DERMATOPHYTOSIS (RINGWORM)

Summary

The Veteran, an Army Veteran who served from January 2009 to July 2014, appeals the denial of a compensable initial rating for allergic rhinitis. The Veteran sought an increased rating for this condition, which was previously rated as noncompensable under Diagnostic Code 6522. The Board reviewed the evidence of record at the time of the agency of original jurisdiction's decision. The Veteran's primary evidence consisted of two VA examinations. The first, in April 2022, was deemed inadequate by the Board as it did not fully evaluate the rhinitis symptoms. The second, in August 2022, was considered adequate, competent, and probative. This examination found the Veteran's allergic rhinitis was not manifested by the symptoms required for a compensable rating under DC 6522, such as significant nasal obstruction or polyps. The Veteran's reported symptoms of intermittent nasal discharge and congestion were not deemed sufficient for a compensable rating. The Board also noted the absence of relevant private treatment records and no complaints in VA treatment records during the appeal period. The Board concluded that the evidence persuasively weighed against the claim, and therefore, the benefit of the doubt doctrine did not apply. The appeal for a compensable initial rating for allergic rhinitis was denied.

Rationale

Allergic rhinitis symptoms of nasal discharge and congestion do not meet criteria for compensable rating under DC 6522.; Veteran does not exhibit greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side.; Veteran does not have nasal polyps or granulomatous conditions.

Full Decision Text

Citation Nr: A25019123
Decision Date: 03/03/25	Archive Date: 03/03/25

DOCKET NO. 240221-417964
DATE: March 3, 2025

ORDER

Entitlement to a compensable initial rating for allergic rhinitis is denied.

FINDING OF FACT

The Veteran's allergic rhinitis is manifested by nasal discharge and congestion, but not by greater than 50 percent blockage of the nasal passages on both sides, or by complete obstruction on one side, or by polyps.

CONCLUSION OF LAW

The criteria for a compensable disability rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Army from January 2009 to July 2014.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2023 higher-level review rating decision by the Department of Veterans Affairs (VA) regional office, which was the agency of original jurisdiction (AOJ). In the February 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 January 2023 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1, 4.2, 4.10.

Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative to the degree of disability existing at the time the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating the severity of a particular disability, it is essential to consider its overall history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Regarding the increased initial rating claim on appeal, the Board has considered the relevant temporal period, as well as the appropriateness of any assigned staged ratings periods and whether any additional staged ratings periods are warranted.

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
 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Regarding the increased initial rating claim on appeal, the Board has considered the relevant temporal period, as well as the appropriateness of any assigned staged ratings periods and whether any additional staged ratings periods are warranted.

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.

The Board is responsible for determining whether the evidence persuasively supports the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Entitlement to a compensable initial rating for allergic rhinitis

The Veteran seeks an increased initial rating for his allergic rhinitis, which is currently rated as noncompensable under Diagnostic Code (DC) 6522. See February 2024 VA Form 10182. Because the Veteran has appealed the initial rating, the appeal period begins on August 15, 2021 (the effective date of service connection).

Under DC 6522, a 10 percent rating applies where the evidence demonstrates allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R.§ 4.97, DC 6522. A maximum 30 percent rating applies where the evidence demonstrates polyps. Id.

In April 2022, the Veteran was first afforded a VA examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx. At the examination, the Veteran stated that he constantly gets sinus infections, and feels congested almost all the time. The examiner noted a diagnosis of chronic rhinitis. However, the examiner did not otherwise evaluate the nature or severity of the Veteran's rhinitis symptoms. Accordingly, the Board finds that the April 2022 VA examination is inadequate for rating purposes.

The Veteran was afforded another VA examination in August 2022. The examiner indicated that the Veteran has a diagnosis of allergic rhinitis. The Veteran described symptoms of intermittent nasal discharge and congestion. He reported that his symptoms have been helped by over-the-counter treatment with Benadryl, and that he has not sought out a medical provider for treatment of his allergic rhinitis.

The VA examiner indicated that the Veteran's allergic rhinitis is not manifested by greater than 50 percent obstruction of the nasal passage on both sides, or by complete obstruction on either side. He did not have permanent hypertrophy of the nasal turbinates. He did not have nasal polyps or any granulomatous conditions. The examiner stated that the Veteran's allergic rhinitis does not impact his ability to work.

The Board finds as a fact in this case that the August 2022 VA examination and opinion are adequate, competent, credible, and probative as to the nature and severity of the Veteran's allergic rhinitis symptomatology. The examination and opinion were provided by a nurse practitioner who possesses the necessary education, training, and expertise to render the requested opinion. Additionally, the examination is based on an assessment of the Veteran, his medical history, and his lay statements regarding his symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion's factually accurate, fully articulated, sound reasoning for the conclusion contributes to its probative value).

The Veteran's VA treatment records during the appeal period do not contain any complaints related to rhinitis. He did not submit any relevant private treatment records.

The Board finds as a fact in this case that the Veteran's allergic rhinitis does not exhibit any of the symptoms necessary for a compensable rating under DC 6522. Specifically, the Veteran does not exhibit greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. He does not have nasal polyps. Instead, his reported symptoms include nasal discharge and congestion. These are not the types of symptoms for which a compensable rating may be
 medical opinion's factually accurate, fully articulated, sound reasoning for the conclusion contributes to its probative value).

The Veteran's VA treatment records during the appeal period do not contain any complaints related to rhinitis. He did not submit any relevant private treatment records.

The Board finds as a fact in this case that the Veteran's allergic rhinitis does not exhibit any of the symptoms necessary for a compensable rating under DC 6522. Specifically, the Veteran does not exhibit greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. He does not have nasal polyps. Instead, his reported symptoms include nasal discharge and congestion. These are not the types of symptoms for which a compensable rating may be assigned under DC 6522.

The Board has reviewed the remaining DCs relating to diseases of the nose and throat but finds that DC 6522 is the most appropriate for this case and that a compensable rating is not available for the Veteran's complaints under any other relevant DC. See 38 C.F.R. § 4.97, DCs 6502 - 6524. The Veteran does not have sinusitis, so ratings under DCs 6510 to 6514 are not applicable. He does not have bacterial rhinitis or granulomatous rhinitis, so ratings under DCs 6523 and 6524 are not applicable. In addition, the Board concludes that the Veteran's allergic rhinitis symptoms do not result in functional impairment sufficient to warrant a compensable rating under any other DC.

Given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323 - 29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for an increased initial rating for allergic rhinitis. As the evidence of record persuasively weighs against an increased rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781 - 82 (Fed. Cir. 2021). 

 

PAULA B. McCARRON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Harris, Associate Counsel

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.