Citation Nr: 0814076 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-27 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 1. Entitlement to a compensable evaluation for status postoperative submucous resection for nasal septal deviation. 2. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 due to treatment for a service-connected disability requiring convalescence. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from November 1986 to November 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Togus, Maine. The Board observes that the veteran originally filed his claim for an increased evaluation with the RO in Detroit, Michigan; however, the RO in Togus, Maine issued the July 2003 rating decision. The veteran subsequently submitted his Notice of Disagreement to the RO in Detroit, Michigan, which then issued the February 2004 Statement of the Case and certified his appeal to the Board. The Board notes that the July 2003 rating decision on appeal considered the issue of entitlement to a temporary total rating based on convalescence. The February 2004 statement of the case also considered this issue. In his substantive appeal, received in July 2004, the veteran indicated that he wanted to appeal all issues listed on the statement of the case. As such, the Board finds that a timely appeal has been completed and this issue is for consideration. This matter was previously before the Board in May 2005 and it was remanded to afford the veteran a hearing. In September 2005, the appellant testified during a Travel Board hearing before the undersigned Veterans Law Judge at the Detroit RO. A transcript of that hearing is of record. This matter was again before the Board in January 2006 and was remanded for further development. FINDINGS OF FACT 1. Throughout the rating period on appeal, the veteran's status postoperative submucous resection for nasal septal deviation is productive of no more than 50 to 60 percent nasal obstruction of the left side and 15 percent nasal obstruction of the right side. 2. The competent evidence of record reveals obvious disfigurement of the veteran's nose, but not scarring or loss of part of the nose that results in exposure of both nasal passages. 3. The March 21, 2003 open septorhinoplasty with bilateral spreader grafts did not result in severe postoperative residuals or otherwise necessitate convalescence beyond April 14, 2003. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for status postoperative submucous resection for nasal septal deviation have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6502 (2007). 2. The criteria for entitlement to a separate 10 percent evaluation for obvious disfigurement of the nose, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3., 4.7, 4.10, 4.97, Diagnostic Code 6504 (2007). 3. The criteria for a temporary total rating under 38 C.F.R. § 4.30 due to treatment for a service-connected condition requiring convalescence have not been met. 38 U.S.C.A. §§ 5103A, 5107 (West 2002); 38 C.F.R. § 4.30 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 VCAA 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned in the event of award of benefits sought. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In the present case, VA issued VCAA notice letters to the veteran dated in May 2003 and January 2006. The letters informed the veteran of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to the claim. According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, 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. Further, if the DC 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 of 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 DC, 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. In the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information. Additionally, the record does not indicate that the veteran has been provided VCAA notice regarding his claim for a temporary total rating. As such, this error is presumed prejudicial. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no prejudicial error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores, 22 Vet. App. at 46. In the present case, the claimant demonstrated that there was actual knowledge of what was needed to establish the increased rating claim. Actual knowledge is established by statements by the claimant and the claimant's representative, to include sworn testimony and arguments presented at the November 2005 Travel Board hearing on appeal, that demonstrates an awareness of what was necessary to substantiate this claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). (See Transcript "Tr." at 2-4.) Additionally, the February 2004 Statement of the Case included a description of the rating formula for all possible schedular ratings under the relevant diagnostic code. As such, the failure to include such notice in the VCAA letter did not prejudice the veteran here. The correspondence from VA also failed to discuss the law pertaining to effective dates. However, because the instant decision denies the veteran's claim for an increased rating, no effective date will be assigned. As such, the absence of notice as to effective dates does not prejudice the veteran here. Additionally, the claimant demonstrated that there was actual knowledge of what was needed to establish the claim for a temporary total rating. Actual knowledge is established by statements by the claimant and the claimant's representative, to include his argument presented with his application for such VA compensation benefits (received in May 2003), that demonstrates an awareness of what was necessary to substantiate the claim. See Dalton, 21 Vet. App.at 30-31; see also Short Bear, 19 Vet. App. at 344. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claims, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error and the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to him. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of post- service VA treatment and examination. Additionally, the claims file contains the veteran's statements in support of his claim, to include testimony at a Travel Board hearing. The Board has carefully reviewed his statements and testimony and concludes that there has been no identification of further available evidence not already of record. Indeed, in a written brief presentation, dated in February 2008, the veteran's representative noted that there is no further argument or evidence to submit at this time. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis The Board has reviewed all of the evidence in the veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. A. Increased rating claim In a statement received in April 2003, the veteran asserts that an increased evaluation is warranted for his service- connected status postoperative submucous resection for nasal septal deviation (nasal disability) disability. As the veteran's claim was received by VA in April 2003, the rating period on appeal is from April 2002, one year prior to the date of receipt of the increased rating claim. 38 C.F.R. § 3.400(o)(2) (2007). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2007) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the history of the disability is for consideration in rating a disability. The veteran's nasal disability, is assigned a noncompensable disability evaluation pursuant to 38 C.F.R. § 4.97, DC 6502. Under this DC, a 10 percent disability evaluation is assigned where there is a 50 percent obstruction of the nasal passage on both sides, or a complete obstruction of one nasal passage. See 38 C.F.R. § 4.97, DC 6502. Ten percent is the only and maximum evaluation available under DC 6502. The Board finds that the evidence of record does not reveal that a compensable disability evaluation is warranted under this DC. In this regard, the Board notes that the objective clinical evidence of record does not show that the veteran has a 50 percent obstruction of both of his nasal passages. Nor does the veteran have a complete obstruction of one of his nasal passages. Indeed, a VA Memorandum, dated in September 2002 and as an addendum to a May 2002 VA examination, indicated that the veteran had 50 to 60 percent nasal obstruction for the left side and 15 percent nasal obstruction for the right side. Further, a report of a May 2006 VA examination reflects that the veteran was able to breathe through the right nare well, but there was a very slight alteration in air flow through the left nare in comparison to the right. See also Written Brief Presentation, dated in February 2008 (noting that the veteran suffers from blockage on the left side of his nose, but conceding that the right side of his nose is clear). Accordingly, the Board finds that a compensable evaluation is not warranted under the provisions of DC 6502. The veteran contends that he is entitled to a compensable rating under DC 6504 because of the disfigurement of his nose. Under DC 6504, a 10 percent rating is warranted for scars of the nose or loss of part of the nose if there is loss of part of one ala, or other obvious disfigurement. A 30 percent rating warranted if the scarring or loss of part of the nose results in exposure of both nasal passages. A Note to DC 6504 states, "Or evaluate as DC 7800, scars, disfiguring, head, face, or neck." 38 C.F.R. § 4.97, DC 6504 (2007). In this regard, the Board notes that the diagnostic criteria concerning disabilities of the skin have undergone revision. See 67 Fed. Reg. 49,596 (July 31, 2002). Such revisions became effective on August 30, 2002. The veteran's claim to reopen the increased rating claim in question was received in April 2003. As such, the amended provision is for application in this case and is set forth below. The current version of 38 C.F.R. § 4.118, effective August 30, 2002, provides that under DC 7800, disfigurement of the head, face, or neck with one characteristic of disfigurement warrants a 10 percent evaluation. The eight characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: a scar five or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at its widest part; surface contour of a scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); missing underlying soft tissue in an area exceeding six square inches (39 sq. cm.); skin that is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). It is also noted that consideration should be made of unretouched color photographs when evaluating under these criteria. Further, the Board notes that evidence of a superficial and painful scar is required in order to achieve a 10 percent. 38 C.F.R. § 4.118, DCs 7803-04 (2007). Initially, the Board notes that the record reflects that the veteran has a 2 mm linear pale scar at the right lateral columella and a 1 mm round scar at the left lateral columella. See March 2004 VA ENT record. There is no other objective evidence of record regarding the scars on the veteran's nose. Indeed, the veteran's scars have not been noted to be unstable, and the scars were not painful on examination so as to merit a 10 percent evaluation under DCs 7803 or 7804. In light of the foregoing evidence, the Board finds that a compensable rating is not warranted under rating criteria for skin disabilities (of the head, face, or neck) under DC 7800 or any other applicable DCs for scars. However, the Board finds that veteran's nasal disability is analogous to "other obvious disfigurement" under DC 6504. In this regard, the Board notes that the evidence of record repeatedly reflects that the veteran's nose is deformed. See June 2003 VA examination report (noting upon physical examination that the veteran's nose is obviously deformed with septal deviation); March 2003 VA postoperative note (indicating caudal septum deflection to the left); April 2005 VA ENT record (noting a nasal septal deformity); May 2006 VA examination report (noting "[n]asal septum is deviated appears to the left"). The Board notes that the veteran is to be afforded every reasonable doubt. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this case, the Board has resolved all reasonable doubt in the veteran's favor. Accordingly, the Board finds that entitlement to a separate 10 percent rating is warranted for obvious disfigurement of the veteran's nose based on the evidence described above. Although the Board finds that a 10 percent rating is warranted for obvious disfigurement, the Board finds that the next-higher 30 percent rating is not warranted under DC 6504 because the objective evidence of record does not show scarring or loss of part of the nose that results in exposure of both nasal passages. Higher evaluations are also available under DCs 6510-6514, rating sinusitis. However, the Board finds that these other provisions upon which to assign a higher or separate rating are not applicable. See May 2006 VA examination report (indicating that the veteran denied incapacitating episodes of nasal discomfort or related symptoms in the last 12 months). The Board also notes that service connection has not been established for these conditions, it would not be appropriate to evaluate the nasal fracture on the basis of sinusitis or rhinitis. See 38 C.F.R. § 4.14 (2007) (noting that the use of manifestations not resulting from service- connected disease or injury in establishing the service connected evaluation is to be avoided). Additionally, the veteran does not contend, nor does the objective medical evidence of record support a finding of bacterial rhinitis (DC 6523) or granulomatous rhinitis (DC 6524). 38 C.F.R. § 4.97. Further, the Board has found no other schedular basis for assigning a separate or higher rating. In conclusion, the objective medical evidence does not show a 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side and the clinical evidence does not show distinct time periods exhibiting symptoms warranting staged evaluations. Hart, 21 Vet. App. at 509-10. The evidence does show that a separate 10 percent rating, but no more, is warranted for obvious disfigurement of the nose under DC 6504. The Board has applied the benefit of the doubt rule as warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Additionally, the evidence does not reflect that the veteran's nasal disability at issue caused has marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2007) is not warranted. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). B. Total temporary rating claim In a statement by the veteran, received by VA in May 2003, he requested a temporary 100 percent disability rating based on convalescence. The veteran indicated that he underwent an open septorhinoplasty with bilateral spreader grafts at the VA Medical Center in Ann Arbor, Michigan on March 21, 2003. The Board notes that the July 2003 rating decision on appeal considered entitlement to a total temporary rating because of treatment for a service-connected condition requiring convalescence. The Board also finds the July 2004 statement of the case to be adequate as it discussed the requirements for such a convalescence rating. In this regard, the Board notes that a total disability rating (100 percent) will be assigned if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a)(1), (2), (3). Extensions of one, two, or three months beyond the initial three months may be made under paragraph (a)(1), (2) or (3) of this section. 38 C.F.R. § 4.30(b)(1). Extensions of one or more months up to six months beyond the initial six months period may be made under paragraph (a)(2) or (3) of this section upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(1). In the present case, the record reflects that the veteran did indeed have the above surgery on the date he noted. See VA surgery report, dated March 21, 2003. A VA postoperative note, also dated March 21, 2003, indicates that there were no complications with the surgery. The postoperative record further indicates that the veteran's disposition was stable and it was noted that the veteran should follow-up with the ENT clinic in one week for splint removal. A VA postoperative discharge instruction record, dated in March 2003, noted that the veteran may return to work on March 30, 2003. Further, a letter from K.F., M.D., dated April 9, 2003, indicates that the veteran should be allowed to return to full duty effective as of April 14, 2003. Dr. K.F. advised the veteran to avoid any trauma to his nose and to follow-up in two months for a postoperative evaluation. Based on the foregoing, the Board finds that the veteran does not meet the criteria for a temporary total rating under 38 C.F.R. § 4.30 as the veteran's surgery for a service- connected disability did not necessitate at least one month of convalescence. See March 2003 VA postoperative discharge record; see also Letter from Dr. K.F., dated in April 2003. Accordingly, a temporary total evaluation under 38 C.F.R. § 4.30 is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a compensable disability rating for status postoperative submucous resection for nasal septal deviation, is denied. Entitlement to a separate rating of 10 percent for obvious disfigurement of the nose is granted, subject to the applicable law governing the award of monetary benefits. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 due to treatment for a service-connected disability requiring convalescence is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs