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