Citation Nr: 1537005 Decision Date: 08/31/15 Archive Date: 09/04/15 DOCKET NO. 08-28 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for sinusitis, to include as secondary to service-connected allergic rhinitis. 2. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities. 3. Entitlement to a compensable initial disability rating for allergic rhinitis. 4. Entitlement to a compensable initial disability rating for allergic conjunctivitis. 5. Entitlement to an initial disability rating in excess of 10 percent for nodulocystic and inflammatory papular acne with residual scarring of the torso. 6. Entitlement to a disability rating in excess of 30 percent for nodulocystic and inflammatory papular acne with residual scarring. 7. Whether there was clear and unmistakable error (CUE) in not assigning a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso and in not assigning a higher evaluation for more characteristics of disfigurement in a May 2003 rating decision. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to May 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2006, May 2009, and May 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The issues of: entitlement to an initial disability rating in excess of 10 percent for nodulocystic and inflammatory papular acne with residual scarring of the torso; entitlement to a disability rating in excess of 30 percent for nodulocystic and inflammatory papular acne with residual scarring; and whether there was CUE in not assigning a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso and in not assigning a higher evaluation for more characteristics of disfigurement in a May 2003 rating decision, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The probative, competent evidence is at least in relative equipoise with respect to whether sinusitis is proximately due to service-connected allergic rhinitis. 2. The probative, competent evidence is at least in relative equipoise with respect to whether headaches are proximately due to service-connected allergic rhinitis, sinusitis, and obstructive sleep apnea. 3. Prior to April 3, 2013, the Veteran's allergic rhinitis did not result in greater than 50 percent obstruction of nasal passages on both sides, complete obstruction on one side, or nasal polyps. 4. From April 3, 2013, the Veteran's allergic rhinitis was manifested by at least 50 percent obstruction of the left nasal passage and 75 percent obstruction in the right nasal passage. 4. Throughout the period on appeal, the Veteran's allergic conjunctivitis was active and manifested by objective findings. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2015). 2. The criteria for service connection for headaches have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 3. The criteria for a 10 percent disability rating for allergic rhinitis have been met from April 3, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.97, Diagnostic Code 6522 (2015). 4. The criteria for a 10 percent disability rating for allergic conjunctivitis have been met throughout the period on appeal. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.79, Diagnostic Code 6018 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). An August 2006 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist, the Veteran's service treatment records, VA treatment records, private treatment records, VA examination reports, and lay evidence are associated with the record. The Veteran has also undergone multiple VA examinations in connection with his claims. The VA examiners reviewed the medical evidence and lay statements and performed physical examinations. Further, taken together, the examination reports provide sufficient information to rate the service-connected disabilities on appeal. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds the examinations to be sufficient and adequate for rating purposes. There is no indication in the record that any additional evidence relevant to the issues is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 483 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection The Veteran asserts that he has sinusitis proximately due to his service-connected allergic rhinitis, and headaches proximately due to the sinusitis as well as service-connected allergic rhinitis and obstructive sleep apnea. Given the favorable nature of the Board's decision on this basis, the Board will not address the theory of direct service connection with regard to these issues. Service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). With respect to whether current disabilities exist, an October 2011 VA examiner diagnosed sinusitis. VA treatment records note diagnoses of acute purulent sinusitis and sinus congestion. Additionally, complaints of frequent headaches are noted in treatment records and VA examinations throughout the period on appeal. As such, the Board finds that there is evidence of current disabilities for the purposes of secondary service connection. With respect to whether the Veteran's sinusitis is caused or aggravated by his service-connected allergic rhinitis, there are conflicting medical opinions. The October 2011 VA examiner opined that the Veteran's sinusitis was at least as likely as not proximately due to his service-connected allergic rhinitis. He reasoned that the Veteran developed sinusitis after his diagnosis of allergic rhinitis, and that it occurred due to the accumulation of fluid within the sinuses and subsequent blockage. Conversely, an April 2012 VA examiner provided no current diagnosis of sinusitis. July 2014 and March 2015 examiners also indicated that there was no objective evidence of sinusitis, but both noted that a CT scan would be necessary to confirm. Based on the foregoing, the Board finds the evidence is at least in relative equipoise regarding whether the Veteran's sinusitis is proximately due to or aggravated by his service-connected allergic rhinitis. Therefore, service connection for sinusitis is granted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). With respect to whether the Veteran's headaches are caused or aggravated by service-connected disabilities, there are also conflicting medical opinions. The October 2011 VA examiner noted constant headaches in the frontal and maxillary sinuses bilaterally associated with sinus blockages and sinusitis problems. The October 2011 VA examiner opined that the Veteran's headaches were at least as likely as not the result of chronic sinusitis, which is now service connected. Additionally, the Veteran submitted an April 2013 private opinion from Dr. C. Bash. Dr. Bash opined that the Veteran's headaches were to at least a 90 percent level of probability due to or at least aggravated by his service-connected allergy symptoms, including rhinitis. Dr. Bash indicated that headaches are a known byproduct of these types of allergy symptoms, and that the areas of the Veteran's headaches (including the base of the skull) are indicators of residual allergy problems. In a July 2013 addendum, Dr. Bash also opined that the Veteran's service-connected obstructive sleep apnea would also contribute to severe and chronic headaches. Conversely, a July 2014 VA examiner opined that the Veteran's headaches were less likely than not proximately due to his service-connected rhinitis. The examiner stated that there was no pathologic diagnosed headache condition and that headaches are common and could occur for any reason. Based on the foregoing, the Board finds the evidence is at least in relative equipoise regarding whether the Veteran's headaches are proximately due to or aggravated by his service-connected disabilities, include sinusitis, allergic rhinitis, and obstructive sleep apnea. Therefore, service connection for headaches is granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-56. Increased Ratings - General The Veteran asserts that his service-connected allergic rhinitis and allergic conjunctivitis are more severe than the current noncompensable ratings assigned reflect. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2014). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Allergic Rhinitis The Veteran's service-connected allergic rhinitis is currently evaluated as noncompensable under 38 C.F.R. § 4.97, Diagnostic Code 6522. 38 C.F.R. § 4.31 (2015). Under Diagnostic Code 6522, a 10 percent disability rating is warranted when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side, and a 30 disability percent rating is warranted when polyps are present. Here, the clinical evidence does not reflect that the Veteran's allergic rhinitis resulted in greater than 50 percent obstruction of nasal passages on both sides, complete obstruction on one side, or nasal polyps at any time prior to April 3, 2013. Treatment records prior to that date reflect sneezing, congestion, and a scratchy throat. Records also indicate that the Veteran took over-the-counter medications to manage his symptoms. The October 2011 VA examiner noted that the Veteran had less than 50 percent obstruction of the nasal passage on both side and no polyps. An April 2012 VA examiner also noted that there was no obstruction of the nasal passage. However, Dr. Bash reported that, upon examination on April 3, 2013, the Veteran had at least 50 percent blockage of the left nasal passage and 75 percent blockage in the right nasal passage. Dr. Bash also indicated that blockage to this degree or more was chronic, but would wax and wane to a varying degree depending on the environment. A July 2014 VA examiner noted widely open nasal passages, and a March 2015 addendum provided by a different examiner noted it was unlikely that polyps were present. However, the March 2015 examiner also noted that the findings of each examination were limited to the presentation of the Veteran's symptoms on that date, and that rhinitis varies according to allergens. Based on the foregoing, the Board finds the criteria for a 10 percent disability rating for allergic rhinitis have been met from April 3, 2013, the date when nasal passage obstruction was first shown. 38 C.F.R. § 4.97, Diagnostic Code 6522. The Board has considered whether the clinical evidence supports a higher disability rating, but nasal polyps were not found at any time during the pendency of the appeal. The Board has also considered whether a higher disability rating is warranted under a different diagnostic code. However, there was no indication that the Veteran had any other relevant sinus, nose, throat, larynx, or pharynx conditions related to his service-connected allergic rhinitis that is not already service connected. As such, the Board finds the evidence does not demonstrate an additional disability for which a compensable rating is warranted at any time during the pendency of the appeal. 38 C.F.R. § 4.97, Diagnostic Codes 6502-6524 (2015). The Board acknowledges that the Veteran is competent to describe his symptoms and their effects on his daily life and occupation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (2006). Here, the Board has based the decision on the Veteran's lay statements along with the objective medical evidence, as it demonstrates consideration of his statements and the information necessary to rate the disability under the rating criteria. Therefore, resolving the benefit of the doubt in favor of the Veteran, the Board finds the Veteran's allergic rhinitis resulted in at least a 50 percent obstruction of both nasal passages and a 10 percent disability rating is warranted from April 3, 2013. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 53-56. However, a compensable disability rating is not warranted at any time prior to April 3, 2013, as the evidence does not demonstrate obstruction prior to that date. Additionally, a rating in excess of 10 percent is not warranted at any point during this period, as the evidence does not show that nasal polyps were present at any time. Allergic Conjunctivitis Under 38 C.F.R. § 4.79 , Diagnostic Code 6018, a maximum 10 percent evaluation is warranted for active chronic nontrachomatous conjunctivitis with objective symptoms. "Objective symptoms" of conjunctivitis contemplated by this Diagnostic Code include symptoms such as redness, thick conjunctivae, mucous secretion, etc. When conjunctivitis is inactive, the condition should be rated based on residuals such as such as visual impairment and disfigurement. 38 C.F.R. § 4.79, Diagnostic Code 6018. Lay statements throughout the pendency of the appeal from the Veteran and his wife report itchy, water eyes. A VA treatment record from July 2009 noted conjunctival irritation and tearing. Upon VA examination in October 2011, the examiner also noted itchy, watery eyes. An April 2012 VA examiner reported symptoms of conjunctivitis, including itching, watering, and sandiness of the eyes. The examiner also reported that the Veteran indicated that he used Patanol and Visine eye drops. In April 2013 Dr. Bash reported that the Veteran had active conjunctivitis of a chronic nature which was ongoing, though there were periods of latency. The July 2014 VA examiner again reported itchy eyes. An April 2015 VA examiner diagnosed chronic conjunctivitis. There were no findings of visual impairment or disfigurement related to conjunctivitis. Based on the foregoing, the Board finds the evidence demonstrates active conjunctivitis with objective findings throughout the pendency of the appeal. As such, a 10 percent initial disability rating is warranted under Diagnostic Code 6018. This is the maximum rating available under that diagnostic code. The evidence does not show visual impairment or disfigurement that would warrant a higher rating under any other diagnostic code for evaluating the eye disability. Thus, the preponderance of the evidence is against a higher, or separate, initial rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Extraschedular Consideration An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disabilities. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the disability ratings assigned herein inadequate. The Veteran's allergic rhinitis is evaluated as a disease of the respiratory system and his allergic conjunctivitis is evaluated as a disease of the eye, the criteria of which are found by the Board to specifically contemplate the level of occupational and social impairment caused by these disabilities. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.79, Diagnostic Code 6018 and § 3.97, Diagnostic Code 6522. Ratings in excess of those assigned are provided for certain manifestations of allergic rhinitis and conjunctivitis, but as described above, those symptoms are not present at any time during the period on appeal. Here, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's allergic rhinitis and conjunctivitis disabilities during the appeal periods. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule, and no extraschedular referral is required. Finally, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Total disability rating based on individual unemployability (TDIU) The United States Court of Appeals for Veterans Claims has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). Here, the Veteran has not asserted that he is totally unable to work as a result of his service-connected disabilities. As such, the Board concludes that the Veteran has not raised a claim for a TDIU. ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for headaches is granted. Entitlement to a 10 percent disability rating for allergic rhinitis is granted from April 3, 2013. Entitlement to an initial 10 percent disability rating for allergic conjunctivitis is granted. REMAND In a May 2012 rating decision, the RO granted a 10 percent disability rating for nodulocystic and inflammatory papular acne with residual scarring of the torso. In April 2013, the Veteran submitted a Notice of Disagreement with this decision. The filing of a Notice of Disagreement initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Remand is therefore required so that the Veteran may be issued a Statement of the Case with respect to the issue of entitlement to a disability rating in excess of 10 percent for nodulocystic and inflammatory papular acne with residual scarring of the torso. See Manlincon v. West, 12 Vet. App. 238 (1999). With respect to the issues of entitlement to a disability rating in excess of 30 percent for nodulocystic and inflammatory papular acne with residual scarring, and whether there was CUE in not assigning a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso and in not assigning a higher evaluation for more characteristics of disfigurement in a May 2003 rating decision, the Veteran has requested to testify before a Veterans Law Judge at a videoconference hearing. See 38 C.F.R. § 20.700 (2015). Considerations of due process mandate that the Board may not proceed with review of these claims without providing the Veteran an opportunity for the requested hearing. Therefore, remand is required in this case to schedule the Veteran for a videoconference hearing so that he may provide evidence in support of these claims. See 38 U.S.C.A. § 7107(b) (West 2014); 38 C.F.R. § 20.700(a). Accordingly, the case is REMANDED for the following actions: 1. Issue a Statement of the Case and notify the Veteran of his appellate rights with respect to the issue of entitlement to a disability rating in excess of 10 percent for nodulocystic and inflammatory papular acne with residual scarring of the torso. In the notice and Statement of the Case, remind the Veteran that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2015). If the Veteran perfects an appeal as to the issue, return the claims to the Board for appellate review. 2. Schedule the Veteran for a videoconference hearing, with respect to the issues of entitlement to a disability rating in excess of 30 percent for nodulocystic and inflammatory papular acne with residual scarring, and whether there was CUE in not assigning a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso and in not assigning a higher evaluation for more characteristics of disfigurement in a May 2003 rating decision, in accordance with the procedures set forth at 38 C.F.R. §§ 20.700(a), 20.704(a) (2015). The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs