Citation Nr: 18160494
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 11-31 273
DATE:	December 28, 2018
ORDER
A separate 10 percent disability rating for a disability of the thoracic muscle group manifested by episodes of shortness of breath secondary to the service-connected thoracolumbar spine disability is granted.
A 10 percent disability rating for allergic rhinitis is granted for the entire initial rating period on appeal.
FINDINGS OF FACT
1. The evidence is at least in equipoise as to whether the Veteran’s episodes of shortness of breath are related to the service-connected thoracolumbar spine disability.  
2. The evidence is at least in equipoise as to whether the Veteran’s allergic rhinitis manifests greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side.  
CONCLUSIONS OF LAW
1. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate 10 percent disability rating for a disability of the thoracic muscle group manifested by episodes of shortness of breath have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code (DC) 5321. 
2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 10 percent disability rating for allergic rhinitis have been met for the entire initial rating period.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6522.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran, who is the Appellant in this case, had active service from July 1963 to November 1963, March 1966 to January 1968, January 1988 to June 1988, September 1990 to July 1991, October 2001 to January 2002, May 2002 to September 2002, December 2002 to March 2004, and October 2005 to May 2009.  
This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  Jurisdiction over the Veteran’s claims file was subsequently transferred to the Roanoke RO.
The Veteran provided testimony at a December 2016 hearing before the undersigned Veterans Law Judge at VA’s central office in Washington, D.C.  A transcript of the hearing is associated with the claims folder.
In March 2017, the Board remanded the issues addressed herein as well as the issue of entitlement to service connection for a left middle toe disability for further development.  In an August 2017 rating decision, the Appeals Management Center granted service connection for the left middle toe disability.  The development for the remaining two issues having been completed, they are now appropriate for appellate review.
1. A separate 10 percent disability rating for shortness of breath secondary to the service-connected thoracolumbar spine disability is granted.  
The Veteran contends that he has a misaligned rib that creates mid-back pain and inability to take complete breaths on occasion.  For the reasons discussed below, the Board finds that the evidence is at least in equipoise as to whether the shortness of breath is related to the service-connected thoracolumbar spine disability, and, therefore, that a separate 10 percent disability rating is warranted for the shortness of breath under DC 5321, 38 C.F.R. § 4.73.  
The Veteran’s service treatment records document this condition beginning in 1991.  For instance, in October 1991, he reported that he experienced back pain with an inability to take a complete breath approximately two times per week.  He was diagnosed with musculoskeletal pain.  
In June 1998, the Veteran reported that he believed his chest tightness may be related to his thoracic spine condition, as he experienced muscle spasms.  The clinician noted that his lungs were clear to auscultation and percussion.
An August 2003 Post-Deployment examination report indicates that the Veteran reported shortness of breath.  The clinician indicated that the shortness of breath was related to periodic episodes of Desert Storm syndrome, and that these episodes were not continual or regular.  Moreover, he had been evaluated by pulmonology and psychology, and those examinations were normal.  The clinician noted that he was unable to pinpoint the reason for these episodes.  
In March 2004, it was noted that he had experienced the same symptoms for ten to twelve years.  
In April 2006, the clinician noted that examination of the thoracic spine revealed an elevated rib.  
The shortness of breath was also referenced on his retirement examination in November 2008.    
Post-service treatment records reveal that he has received treatment for the same symptoms of mid-back pain with inability to take complete breaths.  He was diagnosed with a rib dislocation in February 2011.  However, in May 2011, the clinician determined that the symptoms he reported were possibly referred pain from his thoracic spine.  
A November 2013 cardiothoracic consultation note states that a thoracic spine MRI was normal, a pulmonary function test was normal, and that the pain the Veteran experienced that caused the shortness of breath seemed to be related to his thoracic spine degeneration.
In April 2017, a neurologist noted a long history of pain in the upper back which caused shortness of breath, requiring intermittent chiropractic manipulation which resolved the symptoms.  The Veteran reported that these symptoms occurred intermittently, at least once per week, but that when they occurred, the sensation lasted for days.  The Veteran again described a feeling as if there was a band around his chest, and stated that he believed that one of his ribs or a thoracic vertebra was out of place.  The neurologist stated that the condition was unlikely to be neurologic in origin, as neurological examination was normal.  The doctor recommended work-up including a thoracic spine x-ray, which revealed persistent mild levoscoliosis of the midthoracic spine, normal heights of the vertebral bodies, and mild multilevel disc space narrowing and mild osteophytosis consistent with degenerative disease.
As noted above, in March 2017, the Board remanded the claim for a VA examination to determine the nature and etiology of the claimed shortness of breath.  At a May 2017 VA examination, the Veteran reported shortness of breath once per week.  He stated that during these episodes, he felt as though he was unable to take a deep breath because he felt like there was a band around his mid-back and chest.  He stated that this feeling resolved immediately after a chiropractor’s manipulation of his upper back.  The VA examiner noted that review of his medical records showed that he had not been diagnosed with any respiratory conditions, and that his lungs were clear to auscultation and resonant to percussion bilaterally on current examination.  In further review of his records, the examiner noted that a November 2008 chest x-ray was normal, a February 2017 CT scan revealed several pulmonary nodules with no clinical significance, and that a pulmonary function test conducted in April 2017 was normal.  The examiner concluded that there was no evidence of any pathology to explain the shortness of breath, including a respiratory condition or misaligned rib, but did not address whether or not it was related to the service-connected thoracolumbar spine disability.
In May 2017, the Veteran saw a pain management and rehabilitation specialist and reported intermittent episodes of shortness of breath which occurred once or twice a month, relieved by chiropractic manipulation approximately once per month.  After conducting an examination and reviewing various studies, the doctor stated that although the etiology of the shortness of breath was unclear, that the thoracic spine degenerative disease possibly contributed to his symptoms.  
The Veteran himself has also repeatedly described these episodes as pain that starts in his back that causes him to be unable to breathe deeply, and has stated that chiropractic manipulation of his back relieves the sensation immediately.
In sum, resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise as to whether the episodes of shortness of breath are related to the service-connected thoracolumbar spine disability.  As discussed above, multiple physicians have suggested that the shortness of breath is related to his back disability, and the Veteran has consistently described his symptoms as related to the back disability.  
Therefore, the Board finds that a separate 10 percent disability rating is warranted for a thoracic muscle group disability (the muscles of respiration) manifested by episodes of shortness of breath under DC 5321, 38 C.F.R. § 4.73.  In assigning a 10 percent rating, the Board notes that the episodes of shortness of breath have been described as occurring approximately once per week and lasting several days.  The Board finds, therefore, that the disability picture is most accurately described as moderate in severity.  Id.   
2. A 10 percent disability rating for allergic rhinitis is granted for the entire initial rating period on appeal.  
The Veteran is in receipt of a noncompensable, or 0 percent, rating for service-connected allergic rhinitis for the entire initial rating period, from June 1, 2009, under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6522.  He contends that, although at times his condition is asymptomatic, it is a seasonal condition that flares up and requires medication to drain his nasal passages to prevent and/or relieve obstruction.    
Under DC 6522, allergic rhinitis with no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation.  38 C.F.R. § 4.97.  A 30 percent evaluation is assigned when polyps are present.  Id.  In every instance where the schedule does not provide a zero percent rating for a DC, a zero percent rating shall be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.
After a review of all the evidence, lay and medical, in this Veteran’s case, the Board finds that the evidence is at least in equipoise as to whether the criteria for a 10 percent disability rating for allergic rhinitis have been met for the entire initial rating period on appeal.  Namely, for the entire initial rating period, the Veteran’s service-connected allergic rhinitis did not manifest polyps, but, resolving reasonable doubt in the Veteran’s favor, the Board finds that it manifested greater than 50 percent obstruction of the bilateral nasal passages or complete obstruction on one side, as required for a 10 percent evaluation under Diagnostic Code 6522.  38 C.F.R. § 4.97.
Turning to the most relevant evidence, at a February 2009 VA general medical examination, the Veteran recalled a diagnosis of rhinitis and reported a post nasal drip for which he used two nasal sprays.  He had no current sinus complaints.
A July 2010 VA treatment note indicates that he was advised to continue taking Nasonex, a nasal spray used to treat allergic rhinitis.
In December 2011, he was afforded a VA examination at which he reported rhinorrhea and watery eyes which progressed to dry itchy eyes, nasal congestion, and “clogged up sinuses,” which sometimes led to sinus headache.  He reported he used Flonase, which had temporary benefit.  He stated that the symptoms were more pronounced in the spring.  Winter was better unless he was exposed to flowers or perfume among other things.  The VA examiner stated that continuous medication was not required and that there were no current findings of chronic sinusitis.  Further, the examiner indicated that there was not greater than 50 percent obstruction of nasal passages on both sides, no complete obstruction on one side, no permanent hypertrophy of the nasal turbinates, and no nasal polyps.  The VA examiner stated that the allergic rhinitis did not affect the Veteran’s ability to work.
A November 2013 nasal endoscopy revealed that the septum was midline, and turbinates were normal.  The nasopharynx was clear, Eustachian tube orifices were clear, and there were no nasal polyps.
A May 2014 VA treatment note indicates the Veteran was taking Fluticasone twice daily for his allergic rhinitis.
At a January 2016 VA examination, the Veteran reported that since 1991, he had been prescribed Flonase, Nasonex, and Allegra, with some relief, and that his condition was seasonally asymptomatic.  He also reported acute sinusitis, for which he was prescribed Azelastine and Fluticasone with some relief.  The condition had remained the same since its inception.  The VA examiner noted that continuous medication was not required.  The VA examiner further indicated that he had episodes of sinusitis, none of which were considered incapacitating or non-incapacitating under VA regulations.  The VA examiner also stated that there was not greater than 50 percent obstruction of the nasal passages on both sides, no complete obstruction on one side, no permanent hypertrophy, and no nasal polyps.  A sinus x-ray was normal.  The VA examiner concluded that the Veteran’s condition was currently asymptomatic.
A July 2017 ENT consultation note indicates that examination of the nose was normal.
At the December 2016 Board hearing, the Veteran testified that his allergic rhinitis was not evident on the date of the VA examination, which was conducted in midwinter.  He stated that the condition gets a lot worse any time there is pollen in the air or flowers.  He stated that his condition can be extremely serious at times, but it was not constant.  The Veteran also testified that his private doctor had stated that his nasal passages were clogged and gave him medication to cause them to drain.  The records of the private doctor were requested in accordance with the Board’s March 2017 remand, but no response was received.  
At a May 2017 VA examination, the Veteran reported severe post nasal drip and nasal discharge every morning, sneezing, and a dry cough.  Symptoms were triggered and aggravated with exposure to smells, odors, and fumes.  He had been treated with Allegra and Fluticasone nasal spray.  The VA examiner indicated there was not greater than 50 percent obstruction of the nasal passages on both sides, complete obstruction on either side, permanent hypertrophy of nasal turbinates, nasal polyps, or any granulomatous conditions.  Both nostrils were patent.  Nasal mucosa was moist and pink, covered with clear nasal discharge.  There were no polyps, ulcers, or crusts.  Posterior oropharynx was normal.  The VA examiner concluded that the condition did not affect ability to work, and the degree of disability severity was mild.
A June 2018 MRI of the brain revealed that the paranasal sinuses and mastoid air cells were predominantly clear.
Based upon review of the evidence of record, the Board finds that the competent medical and lay evidence of record demonstrates that the severity of the Veteran’s allergic rhinitis disability more closely approximates the criteria for a 10 percent evaluation, and no higher, under DC 6522.  38 C.F.R. § 4.97. 
Here, the record shows that the Veteran has been consistently prescribed nasal sprays to treat his allergic rhinitis, which is consistent with his contention that during certain seasons, his allergic rhinitis flares up such that he needs to take medication to prevent nasal passage obstruction.  Although the VA examiners apparently did not examine the Veteran during a flare up of his condition, the medical evidence of record, along with the Veteran’s credible statements regarding the severity of his condition, more closely approximate greater than 50 percent nasal obstruction on each side. 
At no point during the period under appeal does the competent evidence of record reflect that the Veteran’s allergic rhinitis disability was manifested by polyps to support an evaluation in excess of 10 percent under DC 6522.  
Moreover, the Board acknowledges that at the December 2016 Board hearing, the Veteran requested that his allergic rhinitis be evaluated under DC 8865, which he stated addressed Persian Gulf War illnesses.  The Board notes that this diagnostic code is no longer in effect, but used to address Persian Gulf illnesses.  The Board notes that he has been given a definitive diagnosis (allergic rhinitis), and that his symptoms have not been attributed to an undiagnosed illness.  In any event, there are no alternative diagnostic codes that would allow for a disability rating in excess of 10 percent.  


[CONTINUED ON NEXT PAGE]
For these reasons, resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent disability rating is warranted for allergic rhinitis for the entire initial rating period on appeal.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Sherrard, Counsel 

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