Citation Nr: 1301499 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-30 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of a septectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In that decision, the RO granted the Veteran's service connection claim for a deviated septum, and assigned a noncompensable rating effective May 23, 2008. In February 2012, the RO issued a decision wherein the Veteran's evaluation was raised from 0 to 10 percent, also effective May 23, 2008; however, the Veteran has continued his appeal for a higher rating. See AB v. Brown, 6 Vet. App. 35 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). This matter was previously remanded by the Board for additional development, in January 2012 and May 2012. The Veteran testified at a Travel Board hearing chaired by the undersigned Veterans Law Judge at the Providence RO in May 2012. A transcript of the hearing has been associated with the Veteran's VA claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's chronic rhinitis is not accompanied by nasal polyps. 2. The residual scar associated with the Veteran's septectomy is not disfiguring, nor is it associated with tissue loss and distortion or asymmetry of his facial features, nor is it unstable or painful. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the residuals of a septectomy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Codes 6502-6522 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7803, 7804, 7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that 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. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is needed to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A service connection claim consists of five elements: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). Compliance with the first Quartuccio element requires notice of these five elements. See Dingess/Hartman, 19 Vet. App. at 486. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, notice under section 5103(a) is no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. Thus, because service connection for the residuals of a septectomy was granted, VA's notice obligations with respect to the issue of entitlement to higher initial evaluation for this disability is fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). In any event, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by letter mailed June 16, 2008. VA also has a duty to assist the claimant in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining his service treatment records (STRs) and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. In this case, the Veteran's STRs and some of his post-service medical records have been obtained and associated with the file. The Veteran was given the opportunity to supplement the evidence of record with additional private treatment records in June 2008, July 2010, and June 2012. He did not complete authorization forms allowing the RO to obtain any private treatment records, nor did he submit additional records himself. The Board notes that the evidence of record indicates he sees a private physician for his nasal conditions, but those records were not received, therefore this issue will be decided on what has been made available. See Woods v. Gober, 14 Vet. App. 214 (2000) (the duty to assist in substantiating the claim is not a one-way street); see also Hurd v. West, 13 Vet. App. 449 (2000) (the Veteran cannot passively wait for help from VA). The Veteran has also been afforded two VA examinations that assessed the severity of the residuals of his septectomy, in February 2011 and July 2012, respectively. The Board finds that these examination reports are adequate to adjudicate the Veteran's appeal for a higher initial disability rating on the merits. Indeed, both examination reports reflect that the examiner was made aware of the Veteran's relevant past medical history, recorded his current complaints, conducted appropriate examinations, and rendered opinions consistent with the evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to development of the claim has been met. 38 C.F.R. § 3.159(c)(4) (2011); Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, the Board finds that there has been substantial compliance with its January and May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board directed the RO to obtain updated VA medical center (VAMC) treatment reports, attempt to obtain private treatment records, and schedule a VA examination. The RO has completed this necessary development. Accordingly, the Board will address the claim on the merits. Increased rating Disability ratings are assigned in accordance with 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 (2012). Separate diagnostic codes (DCs) identify the various disabilities. See 38 C.F.R. Part 4 (2012). If two disability evaluations are potentially applicable, 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 (2012). Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2011). Pyramiding, the evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14 (2012). 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, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's service connected residuals of a septectomy is currently rated as 10 percent disabling under DC 6502-6522. See 38 C.F.R. § 4.97 (2012). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Here, DC 6502 represents the Veteran's deviated septum, and DC 6522 represents the Veteran's rhinitis, which was found to be a residual of the septectomy. See 38 C.F.R. § 4.97; see also Statement of the Case dated February 6, 2012. Under DC 6502, a 10 percent disability rating is assigned for a traumatic deviated nasal septum, with accompanying 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. Under DC 6522, a 10 percent disability rating is assigned to allergic or vasomotor rhinitis when accompanied by a greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, without nasal polyps. A 30 percent disability rating is assigned when the allergic or vasomotor rhinitis is accompanied by nasal polyps. Id. VA treatment records show the Veteran complaining of a constant running nose. See VA treatment record dated August 6, 2009. A letter from the Veteran's private physician, Dr. J.M.T., indicates the Veteran has nasal obstruction and septal deviation with difficulty breathing through the nose, which is exacerbated by underlying allergies. See Dr. J.M.T. letter dated May 28, 2010. The Veteran underwent two VA examinations regarding his deviated nasal septum and the residuals of his septectomy. At the February 2011 examination, the Veteran's rhinitis symptoms were congestion, excess mucous, and watery eyes. Occasional difficulty breathing and crusting of the nose were also noted. The Veteran's left nasal passage was obstructed by 50-percent, and the right nasal passage was obstructed by 20-percent. He did not have any nasal polyps or rhinoscleroma. He did have permanent hypertrophy of the nasal turbinates, and his nasal septum was still deviated. He was noted to have a prominent nasal bump and a perforation of the anterior septum that is approximately 1 centimeter. See VA examination dated February 4, 2011. The examiner noted the Veteran receives treatment from a private physician regarding his rhinitis and deviated nasal septum, and sees him every six months. However, the Veteran did not authorize the RO to obtain any private treatment records, and he has not submitted them himself. At the July 2012 VA examination, the Veteran was diagnosed with non-allergic rhinitis, a deviated nasal septum, and post-nasal drip. In responding to the disability benefits questionnaire (DBQ) regarding rhinitis, the examiner answered that the Veteran's nasal passages were not obstructed by more than 50-percent on both sides, nor was one side totally blocked. He did not have permanent hypertrophy of the nasal turbinates, nasal polyps, or a granulatomous condition. In regard to the deviated nasal septum, it was not obstructing both nasal passages by more than 50-percent, nor was it obstructing either passage completely. The examiner noted the Veteran does have a scar associated with his septectomy, however, it was neither unstable nor painful, and its surface area was less than 39 square centimeters. These findings obviated the need for a specific scar examination. The Veteran was noted to have a flattened and crooked nasal dorsum. See VA examination dated July 19, 2012. The Veteran has testified that his nose runs all the time, to the extent that he goes through a box of tissues everyday. See id. He said he is embarrassed to be constantly sniffling. See Hearing dated May 21, 2010, page 9. He cannot always breathe through his nose, and his doctor has been unable to relieve the problem. See Hearing dated May 4, 2012, pages 4-5. Based on the evidence set forth above, the Veteran's disability picture more closely approximates that of a 10 percent disability rating. Under DC 6502, the highest rating that can be assigned is 10 percent. Under DC 6522, a rating of 30 percent requires polyps, which the Veteran does not have. The Board notes that the factors enumerated in DCs 6502 and 6522 for a 10 percent disability rating overlap with one another, in that they both require 50-percent or more obstruction of both nasal passages or total obstruction of one nasal passage. The Veteran does have some obstruction, and it provides the support for the assignment of a 10 percent disability rating under the combined DC 6502-6522. Simultaneous compensation for obstructed nasal passages due to a deviated nasal septum and to rhinitis amounts to pyramiding, that is, duplicate compensation for identical symptoms, which is prohibited. See 38 C.F.R. § 4.14 (2012). The Board has considered application of DC 6504 (Nose, loss of part of, or scars), because the Veteran does have a scar associated with his septectomy. Under DC 6504, a 10 percent rating is assigned when part of one ala is missing, or when there is some other obvious disfigurement. A 30 percent rating is assigned when both nasal passages are exposed. 38 C.F.R. § 4.97 (2012). There is no evidence to show that either ala is incomplete, or that the Veteran is disfigured, or that either nasal passage is exposed. The Board has also considered application of the ratings that pertain to scars under 38 C.F.R. § 4.118. In 2008, VA revised, or rather clarified, its regulations for rating scars. See Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54708 (2008) (codified as revised at 38 C.F.R. § 4.118, DCs 7801 - 7805). However, those revisions are applicable only for claims for benefits received by VA on or after October 23, 2008. Because the Veteran's claim was received prior to October 23, 2008, those revisions are not applicable to the current appeal and, instead, the regulations in effect at the time of filing will be discussed. Under DC 7800 (Disfigurement of the head, face, or neck), a 10 percent rating is assigned when one characteristic of disfigurement is present. A 30 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or, with two or three characteristics of disfigurement. A 50 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features; or, with four or five characteristics of disfigurement. An 80 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features; or, with six or more characteristics of disfigurement. 38 C.F.R. § 4.118 (2008). The eight characteristics of disfigurement include: (1) Scar 5 or more inches (13 or more centimeters) in length; (2) Scar at least one-quarter inch (0.6 centimeter) wide at its widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo or hyperpigmented in an area exceeding six square inches (39 square centimeters); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) Underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and, (8) Skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Id. Here, the February 2011 VA examiner noted the Veteran has a flattened and crooked nasal dorsum, a prominent nasal bump, and a perforation of the nasal septum that is approximately 1 centimeter long, and the July 2012 VA examiner indicated the Veteran's scar is not painful, not unstable, and not more than 39 square centimeters. None of these findings correspond to any of the disfigurement characteristics under 38 C.F.R. § 4.118. DCs 7803 (Scars, superficial, unstable) and 7804 (Scars, superficial, painful on examination) each provide for a 10 percent rating to be assigned for those particular types of scars. Here, the Veteran's scar has never been noted to be painful or unstable. DC 7805 requires a rating to be assigned based on the limitation of function of the affected part. There is no indication from the evidence of record that the scar affects the functioning of the Veteran's nose differently than the deviated septum and rhinitis, for which the Veteran is already compensated. Thus, the Veteran is not able to reach a higher evaluation under the scars ratings. With regard to staged ratings, the evidence shows the Veteran's symptoms have been consistent, and a rating in excess of 10 percent is not warranted at any time. Extraschedular consideration The Board has considered whether the claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012). Because the ratings under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual claimant's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). In exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration, id., as the Board is precluded by regulation from assigning extraschedular ratings in the first instance. 38 C.F.R. § 3.321(b)(1) (2012). The governing norm in these cases is a finding that the disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then the third step requires the case to be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services to determine whether the disability requires the assignment of an extraschedular rating. Id. The Board finds that referral for extraschedular consideration is not warranted in this case. The Veteran's reported symptoms (i.e., difficulty breathing through his nose, obstruction of the nasal passages, runny nose) are contemplated by the rating criteria, as discussed above. Thus, there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. The evidence does not demonstrate that the Veteran's disability presents "such an exceptional or unusual disability picture...as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2012). The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extraschedular consideration. See VAOPGCPREC 6-96. Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria. See id. The Board finds that the available schedular evaluations are adequate to rate this disability, and therefore referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 115 (2008). Rice consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record reflects that the Veteran retired in the 1970's due to heart problems, and the Veteran has not alleged that he cannot work because of the residuals of his septectomy. Accordingly, the Board concludes that a claim for TDIU has not been raised by either the Veteran or the record. ORDER Entitlement to an initial evaluation in excess of 10 percent for the residuals of a septectomy is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs