Citation NR: 9741564 Decision Date: 12/16/97 Archive Date: 12/19/97 DOCKET NO. 96-34 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for loss of sense of smell. 2. Entitlement to an increased rating for residuals of a deviated nasal septum with obstruction, currently evaluated as 10 percent disabling. 3. Whether an April 5, 1996 rating decision denying service connection for the residuals of a broken nose was clearly and unmistakably erroneous. REPRESENTATION Veteran represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active service from August 1942 to March 1946. This matter comes to the Board of Veterans’ Appeals (Board) from a June 1996 rating decision of the Department of Veterans Affairs (VA) Salt Lake City Regional Office (RO). CONTENTIONS OF VETERAN ON APPEAL The veteran and his representative contend, in essence, that the service-connected residuals of a deviated nasal septum with obstruction are more severe than the current 10 percent evaluation indicates. It is also stated that he has lost his sense of smell secondary to his service-connected nasal disability. He also argues that an April 1946 rating decision denying service connection for the residuals of a broken nose was clearly and unmistakably erroneous. He maintains that the RO failed to evaluate his specific claims, failed to review the entire service medical record, and failed to notify him of specific conditions for which service connection was denied. DECISIONS OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim of service connection for loss of sense of smell is well grounded. It is also the decision of the Board that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for residuals of a deviated nasal septum with obstruction, and that the April 5, 1946 rating decision denying service connection for the residuals of a broken nose was not clearly and unmistakably erroneous. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The record contains no competent (medical) evidence showing a causal relationship between the veteran’s decreased sense of smell and his period of service, any incident therein, or any service-connected disability, including residuals of a deviated nasal septum. 3. The veteran’s deviated nasal septum with obstruction is currently manifested by severe external and internal nasal deviation and severe nasal obstruction. 4. In an April 1946 rating decision, the RO denied service connection for the residuals of a broken nose with deviated septum and, although he was notified of this denied decision, the veteran did not file a timely appeal therewith. 4. In December 1995, the veteran alleged that clear and unmistakable error had been committed in the April 1946 rating decision. 5. The April 1946 rating decision which denied service connection for the residuals of a broken was reasonably supported by the evidence then of record and by the prevailing legal authority. CONCLUSIONS OF LAW 1. The veteran’s claim of entitlement to service connection for loss of sense of smell is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an evaluation in excess of 10 percent for a deviated nasal septum with obstruction have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.97, Diagnostic Code 6502 (1996); 61 Fed.Reg. 46728 (1996) (to be codified at 38 C.F.R. § 4.97, Diagnostic Code 6502 (1997)). 3. The RO’s April 1946 rating decision was not clearly and unmistakably erroneous in denying service connection for residuals of a broken nose. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. § 3.105(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran’s August 1942 military enlistment physical examination report shows a notation of a deviated septum. A review of the in-service medical records demonstrates that he sought treatment in November 1945 for difficult respiration and marked obstruction of the left nasal passage. Examination showed a marked deviation of the nasal septum and bony nasal bridge. It was noted that this deformity was “a result of injury while in the service.” He was thereafter hospitalized and a rhinoplasty was performed under local anesthesia; the veteran progressed satisfactorily and he was returned to duty in March 1946. The March 1946 report of service separation physical examination shows a notation of a recent submucous resection in 1946, but no further pertinent complaints or abnormalities. In April 1946, the veteran filed a claim of service connection for a fungus of the entire body and the residuals of a broken nose, including a deviated nasal septum, periodic swelling and frequent pain. By April 5, 1946 rating decision, the Dallas RO denied his claim for the residuals of a broken nose on the basis that no current disability was found on the March 1946 separation examination. The veteran was notified of this decision by April 1946 letter; in the letter, the RO informed the veteran that “his claim” had been denied because service medical records did not show any disability at the time of his discharge. The veteran did not timely appeal this decision and, thus, it is final. Veteran’s Regulation No. 2(a), pt. II, par. III; VA Regulation 1008 (effective January 25, 1936 to December 31, 1957). In December 1995, the veteran filed a claim, stating that the April 1946 rating decision denying service connection for the residuals of a broken nose, including a deviated nasal septum, was clearly and unmistakably erroneous in failing to consider service medical records showing surgery for a deviated nasal septum. In the alternative, the veteran requested that his claim of service connection for a deviated nasal septum be reopened based on new and material evidence. In support of his claim, a September 1995 letter from L.F. Smith, M.D., was submitted to the effect that he recently had treated the veteran for complaints of nasal obstruction. On examination, the veteran reported that he had undergone surgery in service; he stated that the surgery was somewhat unsuccessful, that he had had persistent dysfunction and difficulty breathing out of the left nostril since that time, and that he had lost the ability to smell. Examination showed a severe septal deviation and turbinate hypertrophy with nearly 100 percent obstruction on the left side and a large amount of obstruction on the right side. Dr. Smith’s assessment was that the veteran had a severe septal deviation and nasal obstruction and he probably had an old nasal fracture or septal deviation which was not adequately repaired with prior surgery. He also indicated that the veteran had lost his ability to smell, but that if a septoplasty and turbinate reduction surgery were performed, his sense of smell could return. The veteran underwent VA medical examination in May 1996. He reported that he had broken his nose in service in 1943; two years later, he stated that he underwent nasal reconstruction. Since that time, he had had severe airway obstruction. Additionally, in the past ten years, he stated had really noticed that he lost his sense of smell. Physical examination showed external nasal deviation to the right; the septum was “really deviated” with evidence of previous fracture with a large spur in the left nares. The septum was also deviated to the right causing bilateral obstruction. He had narrow nasal valves, bilaterally, and had no sense of smell to formaldehyde. When ammonia was used, the veteran noticed the noxious stimuli, but otherwise denied any sense of smell of ammonia. The assessments were traumatic deviation of the nasal septum and external nose, and decreased sense of smell, cause unknown. Based on this evidence, by June 1996 rating decision, the RO granted service connection for the residuals of a deviated nasal septum with obstruction; a 10 percent evaluation was assigned under Diagnostic Code 6502, effective from December 22, 1995. In addition, the RO denied service connection for loss of sense of smell and determined that the April 1946 rating decision denying service connection for the residuals of a deviated nasal septum was not clearly and unmistakably erroneous. The veteran subsequently perfected appeals with respect to these issues. In his August 1996 substantive appeal, he argued that the April 1946 denial of service connection for the residuals of a broken nose was clearly and unmistakably erroneous because he was never provided a copy of the April 1946 rating decision and the letter notifying him of that decision made no mention of the denial of the specific claim for the residuals of a broken nose. Rather, he contended that it merely stated his claim had been denied because no disabilities were found on military separation examination. II. Service connection for loss of sense of smell Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. Additionally, applicable regulations provide that a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The initial question before the Board is whether the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 5107(a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has set forth the parameters of what constitutes a well- grounded claim, i.e., a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of section 5107(a). See Epps v. Gober, No. 97-7014 (Fed. Cir. Oct. 7, 1997). More specifically, the Federal Circuit has held that in order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Id.; see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Although the claim need not be conclusive, it must be accompanied by evidence. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must “justify a belief by a fair and impartial individual” that the claim is plausible. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). A claim for secondary service connection, like all claims, must be well grounded. Reiber v. Brown, 7 Vet.App. 513 (1995); Harvey v. Brown, 6 Vet.App. 390 (1994). Generally, when a veteran contends that his or her service-connected disability has caused a new disability, he or she must submit competent medical evidence of a causal relationship directly between the two disabilities to establish a well-grounded claim. Jones v. Brown, 7 Vet.App. 134 (1994). In this case, the service medical records are negative for complaints of loss of sense of smell. On VA examination in May 1996, the veteran indicated that he noticed a decreased sense of smell, ten years earlier in 1986, approximately forty years following his final separation from active service. However, the VA examination report does not link the veteran’s decreased sense of smell to his service, any incident therein, or any service-connected disability. In fact, the examiner indicated that the veteran’s decreased sense of smell was of unknown etiology. The Board has also considered the September 1995 letter from Dr. Smith to the effect that the veteran was unable to smell on most recent examination. However, Dr. Smith did not provide an opinion with respect to the etiology of the veteran’s loss of sense of smell; rather, he merely stated that the veteran probably had an old nasal fracture which was not adequately repaired by surgery, and that if such surgery were performed now, he would probably benefit therefrom and the loss of smell may return. Therefore, lacking evidence of decreased sense of smell in service or for many years thereafter, and lacking competent medical evidence of a link or causal relationship between the veteran’s decreased sense of smell and his service, any incident therein, or any service-connected disability, the Board must conclude that the veteran’s claim of service connection for loss of sense of smell is not well grounded. 38 U.S.C.A. § 5107(a); Caluza, 7 Vet.App. at 506. In order to present a well-grounded claim, the veteran must submit competent medical evidence showing that his loss of sense of smell and his service-connected deviated nasal septum are causally related. See Robinette v. Brown, 8 Vet.App. 69, 77-78 (1995). In this case, the Board finds that the RO has fulfilled its obligation under 38 C.F.R. § 5103(a) in that it has notified the veteran of the reasons for the denial of service connection and the type of evidence lacking in the June 1997 Statement of the Case. Furthermore, by this decision, the Board is informing the veteran of the evidence which is lacking and that is necessary to make the claim well grounded. Once a well-grounded claim is submitted, the VA is then obligated to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). Although the Board considered and denied the veteran’s claim on a ground different from that of the RO, which apparently denied the claim on the merits, the veteran has not been prejudiced by the decision. In assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). III. Increased rating for the residuals of a deviated nasal septum with obstruction Initially, the Board finds that the veteran’s claim for an increased evaluation for the residuals of a deviated septum with obstruction is well grounded within the meaning of 38 U.S.C.A. § 5107(a). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The VA now has a duty to assist the veteran in the development of facts pertinent to this claim. 38 U.S.C.A. § 5107(a). The veteran underwent VA examination in May 1996 in connection with his claim. Thus, absent any indication from the veteran or his representative that there is outstanding evidence available which is pertinent to his claim, the Board is also satisfied that all relevant facts have been properly developed with respect to this claim and that the VA’s statutory duty to assist the veteran has been met. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities. 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 in or aggravated by military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1996). Separate diagnostic codes identify the various disabilities. 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 (1996). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (1996), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). The veteran’s service-connected residuals of a deviated nasal septum with obstruction was rated by the RO under 38 C.F.R. § 4.97, Diagnostic Code 6502. Under that Diagnostic Code, which concerns deflection of the nasal septum, a zero percent rating is granted for residuals of trauma with only slight symptoms. A 10 percent rating is assigned where residuals of trauma produce marked interference with the breathing space. A 10 percent disability evaluation represents the highest schedular evaluation which can be granted for deflection of the nasal septum under that provision. 38 C.F.R. § 4.97, Diagnostic Code 6502 (1996). As such, the veteran is not entitled to an evaluation in excess of 10 percent under Diagnostic Code 6502. However, subsequent to the RO’s initial adjudication of this claim, the Rating Schedule as it pertains to the respiratory system was updated and changed, including a revision of 38 C.F.R. § 4.97, Diagnostic Code 6502. The U.S. Court of Veterans Appeals (Court) has held that “[w]here the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to [the] appellant generally applies.” White v. Derwinski, 1 Vet.App. 519, 521 (1991); see also Karnas v. Derwinski, 1 Vet.App. 308 (1991). Moreover, when there is a change in the legal criteria for adjudicating a claim, the veteran must be provided full notice and have an opportunity to be heard at the RO so that prejudice does not result. Bernard v. Brown, 4 Vet.App. 384 (1993). In this case, a review of the record indicates that the RO has considered the new criteria in evaluating the veteran’s disability. Thus, the Board will apply the version of the Rating Schedule which is most favorable to the veteran. The revised Diagnostic Code 6502 contemplates a 10 percent rating for a traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 61 Fed.Reg. 46,728 (1996) (codified at 38 C.F.R. § 4.97, Diagnostic Code 6502 (1997)). Like the prior version of Diagnostic Code 6502, the 10 percent rating remains the maximum assignable and the veteran is not entitled to an evaluation in excess of 10 percent under the revised criteria. Id. Although the veteran’s 10 percent rating remains the maximum assignable rating under either version of Diagnostic Code 6502, consideration must also be given to the potential application of various other provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran. See generally, Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Loss of part of the nose, or scars exposing both nares, is rated 30 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6504. The revised version of Diagnostic Code 6504 provides substantially similar criteria. Since the veteran currently is not shown to have any of these symptoms, however, rating the condition under Diagnostic Code 6504, the only other potentially applicable schedular provision which could result in an evaluation in excess of 10 percent, is not appropriate. In reaching this decision, the RO and the Board have considered application of the provisions of 38 C.F.R. § 3.321 (1996). In exceptional cases where the schedular standards are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, however, the veteran has not submitted evidence tending to show that the disability caused by his deviated nasal septum is unusual, or that it causes marked interference with work other than as contemplated within the schedular provisions discussed herein, or that it requires frequent periods of hospitalization as to warrant an extraschedular increased evaluation. In the absence of such factors, the Board finds no basis for application of the provisions of 38 C.F.R. § 3.321 to this case. IV. Whether the April 5, 1996 rating decision denying service connection for the residuals of a broken nose was clearly and unmistakably erroneous Previous determinations which are final and binding, including decisions of service connection and degree of disability, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (1996). The Court has propounded the following three-part test to determine whether clear and unmistakable error is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made;” and (3) a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet.App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet.App. 310, 313- 14 (1992) (en banc)). A finding of clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). It must always be remembered that clear and unmistakable error is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim clear and unmistakable error on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. Fugo v. Brown, 6 Vet.App. 40 (1993), en banc review denied, Fugo v. Brown, 6 Vet.App. 162 (1994). In this case, the veteran contends in essence that the April 1946 rating decision was clearly and unmistakably erroneous because that the RO failed to review the entire service medical record. The Board has considered the veteran’s contentions and the pertinent evidence of record. The law and regulations applicable to his 1995 reopened claim of service connection are substantively the same is those in effect at the time of the April 1946 RO decision. The evidence before the RO at the time of the April 1946 decision consisted of the veteran’s statements and his service medical records. The veteran argues that the RO should have allowed service connection in 1946 because the service medical records show that he underwent surgery for a deviated nasal septum that was determined to be the result of an in-service injury. It appears, however, that in 1946 the RO concluded that the veteran’s service separation medical examination report, which merely noted a recent submucous resection and was silent for clinical findings of any abnormal residuals from that surgery, did not show a then-current disability. This decision is one that is within the judgment of the RO, and is not undebatably contradicted by the evidence of record at that time. The veteran’s position with regard to this issue is more akin to a disagreement as to how the facts were previously weighed or evaluated; no matter how compelling, such a contention cannot form the basis for a claim of clear and unmistakable error. See Luallen v. Brown, 8 Vet.App. 92 (1995). Thus, Board is unable to find that “undebatable error” of a prejudicial nature was committed by the RO in its April 1946 rating decision. Likewise, there is no evidence that the correct facts as they were known in April 1946 were not before the RO, and there is no evidence that the RO incorrectly applied the statutory or regulatory provisions applicable at that time. Additionally, the veteran has argued that the April 1946 rating decision is clearly and unmistakable erroneous because of a procedural error, namely, that the RO failed to delineate the specific conditions for which service connection was being denied in its April 1946 notification letter. Specifically, he has noted that in April 1946 he had filed claims of service connection for a fungus of the entire body and the residuals of a broken nose, including a deviated nasal septum, periodic swelling and frequent pain. However, in its April 1946 letter, the RO merely informed him that “his claim” had been denied because service medical records did not show any disability at the time of his discharge; the specific disabilities claimed by the veteran were not delineated. In this case, however, the Board finds that these contentions do not provide a basis to grant the veteran’s claim. As indicated above, clear and unmistakable error must be the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made. The veteran does not argue that he never received notification of the adverse decision or that he did not fully understand the nature of the RO’s letter. While it might have been better if such notice from the RO were more clear that his claim of service connection for a fungus and residuals of a broken nose, including a deviated nasal septum, had both been denied, nevertheless, the Board finds that the April 1946 notification letter was sufficient to adequately convey to the veteran information that his entire claim had been denied. It is also significant to note that no follow-up letter or inquiry from the veteran requesting clarification of this matter is of record. As such, it appears that he had no doubts at the time as to the status of his claim. The Board is therefore of the opinion that any error in failing to specifically delineate the disabilities for which service connection was denied was basically clerical in nature and ultimately harmless. Clerical error does not meet the criteria for clear and unmistakable error. See e.g., Winslow v. Brown, 8 Vet.App. 469, 474 (1996). This is because there is no indication that if the RO had delineated the claims for which service connection was being denied in the April 1946 notification letter, the outcome of this case would have been “manifestly changed.” ORDER Service connection for loss of sense of smell is denied. An evaluation in excess of 10 percent for residuals of a deviated nasal septum with obstruction is denied. An April 5, 1996 rating decision denying service connection for the residuals of a broken nose was not clearly and unmistakably erroneous. J.F. GOUGH Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -