Citation Nr: 1104136 Decision Date: 02/01/11 Archive Date: 02/14/11 DOCKET NO. 06-31 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable evaluation for residuals of a fractured nose with a deviated nasal septum. ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1951 to February 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for residuals of a fractured nose with a nasal septum deviation, at which time the RO assigned a noncompensable evaluation, effective May 9, 2005-the date on which the Veteran filed his claim for service connection. The Veteran timely appealed that assigned disability evaluation. The Board notes that the Veteran initially requested a hearing before a Veterans Law Judge; such was scheduled for September 2010. However, in August 2010 the Veteran contacted the Board to cancel his scheduled hearing and did not wish to reschedule the hearing, but instead wished for the Board to make a decision on his case. The Board remanded the above issue for further development, to include a VA examination, in an October 2010 remand order. The case has been returned to the Board at this time for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's left nasal passage is obstructed 80 percent and the right nasal passage is not obstructed at all. 2. Hypertrophy of the turbinates which results in chronic allergic symptomatology and trouble breathing have also been associated as symptomatology arising from the Veteran's nasal fracture in service; such symptomatology includes several non- incapacitating episodes of purulent nasal discharge, headaches, and sinus pain and tenderness per year. CONCLUSION OF LAW Giving the benefit of the doubt to the Veteran, the criteria for a 10 percent evaluation for residuals of a fractured nose with a deviated nasal septum have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6502 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans' Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). That notwithstanding, the Board notes that following the grant of service connection, the Veteran was sent a June 2008 letter, which advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability. The letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability, and the effect that the disability has on his employment. The notice provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). The Board notes that that letter also provided information regarding the types of evidence considered when assigning a disability evaluation, along with the relevant rating criteria for the Veteran's increased evaluation claim on appeal. The Veteran's claim was last adjudicated in December 2010. Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. 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 claim. The Board notes that the Veteran underwent a VA examination in November 2010, and was further scheduled for an ENT specialist examination in December 2010. The Veteran called to cancel that specialist examination and stated he did not want to reschedule the examination at that time. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2010); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2010); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2010); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2010). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran filed his for service connection claim on May 9, 2005, and was assigned a noncompensable evaluation in the August 2005 rating decision. The Veteran has appealed that evaluation because he believes that his evaluation should be higher due to having trouble breathing, as well as his scarring and nose deformity which he stated was disfiguring. The Board notes that the Veteran was granted a separate 10 percent rating for his scarring and disfigurement of his nose in its prior October 2010 decision. Thus, this decision will not deal with any of that claimed symptomatology, as such has already been assessed and evaluated under that separate evaluation. See 38 C.F.R. § 4.14 (2010). The Veteran's nasal disability is currently assigned a noncompensable evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6502, for traumatic deviation of a nasal septum. Under that Diagnostic Code, a 10 percent rating is applicable for a 50 percent obstruction of the nasal passage on both sides or complete obstruction of one side. See 38 C.F.R. § 4.97, Diagnostic Code 6502 (2010). VA treatment records from throughout the appeal period do not demonstrate that the Veteran has ever sought any treatment for his residuals of his fractured nose, such as his trouble breathing. At no point during the appeal period has the Veteran reported trouble breathing, or in any other way complain of symptomatology, associated with his nasal disability for which he sought treatment. The Veteran underwent a VA examination for his nasal disability in October 2006. At that time, the Veteran reported that he had difficulty breathing through his nose and that he was forced to breathe through his mouth. The Veteran has not had any surgery on his nose. On examination, the Veteran's nose demonstrated a 1 cm. deep indentation on the nasal bridge bone with a gross displacement of the nose soft tissue to the right. His nasal turbinates were patent, with normal nasal mucosa but without nasal discharge. X-rays taken at that time demonstrated grossly intact nasal bones, with clear adjacent sinuses. There was no evidence of any bone fracture or destructive process, and the x- rays were noted as being unremarkable. The Veteran underwent another VA examination in June 2008. The Veteran reported at that time that he had not had surgery, nor does he have any medications or treat his nasal disability in any way. He indicated that he has trouble breathing out of the left side of his nose and that he has watery discharge from his nose in the morning and at night while in bed. He also indicated that he does not have dyspnea at rest, but does have it on exertion, particularly when ascending or descending stairs, which leads to mouth-breathing and dry mouth. The Veteran denied any sinus pain or headaches or any type of allergic attacks at that time. The VA examiner noted there were no periods of incapacitation reported. On examination, the Veteran was shown to have a septum deviation to the left with watery nasal discharge. There was also noted nasal obstruction secondary to a nasal polyp in the left turbinate, though the amount of obstruction was not noted. There was no nostril inflammation, rhinoscleroma, or sinus tenderness, crusting or purulent discharge. X-rays from that time demonstrated a mid-nasal bone fracture with 1.5 mm. inferior step-off of the distal aspect. There was no significant soft tissue swelling noted, but there was a left deviation of the nasal septum. The x-ray was noted as demonstrating a minimally displaced mid-nasal bone fracture. The VA examiner diagnosed the Veteran with residuals of a nasal bone fracture, left turbinate nasal polyp, and a left nasal septum deviation. Finally, the Veteran underwent a VA examination in November 2010. At that time, the Veteran indicated that he has been having sinus problems since his car accident in service which resulted in a deviated nasal septum. He stated that he gets headaches from his sinus problems, as well as difficulty breathing and a little pain in his nose at times. He stated that he uses an over-the-counter medicated nasal spray twice a day. The Veteran is noted as having a history of seasonal nasal allergies and a history of sinusitis with non-incapacitating episodes several times a year, which include symptomatology such as headache, purulent discharge and sinus pain and tenderness. The Veteran's allergic symptomatology included nasal congestion, excess nasal mucous, itchy nose, watery eyes, sneezing, purulent nasal discharge, headaches, and sinus pain and tenderness. There was no noted speech impairment and the Veteran was noted as having occasional breathing difficulty. On examination, the Veteran did not demonstrate any evidence of sinus disease or soft palate abnormality. The Veteran had left nasal obstruction of 80 percent and 0 percent right nasal obstruction. There were no nasal polyps noted at that time, and the VA examiner noted that there was a septal deviation as well as evidence of permanent hypertrophy of turbinates from bacterial rhinitis. There was no noted evidence of rhinoscleroma, granulomatosis or granulomatous infection, or a laryngectemy, and the Veteran's larynx, pharynx and nasopharynx were noted as being normal. The VA examiner stated that the Veteran's nasal septum was deviated to the left, with hypertrophy of the left turbinate that caused left nasal cavity small of about 80 percent blockage. X-rays from that time showed a mild left lateral nasal septum deviation, but normal alignment otherwise. The ossific structures appeared grossly intact and the sinuses appeared well- aerated. The VA examiner concluded that the Veteran had nasal obstruction of the left nasal passage with recurrent sinusitis attacks. He stated that he did not see any polyps on examination, but that he was not an "[Ear, Nose and Throat] ENT specialist." The Veteran was subsequently scheduled for an ENT specialist appointment in December 2010, which he cancelled and would not reschedule. On the basis of the foregoing evidence, the Board finds that the Veteran's nasal disability more closely approximates the criteria necessary for a 10 percent evaluation under Diagnostic Code 6502. Specifically, the Veteran's left nasal passage has shown to be obstructed throughout the appeal period. Such obstruction was noted as being 80 percent in the most recent examination. However, such does not demonstrate complete obstruction on one side or 50 percent on both sides. The Veteran's right nasal passage is shown to be unobstructed throughout the appeal period. That notwithstanding, the November 2010 VA examiner stated that the nasal symptomatology shown on examination included the nasal septum deviation and the hypertrophy of the turbinates associated with allergic symptoms. Giving the benefit of the doubt to the Veteran, the Board finds that such means that the Veteran's associated allergic symptomatology, including headaches, sinus pain and tenderness, and purulent discharge are also associated with the Veteran's nasal disability. Accordingly, the Board finds that such a disability picture of an 80 percent left nasal passage blockage with associated allergic symptomatology more closely approximates to a complete obstruction of one nasal passage commensurate with a 10 percent evaluation under Diagnostic Code 6502. See 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6502. The evidence does not demonstrate that the Veteran had rhinoscleroma at any time throughout the appeal period, and in fact, nearly meets the criteria for a compensable evaluation under Diagnostic Code 6523. Thus, a higher evaluation is not warranted under that Diagnostic Code. See 38 C.F.R. § 4.97, Diagnostic Code 6523. Moreover, the Board is cognizant that the Veteran's June 2008 VA examination demonstrated that he has a nasal polyp in the left passage. However, the October 2006 and November 2010 VA examinations did not note the presence of any nasal polyps. Moreover, the Veteran declined to see the scheduled ENT specialist in December 2010 in order to clarify the existence and extent of such symptomatology. At this time, while the Veteran may have nasal polyps, such nasal polyps have not been associated at any point in the record as being due to the Veteran's residuals of a fractured nose with a deviated nasal septum. Accordingly, a higher evaluation is not warranted under Diagnostic Code 6522. The Veteran has also not demonstrated that there is any impairment to his ability to speak (6515-19), that he has a problem with his larynx or pharynx (6520-21), or that he has been diagnosed with granulmatous rhinitis (6524) or sinusitis (6510- 14). See 38 C.F.R. § 4.97, Diagnostic Codes 6502-24. Thus, those Diagnostic Codes are inapplicable in this case. In summary, the Veteran's deviated nasal septum and permanent hypertrophy of the turbinates, resulting in allergic symptomatology, have been associated as residuals of the Veteran's nasal fracture in service. The disability picture produced by the combination of those symptoms more closely approximates to a complete obstruction of the Veteran's left nasal passage. Accordingly, a 10 percent evaluation is warranted for the Veteran's nasal disability, and to that extent, the Veteran's claim is granted. See 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6502. In reaching that conclusion, the benefit of the doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115- 116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra- schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected nasal disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's nasal disability. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. Finally, the Board has also considered whether a remand is necessary in order to determine whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In this case, the Veteran was granted TDIU in a June 2007 rating decision. Thus, the Board finds that a remand for such an opinion is not required in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial evaluation of 10 percent for residuals of a fractured nose with a deviated nasal septum is granted, subject to the regulations controlling the payment of monetary benefits. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs