Citation Nr: 1648512	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  09-17 805	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable rating for allergic rhinitis prior to January 7, 2013, and in excess of 10 percent thereafter.


REPRESENTATION

Veteran represented by:	Oklahoma Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veterans and spouse


ATTORNEY FOR THE BOARD

D. M. Donahue Boushehri, Counsel 


INTRODUCTION

The Veteran served on active duty from September 1979 to January 2001 in the United States Army.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which granted service connection for allergic rhinitis (also claimed as sinusitis) and assigned a noncompensable disability rating.  In an April 2015 decision, the Appeals Management Center (AMC) granted an increased 10 percent disability rating from February 23, 2015.  In an August 2016 decision, the AMC granted an earlier effective date of the increased 10 percent disability rating, now effective January 7, 2013.  

This case was previously before the Board in December 2014 and December 2015.

The Veteran and his wife testified at a hearing before a Decision Review Officer (DRO) at the RO in August 2009.  The Veteran also testified during a videoconference hearing before the undersigned Veterans Law Judge (AVLJ) in August 2012.


FINDING OF FACT

For the entire claims period, the Veteran's rhinitis is productive of 50 percent obstruction of nasal passage on both sides, but not productive of nasal polyps, , or complete obstruction on one side.



CONCLUSIONS OF LAW

1.  For the period prior to January 7, 2013, the criteria for a 10 percent disability rating for allergic rhinitis are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Codes 6510, 6522 (2016).

2.  For the period starting January 7, 2013, the criteria for a disability rating in excess of 10 percent for allergic rhinitis are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Codes 6511, 6522 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duty to Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).

The RO provided notice in November 2012 that met the requirements including all criteria and necessary evidence to substantiate a claim for rhinitis and the methods for assigning a rating and effective date for a more severe service-connected disability.

VA obtained the Veteran's service treatment records, post-service VA and private treatment records, and the results of May 2008, January 2013, and February 2015 VA examinations and September 2008 fee-based examination.  Neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist.

After review of the previous development in this appeal, the Board also finds that there has been substantial compliance with the previous Board remands.  See Stegall v. West, 11 Vet. App. 268 (1998).

Additionally, in August 2009 and August 2016, the Veteran provided testimony during DRO and Board videoconference hearings, respectively.  The hearings were adequate as the DRO and VLJ who conducted the hearings explained the issues and identified possible sources of evidence that may have been overlooked.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Moreover, neither the Veteran nor his representative has alleged any deficiency in the conducting of his hearings related to the hearing officers' duties under section 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.  Accordingly, the Board finds that the claim may be adjudicated based on the current record.  

As VA has satisfied its duties to notify and assist the Veteran, the Board will proceed to review and decide the claim based on the evidence that is of record.

II.  Increased Rating
      
      A.  Rules and Regulations

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C.A. § 1155.  Generally, the degrees of disability specified are 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 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.  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.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Staged ratings are appropriate for an initial rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Veteran is currently rated for his allergic rhinitis under 38 C.F.R. § 4.97, Diagnostic Code 6522.  A 30 percent rating is warranted for allergic rhinitis with polyps.  A 10 percent rating is warranted for allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side.

As discussed in greater detail below, there are also diagnoses of sinusitis and this is the disability for which the Veteran sought service connection.  See 38 C.F.R. § 4.97, Diagnostic Codes 6510-14.  The General Rating Formula for Sinusitis provides: 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 is rated as 50 percent disabling; three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting is rated as 30 percent disabling; one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting is rated as 10 percent disabling; and detected by x-ray only is rated as noncompensable.  38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514.  Note to this formula states that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.  Id.

      
B.  Factual Background 

The RO granted service connection for rhinitis was granted by RO decision in September 2008.  This appeal stems from a March 2008 claim.

Service treatment records (STRs) included treatment and diagnosis of sinusitis from October 1991 to May 1992.  STRs dated in September 1994, September 1998, and September 1999 included a diagnosis of allergic rhinitis.  In an April 1995 STR, the Veteran reported frequent sinus and allergy problems for the last 10 years.  An October 2000 STR included a diagnosis of sinusitis.  A November 2000 STR included complaints of nasal congestion and a diagnosis of allergic rhinitis. 

During an August 2000 fee-based examination, the Veteran reported he developed allergies after an incident with fire ants in service.  Physical examination showed mild hyperemia of the nasal turbinates without pharyngeal or nasopharyngeal lesions identified.  There was a deviated septum observed.  The examiner noted that for allergic rhinitis and sinusitis there was no pathology to render a diagnosis.  

An October 2000 private treatment record the Veteran complained of facial pain, runny nose, and congestion.  The diagnosis was prolonged bout of seasonal allergies. 

September 2001 and April 2004 private treatment records included a diagnosis of chronic sinusitis.  

In a September 2004 private treatment record, the Veteran complained of flare-up of allergies.  The Veteran reported a history of sinus infections over the past several years.  Physical examination the nose showed moderate to severe inflammation with mucopurulent drainage.  Examination of the head showed mild tenderness to palpation over the right ethmoid sinus.  The diagnoses were ethmoid sinusitis and allergic rhinitis.  

In a December 2005 private treatment record, the Veteran was evaluated for an acute exacerbation of seasonal allergies with headache, sinus pain, nasal discharge, and nasal passage blockage.  Upon physical examination, nasal mucosa was abnormal and sinuses were tender.  The nasal septum was not deviated and no intranasal polyp was found.  The diagnosis was allergic rhinitis. 

In May 2006, the Veteran was seen by his private treatment provider for allergies and sinus pain.  He complained of sinus pain and nasal discharge without headache and nasal passage blockage.  Physical examination showed deviated nasal septum, mucosa hypertrophy, and nasal mucosa pale, swollen, and edematous, without intranasal polyp and sinus tenderness.  The diagnoses were allergic rhinitis and sinusitis.  A May 2006 follow-up not indicated the Veteran was allergic rhinitis and possible chronic sinusitis with headache, rule out chronic sinusitis.  

A May 2006 private CT of the sinuses showed sinusitis with lower ethmoids most involved.  The nasal turbinates were swollen and the nasal septum was slightly deviated towards the left.  

During a May 2008 VA examination, the Veteran reported he has constant sinus problems.  He complained of interference with breathing through the nose, purulent discharge from the nose, hoarseness of the voice, and pain.  He denied crusting.  Examination of the nose revealed no nasal obstruction, deviated septum, or nasal polyps.  There was no rhinitis noted in examination of the nose and no sinusitis was detected.  An x-ray report from that time showed mild nasal septal deviation.  

During a September 2008 fee-based examination, physical examination again showed no nasal obstruction, deviated septum, or nasal polyps.  The examiner noted there was rhinitis present likely allergic in origin due to additional symptoms of running nose, congestion with headache, itchy eyes, and itchy nose.  The examiner also noted the effect of the condition on the claimant's daily activity (with allergy flare-up) includes headache, feeling miserable and tired, and lost voice.

During an August 2009 DRO hearing, the Veteran testified that his problems with allergies started while in service.  He stated he has allergy attacks in which his face is heated, swelling, and breathing difficulty because his nose closes up.  He also reported he may have a sore throat and difficulty speaking if the case is particularly bad.  His wife indicated that he frequently has a clogged nose and he has trouble sleeping.  The Veteran reported that he had to have someone take over his job one on instance because he lost his voice after an allergy attack. 

In a September 2010 private treatment record, the Veteran complained of headache, sinus pressure, runny nose, and congestion.  The diagnosis was acute sinusitis.  The examiner directed he return for reassessment if he was not better in 5-10 days. 

October 2010 and January 2011 VA treatment records indicate that allergic rhinitis was fairly well-controlled. 

During a January 2013 VA examination, the examiner noted diagnoses of chronic sinusitis, allergic rhinitis, and deviated nasal septum.  Continuous medication was required for control.  The Veteran's chronic sinusitis affects his ethmoid sinus.  The Veteran reported episodes of sinusitis and headaches.  There was no evidence of non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months.  The examiner noted there is evidence of one incapacitating episode of sinusitis requiring prolonged antibiotic treatment in the past 12 months.  There was no evidence the Veteran underwent sinus surgery.  The examiner found there is greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis.  There was no evidence of permanent hypertrophy of the nasal turbinates, nasal polyps, or granulomatous conditions.  There was also no evidence of a deviated septum due to trauma.  The examiner referred to a January 2013 x-ray  which showed normal nasal bones.  The examiner also noted the Veteran cannot work due to severe sinus infection on occasion.  

A November 2013 private CT scan found chronic ethmoid sinusitis, mild deviation nasal septum right to left.

During an October 2014 Board hearing, the Veteran testified that his allergic rhinitis started in service and continues. 

During a February 2015 VA examination, the examiner noted diagnoses of chronic sinusitides, allergic rhinitis, and deviated nasal septum.  The Veteran reported a long term history of allergic rhinitis that became worse on active duty especially during fall and spring and worse at certain duty stations.  He reported he has had allergy testing and he takes Claritin and Flonase nasal spray over the counter as needed.  He also has had frequent sinus infections and was diagnosed by the ear, nose, and throat (ENT) clinic with chronic sinusitis.  This was again confirmed by sinus CT in 2013.  The examiner indicated the Veteran's chronic sinusitis affects his ethmoid sinus.  The Veteran was noted to have episodes of sinusitis and chronic sinusitis detected only by imaging studies.  The examiner reported that chronic sinusitis was confirmed by diagnostic testing in 1992, 2006, and 2013.  The examiner reported no non-incapacitating or incapaciting episodes of sinusitis in the past 12 months.  The examiner indicated there was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis.  There was no evidence of permanent hypertrophy of the nasal turbinates, nasal polyps, or granulomatous conditions.  There was no evidence of deviated septum.  A November 2013 CT showed chronic ethmoid sinusitis, mild deviation of nasal septum to the left, and otherwise negative nasal sinuses.  The examiner noted the Veteran's nose and sinus condition does not impact his ability to work.  

Private treatment records dated in December 2005, June 2006, December 2007, October 2013, and March 2015 included findings of nasal discharge and blockage. 

      C.  Analysis
      
For the entire appellate period, the Board finds a 10 percent disability rating is warranted for allergic rhinitis.  Although there is no objective evidence of 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, private treatment records dated in December 2005, June 2006, and December 2007 indicate nasal obstruction with nasal discharge.  The Veteran has asserted that during allergy attacks, his nose is completely blocked.  Giving the Veteran the benefit of the doubt, the Board finds the Veteran's service-connected rhinitis meets the criteria of a 10 percent disability rating prior to January 7, 2013 under Diagnostic Code 6522.  The Board is cognizant that service connection is also in effect for a deviated septum, and thus disability was previously rated under Diagnostic Code 6502.  This code provides a maximum 10 percent rating for the same manifestation rated under Diagnostic Code 6522; the obstruction of the nasal passage.  

At no point during the appeals period has the Veteran had nasal polyps.  The Board also considered the diagnoses of sinusitis in the record.  The Board has also notes that it is under this diagnosis that the Veteran originally sought service connection.  Service connection has not explicitly been awarded for this disability.  Here, there is one finding of an incapacitating episode of sinusitis during the appeal period and the most recent VA examination revealed evidence of no incapacitating or non-capacitating episodes of sinusitis.   The one note of incapacitating episode, in the Board's judgment, is insufficient evidence on which to further consider whether the service-connected disability is better rated under this code or whether separate compensable ratings are warranted, or whether a staged higher rated is warranted.  The Board has reviewed the lay and medical evidence liberally to seek evidence to support higher ratings and after this review finds that the evidence supports the grant of the 10 percent rating throughout the appeal period, but no higher.  

In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.'  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's allergic rhinitis are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disability.  The Veteran is currently separately rated for his sinus headaches.  Moreover, there have not been frequent hospitalizations.  The Board recognizes the January 2013 VA examiner indicated the Veteran cannot work due to severe sinus infection on occasion.  However, the Board finds there is no indication that this has caused marked interference with employment, considering the examiner also noted only a single incapacitating episode and no other VA examiner indicated incapacitating or non-incapacitating episodes in the previous year.  Therefore, referral for consideration of an extraschedular rating is not warranted.  The Board finds that the record does not reflect that the disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher disability rating on an extraschedular basis.


ORDER

Entitlement to an initial 10 percent disability rating for allergic rhinitis prior to January 7, 2013 is granted. 

Entitlement to a disability rating in excess of 10 percent starting January 7, 2013 is denied. 



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s