Citation Nr: 1124240 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 08-10 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating for residuals of a fracture of the distal nasal bone with sinusitis, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified before the undersigned at a Travel Board hearing at the RO in September 2010. In November 2010, the Board remanded this case. 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 & Supp. 2010). FINDINGS OF FACT 1. The Veteran's service-connected residuals of a fracture of the distal nasal bone is characterized, at most, by a deviated septum is characterized causing 70 percent obstruction in the right nostril and 50 percent obstruction in the left nostril. 2. The Veteran's service-connected sinusitis is manifested by 4 to 6 symptomatic, but non-incapacitating episodes per year of sinusitis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for fracture of the distal nasal bone causing a deviated septum are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.7, 4.97 Diagnostic Code 6502 (2010). 2. The criteria for a separate 10 percent, but no higher, rating for sinusitis are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.7, 4.97 Diagnostic Code 6513 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in August 2006 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. As such, the August 2006 letter satisfied VA's duty to notify. As to the duty to assist, the RO has provided the Veteran with VA examinations in September 2006 and December 2010. The December 2010 VA examination report provided relevant findings as requested in the Board's November 2010 remand. There is no indication of any potentially relevant records that VA failed to obtained. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. However, as discussed below, in this case, the record reflects that the Veteran's disability has remained constant with respect to the applicable schedular criteria. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In a December 1950 rating decision, service connection was granted for a fracture of the distal tip of the nasal bone with slight interference with breathing. A noncompensable rating was assigned. In February 1951, the Veteran was granted service connection for sinusitis as part and parcel of his nose disability. His overall disability rating was increased to 10 percent under Diagnostic Code 6502, the rating code for deviated nasal septum. That rating was confirmed and continued by both the RO and the Board on multiple occasions, most recently by the Board in a January 2006 decision. In conjunction with the current claim for an increased, both private and VA medical evidence has been received. In February and May 2006, Richard S. Fraser, M.D., submitted letters in which he indicated that the Veteran had lost his sense of taste and smell as related to his service-connected nose disability. Service connection has since been established for those disabilities. The Veteran has been afforded two VA examinations. In September 2006, it was noted that he had chronic sinusitis and that he subjectively had episodes of sinus infections with pain and discharge. The Veteran reported that the week long episodes occurred once per year and were non-incapacitating. He indicated that he had headaches with the sinus attacks and antibiotic treatment had been needed. Sinusitis generally occurred constantly and was productive of purulent discharge. Examination of the nose revealed nasal obstruction that was 10 percent in the right nostril and 60 percent in the left nostril. The Veteran also had a deviated nasal septum on the left. Sinusitis was not shown on the examination. Nasal and sinus x-rays were within normal limits. The Veteran was again examined in December 2010. Physical examination revealed that the Veteran was breathing comfortably, without noisy breathing or stridor. There were scarred and thick tympanic membranes which were intact and without perforation. There was no sinus tenderness. There was severe right anterior nasal deviation with left inferior septal spur. The right nasal airway was obstructed by approximately 70 percent by septal deviation. The left nasal airway was obstructed by approximately 50 percent with septal deviation. The inferior turbinates were enlarged bilaterally. There were no visible nasal polyps or discharge from either side. There were no visible lesions in the oral cavity or oropharynx. The diagnoses were recurrent acute sinusitis, post-traumatic septal deviation, and severe hyposmia/ageusia. Regarding sinusitis, the Veteran reported that he had 4-6 episodes of sinusitis per year, mainly in the winter. Each episode lasted between three days and one week and required staying home during the infection. He had not been treated recently with antibiotics. He had not required any nose or sinus operations. A magnetic resonance imaging (MRI) did not show findings of chronic sinusitis and he therefore fit the diagnosis of recurrent acute sinusitis. Diagnostic Code 6502 provides a 10 percent rating for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. Thus, the Veteran is receiving the maximus rating under this code. However, the Veteran's service-connected disability also included sinusitis. Sinusitis is rated pursuant to Diagnostic Codes 6510-6514. These codes are rated based on a General Rating Formula for Sinusitis. Under that formula, a 10 percent rating is warranted for 1 or 2 incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires 3 or more incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or for near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula under 38 C.F.R. § 4.97 provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. At this juncture, the Board notes that the Veteran has 4 to 6 "non-incapacitating" episodes of sinusitis per year since his episodes of sinusitis have not required prolonged antibiotic treatment. His sinusitis has been characterized as being both chronic and recurrent. As noted above, the Veteran has been rated under Diagnostic Code 6502 for a deviated nasal septum. Given the findings of recurrent sinusitis and the Veteran's report of 4 to 6 non-incapacitating episodes of sinusitis per year, the Board finds that a separate 10 percent rating for the Veteran's sinusitis under Diagnostic Code 6513, for sinusitis, maxillary, chronic, is warranted. Separate, compensable ratings may be afforded for distinct disabilities resulting from the same injury as long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259 (1994). While Diagnostic Code 6502 contemplates a deviated nasal septum and nostril obstruction, the rating criteria pursuant to Diagnostic Code 6513 are based on the frequency of incapacitating and non-incapacitating episodes of sinusitis and the symptoms associated with those episodes, such as headaches, crusting, purulent discharge, and pain. Accordingly, the underlying symptomatology is not overlapping and the Veteran may be rated separately under each Diagnostic Code. See Esteban, 6 Vet. App. 259. For a 30 percent rating for sinusitis under Diagnostic Code 6513, there must be 3 or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or; more than 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The VA examination, which was conducted to specifically determine the number of sinusitis episodes, indicated that there were 4-6 sinusitis episodes which had not recently included antibiotic treatment. Thus, a rating in excess of 10 percent is not warranted for the Veteran's sinusitis under Diagnostic Code 6513. The Veteran reported even fewer episodes at the time of his VA examination in September 2006. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's nasal deviation under DC 6502, but the evidence supports a separate 10 percent rating for his sinusitis under DC 6513. The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the symptoms associated with the Veteran's septal deviation and sinusitis are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe these disabilities. The Veteran's symptoms include nasal blockage, headaches, drainage, and recurrent infections, which are contemplated by DCs 6502 and 6513. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER A rating in excess of 10 percent under Diagnostic Code 6502 for fracture of the distal nasal bone causing a deviated septum is denied. A separate 10 percent rating for sinusitis under Diagnostic Code 6513 is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs