Citation Nr: 0810519 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-32 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a septorhinoplasty with deviation of the septum, temporal swelling, and chronic headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The veteran served on active duty from June 1977 to June 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the above claim. FINDING OF FACT The veteran's residuals of a septorhinoplasty include 50 percent occlusion of her left nasal passage, temporal swelling, and chronic headaches. CONCLUSION OF LAW The criteria for a 30 percent rating, and no higher, for the veteran's residuals of a septorhinoplasty have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.20, 4.86, Diagnostic Codes (DCs) 6502, 6514 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159. VA must notify the claimant (and his representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, and (4) VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice should be provided to a claimant before the initial unfavorable decision on a claim by an agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, such as this one, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vasquez- Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. The veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in January 2004 informed the veteran of the first three elements required by the Pelegrini II Court as stated above. Although she was not specifically requested to submit all evidence in her possession, the letter informed her of the types of evidence she should submit and that if she had no evidence in her possession, to submit a VA form 21-4138. A reasonable person could be expected to understand this as request for any evidence in his/her possession. Further, a letter dated in December 2005 requested that she submit any information or evidence in her possession, and she communicated her understanding in a March 2006 VCAA notice response in which she indicated that she had no further information or evidence to provide to substantiate her claim. Therefore, the purpose of VCAA notice was not frustrated. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The January 2004 and December 2005 letters, however, did not describe the particular rating criteria used in evaluating a deviated septum or discuss what evidence was necessary with respect to the rating criteria. Although the veteran has not raised any notice issues, the failure to provide complete, timely notice to the veteran raises a presumption of prejudice, which VA is required to rebut. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the veteran was not prejudiced by the flaws in the original January 2004 and December 2005 letters. First, in a March 2006 letter, she was notified that disabilities are rated on the basis of diagnostic codes, and was told of the need to present evidence to meet the rating criteria and to establish an effective date of an award. The specific rating criteria for evaluating the residuals of septorhinoplasty were provided in the September 2005 and June 2007 statements of the case. Thus, the flaws in the January 2004 and December 2005 letters were cured before transferring the appeal to the Board in February 2007. Additionally, the veteran's statements reflect that she had actual knowledge of the evidence necessary for an increased rating for residuals of her in-service septorhinoplasty. In her October 2005 appeal to the Board, she reported her constant headaches, nasal drip, and difficulty breathing, indicating that she understood that while she was receiving the maximum rating for a deviated septum, an increased rating through analogy to other rating criteria is available in some circumstances based on the frequency of, and level of incapacity caused by, her sinusitis-related headaches. Accordingly, she demonstrated an understanding of the evidence of symptomatology necessary for a higher disability rating. As such, the Board finds that she had actual knowledge of the particular rating criteria used in evaluating her disability and of what evidence was necessary for an increased rating, and therefore was not prejudiced by any notice deficiency. Regarding the duty to assist, the RO obtained the veteran's VA and private treatment records, and provided her with two VA examinations. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the veteran by VA would serve any useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. II. Increased rating for Residuals of Septorhinoplasty The veteran was initially granted service connection for residuals of septorhinoplasty with continued deviation of the septum, temporal swelling, and chronic headaches in an August 2001 rating decision and was assigned a 10 percent rating under DC 6502, effective on July 20, 2000. She contends that her disability is worse than it is currently rated. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2007). Otherwise, the lower rating will be assigned. Id. Generally, an evaluation of the extent of impairment requires consideration of the whole recorded history (38 C.F.R. §§ 4.1, 4.2), but when, as here, service connection has been in effect for several years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. As discussed below, the record reflects that the veteran's disability remained constant with respect to the applicable schedular criteria. Under 38 C.F.R. § 4.86, DC 6502, the maximum, and indeed, the only rating for service-connected deviation of the septum is 10 percent. This rating is assigned where the veteran's nasal passage is 50 percent obstructed on both sides, or completely obstructed on one side. 38 C.F.R. § 4.86, DC 6502 (2007). Although a 10 percent rating is the maximum schedular rating under DC 6502, VA may consider other analogous rating criteria if warranted under the facts and circumstances of a case. See 38 C.F.R. § 4.20 (2007). Specifically, evaluation of a service-connected disability in accordance with schedular criteria that closely pertain to an analogous disease in terms of functions affected, anatomical localization, and symptomatology, is permitted. Id. In the present case, the RO determined and the Board agrees, that the most closely analogous diagnostic code is 38 C.F.R. § 4.118, DC 6514, which pertains to chronic sinusitis. Under 38 C.F.R. § 4.86, DC 6514, a 10 percent rating is assigned where the symptoms of sinusitis result in one or two incapacitating episodes per year, requiring prolonged (four to six weeks) antibiotic treatment, or three to six non- incapacitating lasting episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned where the symptoms of sinusitis result in three or more incapacitating episodes per year, 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. A 50 percent rating is assigned following a 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. 38 C.F.R. § 4.86, DC 6514 (2007). The evidence of record, including two VA examination reports, private hospital treatment records, and VA treatment records, indicates that the veteran's septorhinoplasty-related symptomatology has increased in severity such that a 30 percent rating is warranted. Although the veteran seeks primary care from VA, her treatment with VA is largely unrelated to the residuals of her septorhinoplasty. During an October 2003 treatment, however, she reported that she still had headaches two times a week and that the status of her in-service septorhinoplasty was unchanged. In December 2003, the veteran was admitted to the Wahiawa General Hospital emergency room for left face pain, particularly tightness in her face that had progressed to excruciating pain. She reported that she had a prior nasal fracture that was surgically repaired and had since caused sinus problems. She further reported that she had experienced similar pain with prior sinus infections. The doctor noted tenderness over the left maxillary sinus and diagnosed the veteran with maxillary sinusitis. The veteran underwent a VA examination in January 2004, where she provided a history of the events leading up to her in- service septorhinoplasty and the residuals of the surgery. She reported that within the past year, she had two sinus infections, one of which resulted in the left side of her face swelling and subsequent admission to the emergency room. The veteran also reported difficulty breathing through her nose and more frequent headaches, stating that whereas she used to have a headache about once a week, she now had headaches three to four times a week. She also reported that the headaches involved a sharp pain in the center of her forehead running in a vertical line under her eyes and in her left cheek, causing her eyes to water and her nose to run. The examiner noted obvious nasal septum deviation to the right, that the left nare was more open and patent than the right nare, and that the veteran appeared to breath easier out of the left nare than the right nare upon occlusion. The examiner assessed the veteran as having status post septorhinoplasty after a fall on the face in active duty training; two recurrent sinus infections within the past year with facial swelling, increased headaches; and difficulty breathing that was confirmed on examination. Additionally, x-rays of the sinuses revealed an absent right frontal sinus and possible right ethmoid chronic sinusitis. In March 2004, the veteran was again admitted to the Wahiawa General Hospital emergency room visit for left face pain and a sinus problem. She reported that she had left face pain, similar to what she had experienced in the past with sinus infections. The doctor noted slight swelling under the patient's left eye and tenderness over the left maxillary sinus. The veteran was diagnosed with chronic sinusitis with recurrent bouts of infectious sinusitis. The veteran underwent a second VA examination in October 2005, including both a neurological and a nose/sinus examination. During the neurological examination, she reported a history of frontal and mancillary sinus headaches two to three times a week, which she treated with Tylenol, a history of fracturing her nose in a fall during basic training that required nose surgery, and a history of swelling of both temples with corresponding pain. The examiner noted that the veteran required bed rest for one hour two times a week for her headaches. The examiner diagnosed a history of headaches due to sinusitis. During the nose/sinus examination, the veteran reported that her nose felt stuffed up, that she had a history of chronic frontal and maxillary sinusitis with headaches dating from 1993, and that her headaches required one hour of bed rest two times a week. The examiner noted that there was no purulent discharge, dyspnea, speech impairment, or current sinus tenderness or swelling. The veteran's nasal septum was deviated with 50 percent obstruction on the left side and there was no obstruction of the right side. The examiner diagnosed the veteran with status post septorhinoplasty with continued deviation of the septum and chronic headaches. Based on this record, the Board finds that the veteran's residuals of a septorhinoplasty more nearly approximate the criteria for a 30 percent rating under DC 6514. See 38 C.F.R. § 4.7. During an October 2003 VA treatment, the veteran reported that she had headaches two times a week. In January 2004, she reported two sinus infections within the past year and headaches three to four times a week, with pain and tenderness across her cheek and under her eyes. The veteran has twice sought emergency room care for sinus infections, once in December 2003 and again in March 2004. In October 2005, she reported sinus headaches two to three times a week, with pain in her temples and face, which required bed rest for at least one hour twice a week. This evidence suggests that the veteran has had more than six non- incapacitating episodes per year of sinusitis characterized by headaches and pain; in fact, she has sinus headaches two to four times a week. Accordingly, the Board finds that a 30 percent rating is warranted. Although a 30 percent rating is warranted, the veteran's disability picture does not rise to the severity required for a 50 percent rating. The record is devoid of chronic osteomyelitis following a radical surgery, or of near constant sinusitis characterized by headaches, pain, tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Rather, the veteran's history includes only one surgery, with no resultant osteomyelitis, and the VA examiner in 2005 reported that there was no purulent discharge. Accordingly, considering all the evidence of record, the veteran's disability picture more closely approximates the criteria for a 30 percent disability rating; however, because her condition has not required repeated surgeries and has not resulted in osteomyelitis, a 50 percent rating is not warranted. Therefore, an increased rating of 30 percent, and not higher, for residuals of septorhinoplasty is granted, effective November 5, 2003, the date of her claim for an increased rating. III. Extraschedular Rating To accord justice in an exceptional case where the scheduler standards are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment may be assigned. 38 C.F.R. § 3.321(b)(1) (2007). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization, such that the rating schedule is inadequate to compensate for the average impairment of earning capacity for a particular disability. The Board is precluded from assigning an extraschedular rating in the first instance; however, the Board is not precluded from raising this question, and in fact, is obligated to liberally read all evidence of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board must address referral under 38 C.F.R. §3.321(b)(1) only in cases involving exceptional or unusual circumstances. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, there is no indication that the disability picture associated with the veteran's service-connected residuals of septorhinoplasty is so exceptional or unusual that the normal provisions of the rating schedule do not adequately compensate her for such disability. It is not shown by the evidence that she has required frequent hospitalizations for her status post septorhinoplasty. Although she sought emergency room treatment on two occasions, there is no evidence that the veteran has required frequent or extended periods of hospitalization for such disability; rather, she was promptly released from both emergency room visits, in stable condition, on the same day that she arrived. Further, the evidence fails to show that such residuals have caused a marked interference with her employment. The medical evidence on file describes the veteran's residuals of septorhinoplasty as including chronic sinusitis, headaches, and temporal swelling. She reported in her April 2004 notice of disagreement that she was unable to find employment because her headaches prevented her from working two days a week and the pain medication she takes for her headaches makes it unsafe for her to operate heavy machinery, drive, or work as a baker or nurse's assistant. The rating criteria currently assigned to the veteran contemplates the symptoms she has complained of, namely chronic sinus headaches. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The medical evidence does not reflect other symptomatology not considered by the current rating schedule that would warrant increased compensation, and while the veteran may be incapable of performing past job functions, there is no evidence of record that there is marked interference with employment due to her disability. Therefore, because the impact of the veteran's residuals of septorhinoplasty is not so extreme as to warrant an extraschedular evaluation, no referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is made in this case. ORDER Entitlement to a 30 percent rating, and no higher, for residuals of a septorhinoplasty with deviation of the septum, temporal swelling, and chronic headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs