Citation Nr: 1037331 Decision Date: 10/01/10 Archive Date: 10/12/10 DOCKET NO. 06-37 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial compensable disability rating for residuals of an avulsion of the right nasi ala. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to May 1968. Service in the Republic of Vietnam and receipt of the Combat Infantryman Badge is indicated by the evidence of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Issue not on appeal The Board observes that the Veteran was granted service connection for residuals of a laceration of the right nostril in a September 2004 rating decision. The Veteran has not, to the Board's knowledge, expressed dissatisfaction with that decision. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDING OF FACT The Veteran's service-connected residuals of an avulsion of the right nasi ala results in nasal congestion which obstructs 75 percent of his nasal passage. CONCLUSION OF LAW The criteria for the assignment of a 10 percent disability rating for the Veteran's service-connected avulsion of the right nasi ala have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6502 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice 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); 38 C.F.R. § 3.159(b) (2009); 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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 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 an effective date for the award of benefits will be assigned if service connection is awarded. As the September 2005 rating decision granted the Veteran's claim of entitlement to service connection, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned in that determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (2009). Rather, the Veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. The Veteran was thus informed of what was needed to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher initial rating for the service- connected disability at issue. In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the record contains the Veteran's service treatment records, VA outpatient medical records and a VA examination report. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed 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 claim. As the Board will discuss in detail in its analysis below, the Veteran was provided with a VA examination in September 2006. The report of this examination reflects that the examiner recorded the Veteran's current complaints, conducted an appropriate physical examination and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record, and pertinent to the rating criteria. Supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the record does not reflect that the September 2006 examiner reviewed the Veteran's claims folder, the Veteran is not prejudiced thereby as the examiner considered medical history as reported by the Veteran which is consistent with that contained in the claims folder. The Board therefore concludes that the examination is adequate for rating purposes. See 38 C.F.R. § 4.2 (2009). 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 claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has declined to exercise his option of a personal hearing. Accordingly, the Board will proceed to a decision. Relevant law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 7913. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Diagnostic Code 6502 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue (deviation of the nasal septum) but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 6502. Specific rating criteria The pertinent provisions of 38 C.F.R. § 4.97, Diagnostic Code 6502 read as follows: 10 percent - traumatic only; with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. See 38 C.F.R. § 4.31 (2009). Analysis The Veteran's service-connected residuals of an avulsion of the right nasi ala are currently evaluated as zero percent disabling. To qualify for a 10 percent disability rating under Diagnostic Code 6502, the evidence of record would have to show a "50 percent obstruction of the nasal passage on both sides or complete obstruction on one side." After examining the Veteran, the September 2006 VA examiner stated that the Veteran had a "mild deviation of the nasal septum on both sides, but with no significant obstruction from the deviation." It was noted that the Veteran's nasal congestion produces most of his nasal obstruction. The examiner therefore opined that it is "at least as likely as not that the majority of [the Veteran's] nasal obstruction results from his nasal congestion." In January 2007, the Veteran submitted the medical opinion of B.R., M.D. who indicated that he reviewed the reviewed the September 2006 VA examination report, examined the Veteran, and found that the sinus congestion the Veteran is experiencing is due to the obstruction resulting from his deviated nasal septum. Dr. B.R. found that 75 percent of the Veteran's nasal passage is obstructed as a result of his deviated nasal septum. Upon review, both the September 2006 and January 2007 medical opinions indicate that the Veteran's nasal passage is obstructed due to his nasal congestion. The January 2007 opinion from Dr. B.R. indicates that this congestion is a result of the Veteran's deviated nasal septum. Since the evidence of record demonstrates that 75 percent of the Veteran's nasal passage is obstructed due to his deviated nasal septum, the criteria for a 10 percent disability rating have been met. The Board notes that in Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In this case, the medical evidence of record indicates that the Veteran's deviated nasal septum has remained constant throughout the appeal period. The September 2006 and January 2007 medical opinions describe similar respiratory symptomatology and indicate that the Veteran's nasal passages have been obstructed due to congestion. Accordingly, the 10 percent rating which the Board is assigning is effective from May 31, 2005, the date of service connection. Extraschedular considerations Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. The RO included 38 C.F.R. § 3.321(b)(1) in the October 2006 Statement of the Case (SOC) and appears to have considered the regulation in the Veteran's case. Accordingly, the Board will address the possibility of the assignment of an extraschedular rating for the increased disability rating at issue. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2009). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected deviated nasal septum. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Nevertheless, the Board will briefly note that the evidence in this case does not demonstrate any of the factors provided in the "governing norms" such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1). In this case, there is no indication that the Veteran has required frequent hospitalizations for his deviated nasal septum. With respect to employment, the evidence of record indicates that the Veteran has been working as a clerk for the same company for nearly four decades. See the May 2005 VA examination. In this case, there is no indication that the Veteran's deviated nasal septum has caused him to miss work or creates any unusual employment impairment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In addition, there is no evidence in the medical records of an exceptional or unusual clinical picture, or of any other reason why an extraschedular rating should be assigned. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An initial disability rating of 10 percent is granted for residuals of an avulsion of the right nasi ala, subject to governing regulations concerning the payment of monetary benefits. ____________________________________________ J. K. BARONE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs