Citation Nr: 1313583	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  06-13 999A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial compensable evaluation for residuals of a fractured nose with deviated nasal septum.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Army from July 1972 to August 1975, and from December 1990 to May 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Houston, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which in pertinent part denied service connection for cramps in the arms and legs, diabetes mellitus, and posttraumatic stress disorder (PTSD); and granted service connection for residuals of a fractured nose and a scar of the right upper lip, each rated 0 percent disabling.

In a September 2010 decision, the Board remanded the five pending appeals for a hearing before a Veterans Law Judge, to be held at the RO.  This Travel Board was presided over by the undersigned in February 2011; a transcript of the hearing is associated with the claims file.  At that hearing, the Veteran withdrew his appeals with regard to diabetes and cramps of the extremities.

Those claims were therefore dismissed in a July 2012 Board decision.  The Board also granted entitlement to an increased, 10 percent evaluation for a scar of the right upper lip.  Accordingly, no further question remains before the Board with respect to those issues, and they will not be further considered.  The appeals with regard to service connection of PTSD and evaluation of residuals of a fractured nose were remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development.

During the pendency of that remand, in a December 2012 rating decision, the AMC granted service connection for PTSD.  This was a full grant of the benefit sought on appeal, and hence there is no remaining question for consideration by the Board.  With regard to the evaluation of the nasal fracture residuals, all requested development has been accomplished, and the matter has returned to the Board for appellate adjudication.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence.


FINDINGS OF FACT

1.  The left nasal passage is, at most, obstructed by 80 percent.

2.  The right nasal passage in unobstructed.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation of residuals of a fractured nose with deviated nasal septum are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6502 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 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 (2011).  April 2004, May 2004, March 2005, July 2008and July 2012 letters satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning in the July 2008 correspondence.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a December 2012 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran's service treatment records and VA medical treatment records have been obtained.  The Veteran submitted a single page of treatment notes from a Dr. ESM, dated in June 2009.  He indicated at the February 2011 hearing that he would be submitting a release to permit VA to obtain all of the private doctor's records.  However, despite a July 2012 request from the AMC for that release, none has been provided, and no further development for those relevant treatment records is possible.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  

VA examinations were provided in April 2005, May 2009, and August 2012. The examiner made all required clinical findings for evaluation of the nasal fracture.  The examinations are adequate for adjudication.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Analysis

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58  (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, however.  This practice is known as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  

The Veteran sustained a broken nose in service, when assaulted in barracks. He has been service-connected for the residuals of that fracture, to include a deviated septum.  No other current residual has been identified.  Though the Veteran complains of a crooked nose, there is no supporting clinical evidence of such; the appearance of his nose seems unaffected by the fracture.

Accordingly, the service-connected disability is rated under Code 6502, for traumatic deviation of the septum.  A 10 percent evaluation is assigned when there is 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side.  No other evaluation for this disability is provided.  38 C.F.R. § 4.97.  However, where the Schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation is assigned when the listed requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The Veteran reports that he has problems breathing through his nose.  Regardless of the extent of any obstruction, he describes functional impact.  At the February 2012 hearing, he stated that if he pressed on and closed his right nostril, he could not breathe through his nose at all; he could breathe if he pressed on the left nostril.  The Veteran reported that Dr. ESM, who had treated him since 2008, wanted to perform surgery; as is noted above, the private records have not been submitted.

VA treatment records from July 2002 to September 2008 reveal no complaints or treatment related to the deviated septum or fractured nose.  The Veteran on occasion reported congestion or such was noted by doctors, but no clinical findings or observations indicate physical problems with the nose.  Several providers in fact note the nose to be normal on examination.

At the April 2005 VA examination, the veteran reported difficulty breathing, particularly through the left nostril, since his fracture.  An x-ray showed a mild right septal deviation.  No external deformity of the nose was seen.  Internally, the left nostril was 80 percent occluded.  There was no obstruction on the right. 

The May 2009 VA examiner noted no signs of nasal obstruction, though the traumatic septal deviation was seen.  The Veteran reported that he had difficulty breathing through the nose during the day.  Sleeping was not a problem.  The examiner commented that the deviated nasal septum was causing worsening problems.  The Veteran objected to this examination, stating at his hearing that the examiner had not actually looked in his nose.

The June 2009 treatment note from Dr. ESM indicates that the left nostril was obstructed with "a lot of congestion."  No structural blockage of deviation of the septum was referred to.  

A new VA examination was conducted in August 2012.  The Veteran reported that his sole problem involved difficulty breathing through the left side of the nose.  The examiner stated that there was less than 50 percent obstruction of the nostrils bilaterally, and neither side was blocked completely.  He specified that the left nostril was 75 percent occluded by the deviated septum.  

The criteria for evaluation of a deviated septum are very clear.  In the case of blockage of one nostril, the obstruction must be complete before a compensable evaluation is assigned.  The impacted left nostril here is less than totally blocked, and accordingly no compensable evaluation may be assigned.  The Board notes that for both single nostril obstructions and bilateral obstruction, compensable evaluations are assigned when at least half (100 percent of one or 50 percent each of two) of the breathing capacity is lost.  The maximum 80 percent blockage of a single nostril, noted in April 2005, does not rise to this level.

The May 2009 examiner did report worsening of disability, but this statement is unsupported by her clinical findings of no obstruction, which was an improvement from the prior examination, and the 75 percent blockage found on the most recent examination, which is highly consistent with 2005 findings.

Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321.  Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  Id. At 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  Id.

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

The criteria of Code 6502 fully account for the identified residuals of the Veteran's broken nose.  They assign evaluation based on the degree of occlusion from the deviation, and as such consider the percentage of impairment of the ability of the nose to deliver air.  The Veteran's complaints center on such functional impairment; as is discussed above, the demonstrated impact does not meet the level required for compensation.  His other complaint, of deformity of appearance, is not supported by the evidence of record.  Hence, the schedular criteria applied are fully adequate, and no further discussion of extraschedular evaluation is necessary.

The preponderance of the evidence is against the claim; there is no doubt to be resolved.  An initial compensable evaluation for residuals of a fractured nose with deviated nasal septum is not warranted.


ORDER

An initial compensable evaluation for residuals of a fractured nose with deviated nasal septum is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs