Citation Nr: 0811099 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 96-00 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for residuals of a fractured left zygoma with deviated septum and antrostomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran served on active duty from July 1960 to August 1964. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which denied the benefit sought on appeal. In a February 2004 decision, the Board denied an increased evaluation. The veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a May 2006 decision, the Court vacated the Board's February 2004 decision and remanded the matter to the Board for readjudication consistent with the decision. In March 2007, the Board remanded the case for the RO to schedule an additional examination and to consider the issue of a separate evaluation for facial numbness as a manifestation of the service-connected disability. After an examination was obtained, a rating decision in October 2007 assigned a separate 10 percent rating for sensory neuropathy, effective from March 31, 1994. The record does not reflect that the veteran or his attorney has submitted a notice of disagreement (NOD) as to either the rating or the effective date that was assigned, although the appeal period concerning that decision has not yet expired. Therefore, no issue concerning that issue is before the Board. The veteran testified at a hearing before the Board at the RO in September 1996. However, the Veterans Law Judge who presided at that hearing is no longer employed by the Board. The Board wrote the veteran in February 2007 to provide him an opportunity for a hearing before another Veterans Law Judge. His attorney responded in February 2007 that he did not want another hearing. The actions requested in the March 2007 remand have been completed to the extent possible, and the case is ready for final appellate consideration. FINDINGS OF FACT The evidence shows that the veteran's service-connected residuals of a fractured left zygoma with deviated septum and antrostomy have been manifested throughout the appeal by chronic headaches and slight tenderness over the left zygoma. There is no medical evidence of any recurrent episodes of sinusitis, either incapacitating or non-incapacitating requiring treatment with antibiotics. CONCLUSION OF LAW The criteria are not met for an increased rating for residuals of a fractured left zygoma with deviated septum and antrostomy, currently evaluated 10 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, and 4.97, Code 6513 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Analysis The present appeal involves the veteran's claim that the severity of his service-connected residuals of fractured left zygoma with deviated septum and antrostomy warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. The Board must also consider the effect of pain on those activities, if appropriate. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2007). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In October 1996, VA revised the criteria for rating disabilities of the respiratory system. Generally, where a 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 more favorable to appellant will apply. Further, VA's General Counsel has held that if the amended regulation is more favorable to the claimant, then the retroactive reach of the regulation is governed by 38 U.S.C.A. § 5110(g), which provides that VA may, if warranted by the facts of the claim, award a benefit based on a change in law retroactive to, but no earlier than, the effective date of the change. VAOPGCPREC 3-2000; VAOPGCPREC 7-2000. The Board is bound by those rulings. Prior to October 7, 1996, the rating schedule provided that a 30 percent rating for sinusitis required severe chronic sinusitis, with frequently incapacitating recurrences, severe and frequent headaches, and purulent discharge or crusting reflecting purulence. A 50 percent rating was warranted for postoperative residuals after radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. Code 6513. In addition, a separate 10 percent rating may be assigned for marked interference with breathing due to traumatic deflection of the nasal septum. Code 6502. Beginning October 7, 1996, a 30 percent rating requires three or more incapacitating episodes per year of sinusitis 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. Following 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, a 50 percent rating is warranted. Code 6513. Code 6502 was revised to require 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side to warrant assignment of a 10 percent rating. VA clinic records have been obtained that reflect treatment or evaluation of his facial disability through 1998. Although he has been notified at least three times since December 2001 that he should submit any records of treatment for the disability or should identify the sources of any such treatment so that VA could assist him in obtaining those records, he has not done so. VA clinic records dated through September 2003 have also been obtained, but those records pertain to treatment for unrelated ailments and do not mention any current symptoms or clinical findings regarding his facial disability. The record shows that the veteran has undergone surgery on his nose and sinuses several times, in addition to the initial repair following the traumatic injury in service. He has indicated that the last surgery was in 1981. The VA treatment records through 1998 show that he was seen infrequently complaining of difficulty breathing through his nose, constant headaches behind his left eye, and post-nasal drip. The veteran also testified that he had similar symptoms at a Board hearing in September 1996. The medical records do not reflect any treatment for sinus infections with antibiotics or clinical findings indicative of infection - the nasal passages were always noted to be clear and free of crusting. The veteran has also been afforded four VA compensation examinations during the course of his appeal - in February 1997, October 1998, September 2002, and September 2007. His complaints to each examiner were essentially identical - episodes of sinusitis twice a year, constant frontal headache, and post-nasal discharge. He indicated that he would get pain in the area of his left zygoma, and he also reported difficulty breathing through the left side of his nose. The clinical findings recorded by each of those examiners were also essentially the same: little or no nasal or post-nasal discharge, slightly decreased airflow through the left side of the veteran's nose (the two most recent examiners quantified the decrease at no more than 20 percent on each side), no evidence of purulence, and slight tenderness over the left zygoma. The examiner in September 2002 also indicated that there was no sign of osteomyelitis in the area of the previous fracture. Although the veteran has reported that he has episodes of sinusitis twice a year, there is no medical documentation that he has had any episodes of true sinusitis for many years. In this regard, the Board observes that, while he reported to the VA examiner in September 2007 that he had been treated by a private physician with antibiotics for 10 days 6-7 months previously, he has not provided any medical records to support that claim. Moreover, his attorney wrote in July 2007 that he "cannot remember the names of [any private] doctors" who had treated him. The Board finds that his inability to recall the name of the doctor who had treated him for sinusitis with antibiotics just a few months earlier significantly detracts from his credibility. In the absence of medical documentation of any incapacitating recurrences of sinusitis, or of notations of evidence of purulence or other discharge, the Board concludes that the evidence throughout the appeal period more nearly approximates the criteria for a 10 percent under the rating criteria of Code 6513 that were in effect prior to October 1996, despite the veteran's report of frequent or even constant headaches due to sinusitis. Further, because there is no documentation of incapacitating episodes of sinusitis requiring antibiotics at any time during the appeal period, let alone during the past year, the criteria are also not met for a 30 percent rating under the revised rating criteria for Code 5613. Although the veteran and his attorney have argued that his reported constant headaches and claimed post-nasal drip are equivalent to the six non-incapacitating episodes provided as an alternative basis for a 30 percent rating under the revised criteria, the Board disagrees. There is no documentation of his claimed constant post-nasal drip in any of the treatment records or in the reports of any of the four VA compensation examinations during the appeal period - none of the examiners noted discharge, purulence, or crusting as might indicate significant chronic sinusitis. The Board acknowledges that the veteran complained of constant headaches to the VA compensation examiners. But that symptom by itself is not enough to warrant a rating greater than 10 percent under either the old or the revised criteria of Code 6513. In addition, the medical evidence does not show significant obstruction in either nasal passage as might warrant a compensable rating under the criteria of either the old or revised Code 6502. In summary, the Board concludes that the criteria are not met for a rating greater 10 percent under any applicable diagnostic code in effect either prior to or beginning October 7, 1996. The Board also observes that there is no evidence that the veteran's service-connected disability has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, that it has necessitated frequent periods of hospitalization, or that it has otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of his disability. In the absence of such factors, the Board finds that the evidence does not warrant referral of the case for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). For all the foregoing reasons, the claim for an increased evaluation for residuals of fractured left zygoma with deviated septum and antrostomy must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). II. Duties to Notify and to assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant 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) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). For an increased-compensation claim, § 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. Vazquez-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's 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. Although the veteran was notified generally concerning what needed to be shown to support a higher disability evaluation, he was not given the specific notice required by Vazquez- Flores prior to the denial of his claims for increase. Nonetheless, both the rating decision and the statement of the case and supplements thereto that discussed the assignment of higher disability evaluations specifically informed him of the rating criteria that would be applied, and he has had many opportunities over the 10 years of this appeal, including at a hearing, to supply information or evidence concerning worsening or increase in severity of the disabilities at issue and the effect such worsening has on his employment and daily life. Significantly, the veteran specifically described to the most recent VA examiner how his service-connected disability affected his daily activities; moreover, the examiner indicated that it would be speculative to comment on the effect of the disability on the veteran's employment, since he had not worked since 1986. In addition, the veteran is represented by an attorney, who is charged with knowledge of the law. Thus, the Board concludes that the veteran, in this instance, was not prejudiced by the lack of specific notice required by Vazquez-Flores prior to adverse decisions that are the subject of this appeal. In the present case, VA satisfied its duty to notify by means of letters from the agency of original jurisdiction (AOJ) to the appellant in December 2001, September 2003, and May 2007. Those letters informed the appellant of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. The Board acknowledges that the required notice was not provided before the adverse decision in January 1995. Although the appellant has the right to content-complying notice and proper subsequent VA process, he has received that notice. The error in not providing the required notice prior to the adverse decision was cured by the above letters, and so is harmless. Moreover, the appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, including at a hearing. Also, in May 2007, the RO notified the veteran of the information and evidence necessary to establish the downstream elements of a rating and the effective date for a rating, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity, including at a hearing, to participate effectively in the processing of his claim and appeal. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. The law also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" ordinarily contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody. In this case, the Board finds that the duty to assist has been fulfilled. During the course of this appeal, the veteran has been afforded four VA compensation examinations, and VA treatment records covering the entire period of the appeal have been received. He has been asked to identify the names of any non-VA health care providers who have treated him for his service-connected disability, but he has been unable to do so. No further development action is necessary. ORDER An increased evaluation for residuals of a fractured left zygoma with deviated septum and antrostomy, currently evaluated as 10 percent disabling, is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs