Citation Nr: 1311059 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 94-28 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a higher initial disability rating for the residuals of septorhinoplasty with vasomotor rhinitis (nasal disability), rated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from May 1971 to August 1991, including service in the Southwest Asia Theater of Operations from December 31, 1990, to May 1, 1991, and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1992 decision of the Philadelphia, Pennsylvania, Regional Office (RO). A February 2009 Board decision denied an initial rating in excess of 10 percent for the nasal disability and the Veteran appealed the determination to the U.S. Court of Appeals for Veterans Claims (Court). The Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating and remanding this Board decision, in a November 2009 Order. The Board remanded the appeal in September 2010 and June 2012. The Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed at the Board, in March 1998, and exercised his right to provide testimony before the undersigned VLJ deciding his claim, in July 2012. Transcripts of both hearings are of record. In an October 1992 statement, the Veteran raised a claim seeking (A) service connection for a dental disability, for compensation and treatment purposes. Also, at the July 2012 Board hearing he raised (B) a claim to reopen a service connection for chronic diarrhea, including as a qualifying chronic disability under 38 C.F.R. § 3.317; and service connection claims for (C) sleep apnea, (D) the residuals of meningitis, (E) an eye disability other than refractive error, including as a qualifying chronic disability under 38 C.F.R. § 3.317, and (F) depression (to be characterized as an acquired psychiatric disorder). The Agency of Original Jurisdiction (AOJ) has not adjudicated these claims and the Board does not have jurisdiction over the claims. Therefore, the Board refers these claims to the AOJ for appropriate action. FINDING OF FACT During the entire period under review, the nasal disability has at most manifested in slight symptoms and has not resulted in marked interference with breathing space or more than approximately 50 percent obstruction of either nasal passage. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran's residuals of septorhinoplasty with vasomotor rhinitis disability are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, Diagnostic Codes 6501 (1996), 6502 (1996 & 2012), 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to assist and notify 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 Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, however, the Veteran's claim sought service connection, which was granted, and he now appeals the initially assigned rating. Since his initiating claim was granted, no further notice under the VCAA is necessary. The Board also finds that all necessary development of evidence has been completed. The Veteran's service and post-service treatment records have been obtained. The Veteran has been provided adequate VA examinations and offered Board testimony. Prior Board remand instructions have also been sufficiently completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the Veteran has not indicated, nor does the record reasonably identify, any additional relevant evidence VA should seek to obtain on his behalf. VA has made all reasonable efforts to assist the Veteran with substantiating his claim. No additional assistance with the development of the appeal is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing to (I) fully explain the issues and (II) suggest the submission of evidence that may have been overlooked. The transcript of the July 2012 Board hearing confirms that the VLJ posed relevant questions, discussed the evidence of record, sought to identify pertinent evidence that was not of record, and informed the Veteran and his representative of the issue on appeal, which sufficiently identified the basis of the prior determinations and the elements of the claim that were lacking. The Veteran and his representative also demonstrated actual knowledge of the elements and evidence necessary to substantiate the claim, as evident in the provided testimony, oral presentation and the questions posed that focused on these matters. The Veteran provided testimony addressing why he felt an increased rating is warranted for his nasal disability and he also noted treatment he had received. Moreover, neither the Veteran nor his representative have asserted VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. The VLJ complied with the Bryant duties and the claim can be properly adjudicated. Increased Rating In April 1992, the RO granted service connection for the nasal disability, assigning a 10 percent rating, effective September 1, 1991 (the date following the Veteran's separation from service), pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6599-6502. While in appellate status, a February 2012 decision continued the 10 percent rating, pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6502-6522. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991). Here, the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The Board must consider the application of staged ratings. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See 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 current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During the pendency of the appeal, VA revised the Diagnostic Codes applicable to the nasal disability, effective October 7, 1996, and both the old and new rating criteria must be considered; however, the new rating criteria are only applicable since their effective date. VAOPGCPREC 3-2000; see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Diagnostic Codes, effective prior to October 7, 1996 Diagnostic Code 6501 (currently Diagnostic Code 6522) provides a 10 percent rating for definite atrophy of intranasal structure and moderate secretion. A 30 percent rating is warranted for moderate crusting and ozena, atrophic changes. The maximum 50-percent rating is warranted for massive crusting and marked ozena, with anemia. See 58 Fed. Reg. 4962-01, 4963-64 (Jan. 19, 1993) (explaining the basis for renumbering and revising the criteria for rhinitis). 38 C.F.R. § 4.97, Diagnostic Code 6501 (1996). Diagnostic Code 6502 provides that a noncompensable rating is warranted where slight symptoms are present. The maximum schedular rating of 10 percent is warranted where there is marked interference with breathing space. 38 C.F.R. § 4.97, Diagnostic Code 6502 (1996). Diagnostic Codes, effective since October 7, 1996 The only schedular rating provided for under Diagnostic Code 6502 is a 10 percent rating, which is warranted when there is 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 (2012). Diagnostic Code 6522 (previously Diagnostic Code 6501) provides a 10 percent rating when there is greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side and no polyps. The maximum schedular rating of 30 percent is warranted when polyps are present. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). Background By history, the Veteran underwent status post nasoseptal surgery times two in 1972, and again in 1984. In November 1991, he continued to experience right nasal obstruction, epistaxis or rhinorrhea or post nasal drip. In November 1991, the impression was nasal septal deformity, turbinate hypertrophy. A septorhinoplasty and inferior turbinectomy was accomplished. At his November 1991 VA examination, the Veteran reported nasal symptomatology, including difficulty breathing through his nose and a physical examination revealed nasal cartilage damage of such a nature that a septorhinoplasty was recommended. The Veteran regularly sought treatment for his nasal disability. VA examination conducted in September 1993 revealed a diagnosis of allergic rhinosinusitis. A November 1993 VA treatment record indicates his nose was clear and without any legion or mass. The Veteran used a nasal spray to manage the symptoms. In February 1994, the Veteran reported a one month history of cold symptoms and nasal congestion. The VA medical professional noted that the Veteran's nasal passage was clear and recommended continued decongestive medications. Similar findings were noted during a February 1995, June 2002, and July 2002 VA treatments. During a June 2003 VA examination, breathing impairment, episodes of purulent discharge, a constant runny nose, year-round allergy attacks, postnasal drip, nasal congestion and episodic speech impairment/hoarseness were reported by the Veteran. The examination confirmed the presence of clear drainage throughout all mucosa but was characterized as "essentially normal" because the nostrils were bilaterally patent at 100 percent and absent of legions, ulcers, atrophy, nasal polyps, adenoids, green/yellow discharge, crusting, dried blood or epistaxis. The assessment was status post surgeries with essentially normal examination today. The April 2007 VA examination report details the Veteran's endorsement of daily purulent discharge, breathing impairment, postnasal drip with nasal congestion. The Veteran denied experiencing symptoms of dyspnea, speech impairment, disease/injury of the soft palate, nasal regurgitation, chronic sinusitis or allergy attacks. Clinical examination revealed no evidence of sinus tenderness, purulent discharge, nasal crusting, nasal polyps or bacterial rhinitis. The percent of bilateral nasal obstruction was approximately 20-to-30 percent. At the January 2011 VA examination, the Veteran endorsed postnasal drip with some associated sleep impairment, runny nose, watering of the eyes, "some rare nasal bleeding," congestion, headaches and pain of the maxillary sinuses and upper teeth, but denied nasal congestion, crusting, incapacitating episodes or usage of antibiotic treatment. On examination, there was no evidence of polyps, lesions, purulence, drainage or sinus tenderness, but the examiner observed bilateral nasal mucosa in the erythematous and bilateral mildly hypertrophied inferior tubinates. In a November 2011 supplemental statement, the examiner expressly indicated that, on examination, the Veteran's "nasal passages were patent bilaterally with no obstruction." Merits Based on the evidence of record, medical and lay, at no time during the pendency of the appeal has the Veteran's symptoms more nearly approximated the criteria required for a disability evaluation in excess of 10 percent. The Veteran provides a competent and credible account of nasal manifestations, including postnasal drip, congestion, runny nose and allergy-related symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The November 1991 VA examination report corroborates his account of experiencing some difficulty breathing; however, the evidence of does not support a finding of obstruction of either nasal passage greater than approximately 30 percent, marked interference with breathing space or atrophy of the intranasal structure. Additionally, consistent other evidence of record, the November 1993 and February 1994 VA treatment records and VA examination reports, dated in November 1993, June 2003, April 2007and January 2011, sufficiently establish that the nasal disability has not manifested in polyps or crusting. Accordingly, the nasal disability at most manifests in slight symptoms, and fails to support the assignment of a compensable rating. See Diagnostic Codes 6501 (2006), 6502, 6522. Additionally, a September 2008 rating action denied service connection for sinusitis and the Veteran did not perfect an appeal therefrom, nor was new and material evidence received within one-year of the determination. As such, that rating determination is final, making application of the General Formula for Sinusitis on this basis improper. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In any event, the probative and persuasive evidence of record fails to support a finding that the nasal disability manifests in incapacitating episodes, purulent discharge or crusting. Nor are the relevant symptoms, including pain, discharge and headaches, of the nature, extent and severity as to most closely approximate more than mild or moderate symptoms. See Diagnostic Codes 6510 to 6514 (2006 & 2012). Additionally, there is no evidence of (A) exposure of both nasal passages; (B) loss of part of one ala or other obvious disfigurement; (C) a diagnosis of laryngitis, (D) tuberculosis, a total laryngectomy, aphonia, stenosis of the larynx, including residuals of laryngeal trauma; (D) an injury to the pharynx; (E) bacterial rhinitis; or granulomatous rhinitis. Thus Diagnostic Codes 6504, 6515, 6516, 6518, 6517 (2006), 6518 (2006), 6519, 6520, 6521, 6523 and 6524, are not applicable. In sum, the preponderance of the evidence fails to establish the criteria for a disability evaluation in excess of 10 percent for the service-connected nasal disability, and the appeal is denied. Extraschedular and other considerations Additionally, the Board has considered whether the Veteran's nasal disability warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 (2011). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. The Board finds that the rating criteria and presently assigned disability evaluation accurately contemplate the nature, extent and severity of the Veteran's nasal disability manifestation, including headaches, congestion and pain. There is evidence that nasal disability may also manifests in functional and occupational impairment; however, the Board finds that based on the evidence of record, medical and lay, the symptomatology associated with the Veteran's disability is contemplated by the 10 percent rating presently assigned and the relevant rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. Additionally, the evidence consistently documents the Veteran's report of being employed and the evidence of record does not reasonably suggest at any time during the period under review he has been unemployed. Thus, consideration of the assignment of a total disability evaluation, based on individual unemployability, due to service-connected disabilities is not appropriate at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). (CONTINUED ON THE NEXT PAGE) ORDER An initial rating in excess of 10 percent for a nasal disability is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs