warranting a compensable rating. These two factors, nasal obstruction and the existence of nasal polyps, are the pertinent criteria necessary for the assignment of a compensable rating under DC 6522. Hence, based on the totality of the evidence and the evaluation, the Veteran has no symptoms of either allergic rhinitis resulting in greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction of the nasal passage on one side for a 10 percent rating nor nasal polyps for a 30 percent rating and there is nothing in the evidence of record indicating that the Veteran's use of antihistamines is the reason for the examiner's finding of such. In reaching its conclusions in the instant case, the Board has afforded probative value to the Veteran's assertions that he is entitled to a compensable rating for his allergic rhinitis. In this regard, however, the Board must consider the totality of the evidence of record when analyzing the criteria laid out in the Rating Schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds that the medical evidence of record-in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his rhinitis in light of the rating criteria-to be persuasive. Based on the foregoing evidence, the Board finds that the Veteran's symptoms of allergic rhinitis did not rise to the severity required for an initial compensable rating for his allergic rhinitis. There is no indication in either the medical evidence or his lay statements that he ever suffered from nasal obstruction greater than 50 percent in both nasal passages or complete obstruction on one side for a 10 percent rating nor nasal polyps for a 30 percent rating. Thus, the Board finds that the evidence persuasively weighs against a finding that the Veteran met the criteria for an initial 10 percent disability rating or higher for his service connected allergic rhinitis. Accordingly, entitlement to an initial compensable rating for allergic rhinitis is denied. 2. Entitlement to an initial, compensable disability rating for hypertension associated with obstructive sleep apnea is denied. The Veteran seeks entitlement to an initial compensable disability evaluation rating for his service connected hypertension associated with obstructive sleep apnea. The Veteran's hypertension associated with obstructive sleep apnea is rated at a noncompensable disability evaluation rating, effective March 24, 2022. The Veteran's hypertension is rated under 38 C.F.R. § 4.104 DC 7101, Hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is assigned where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more which requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure of predominantly 120 or more. A maximum 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. The term "predominantly" as used in DC 7101 is not defined in the rating criteria. Merriam-Webster defines predominant to mean being most frequent or common. See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. The Board may factor the ameliorative effects of blood pressure medication into its analysis of claims for increased ratings for hypertension because DC 7101 expressly mentions the effect of hypertension medications. See McCarroll v. McDonald, 28 Vet. App. 267-77 (2016). Turning to the evidence of record, VA medical records dated during the rating period show diastolic blood pressures predominantly below 100 and systolic blood pressures predominantly below 160. These records reflect that the Veteran's report that he started monitoring his vitals at home, and that his blood pressure readings were lower than 130/90. Further, the VA examinations of record reflect that examiners have found that the Veteran does not have a history if a diastolic blood pressure elevation to predominantly 100 or more. Illustratively, a March 2018 VATR notes a blood pressure reading of 128/80. An August 2019 VATR notes a blood pressure reading of 126/81. A September 2021 VATR notes a blood pressure reading of 133/84. The Veteran underwent a VA hypertension examination in January 2023, at which time a diagnosis of hypertension was confirmed. The examiner noted that the Veteran's treatment plan included taking continuous medication of amlodipine. The examiner reported that the Veteran did not have a history if a diastolic blood pressure elevation to predominantly 100 or more. The examiner reported current blood pressure readings of 129/80, 131/81 and 130/80. The examiner found no other pertinent physical findings or complications of the hypertension condition. The Veteran underwent a VA hypertension examination in October 2023. The examiner noted that the Veteran managed the condition with amlodipine. The examiner noted that the Veteran stated that his blood pressure typically falls in the 130s/80s. The examiner noted that the Veteran's treatment plan included taking continuous medication of amlodipine. The examiner reported that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The examiner reported current blood pressure readings of 142/82, 138/82 and 142/80. The examiner found no other pertinent physical findings or complications caused by the Veteran's hypertension. The examiner noted that a blood pressure log was not provided by the Veteran. An October 2023 VATR notes a blood pressure reading of 125/83. An August 2024 VATR notes a blood pressure reading of 138/83. The record further notes a hypertension goal of less than 130/90 and report from the Veteran that his home readings are much lower and that he will start monitoring vitals at home. Given the above, the Board finds that while the evidence reflects that the Veteran's hypertension disability requires the continuous use of medication, the evidence does not show that the condition has been productive of diastolic pressure (or a history thereof) predominantly 100 or more, or systolic pressure predominantly 160 or more, to warrant a compensable disability rating under DC 7101 for any period on appeal. As articulated above, the Veteran's hypertension has not been manifested by a history of diastolic pressure predominantly 100 or more, diastolic pressure predominantly 100 or more, or systolic pressure is predominantly 160 or more. Thus, a 10 percent rating is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. In conclusion, the Board finds that as the evidence is not in approximate balance and is persuasively against the Veteran's claim, the benefit of the doubt rule is inapplicable and the claim must be denied. See 38 U.S.C. § 5107(b); Lynch, 21 F. 4th at 781. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board acknowledges the Veteran's assertion that he is entitled to a compensable rating for the issues adjudicated herein. While the Board is truly appreciative for the Veteran's service and is sympathetic to his contentions, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See Harvey v. Brown, 6 Vet. App. 416, 425(1994). The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33(1992). REASONS FOR REMAND Entitlement to a TDIU rating due to service-connected disabilities is remanded. In review of the record, the October 2022 VA sinusitis/rhinitis and other conditions of the nose, throat, larynx and pharynx examination reflects that while the Veteran reported that the condition impacts his occupational functioning as it interferes with work since he has to blow his nose while working as a bailiff in court, the examiner opined that the Veteran's rhinitis condition does not impact his ability to work. The January 2023 VA hypertension examiner noted that while the Veteran reported that his blood pressure is under control, he is a bailiff and he gets claustrophobia when he is in small places and he starts to sweat a lot, his heart races. However, the examiner opined that the Veteran's hypertension condition does not impact his ability to work. The October 2023 VA hypertension examiner noted that the Veteran reported that when his blood pressures are elevated, his eyes will get bloodshot and that he acknowledges that his weight likely plays a role in his hypertension. The Veteran noted that he struggles to lose weight and the MOVE program meets during his workday. However, the examiner opined that the Veteran's hypertension condition does not impact his ability to work. Here, the Board notes that the issue of entitlement to a TDIU rating has been reasonably inferred from the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). A request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability. Id. Under the Appeals Modernization Act (AMA) system, remand is required only to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802. As part of its duty to assist, VA is required to make reasonable efforts to assist a Veteran in obtaining evidence necessary to substantiate a claim. See 38 U.S.C. § 5103A, 38 C.F.R. § 3.159(c). The Board may remand for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802. The Board finds that such is the case with the current appeal. Specifically, the Board notes that while it appears that a claim is under development, the issue as to a TDIU has not been adjudicated for the period on appeal. Upon remand, such development should be undertaken for the period on appeal. The matter is REMANDED for the following action: Undertake appropriate development with respect to the claim for individual unemployability, to include providing the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and ask that he complete and return the form for the period on appeal. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alli, Q. 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.