Citation Nr: 1313864	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  10-10 835	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an initial, compensable evaluation for nasal deviation of the septum, from July 8, 2011.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

The Veteran served on active duty from July 1962 to June 1965.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) that granted service connection and a noncompensable rating for nasal deviation of the septum, effective March 6, 2003.  In a September 2012 decision, the Board denied entitlement to an initial, compensable evaluation for nasal deviation of the septum prior to July 8, 2011, and remanded entitlement to an initial, compensable evaluation for nasal deviation of the septum from July 8, 2011.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 


FINDING OF FACT

For the period beginning July 8, 2011, the evidence of record does not show that the Veteran's nasal deviation of the septum is manifested by a 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side.


CONCLUSION OF LAW

For the period beginning July 8, 2011, the criteria for a compensable rating for a nasal septum deviation disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.31, 4.97, Diagnostic Code 6502 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA) 

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

Regarding the matter at hand, the appeal is from the initial rating assigned with awards of service connection.  The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated.  See Dingess/Hartman, 19 Vet. App. 473, 490-91 (2006).  The Veteran is exercising his right to appeal the ratings assigned.  A February 2010 statement of the case properly provided the Veteran with notice of the criteria for rating deviated nasal septum, and further notice on the downstream issue of an increased initial rating, including of what the evidence showed, and why the current rating was assigned.  The Veteran has had opportunity to respond.  He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency. 

Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records (including VA and private) has been completed.  The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim.  The Board is also unaware of any such records.  Moreover, the Veteran has been afforded an appropriate and adequate VA examination in 2012.  Given that the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient.  Therefore, the Board concludes that VA has complied with its duty to assist the Veteran. 

Increased Rating - Law and Regulations 

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

At the time of an initial rating, 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).  

For the period at issue, the Veteran's deviated septum is rated as noncompensable under 38 C.F.R. § 4.97, Diagnostic Code 6502.  Pursuant to Diagnostic Code 6502, a traumatic deviation of the nasal septum warrants a maximum disability rating of 10 percent where there is 50-percent obstruction of the nasal passage on both sides, or complete obstruction on one side.

In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

The Board notes that it has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Factual Background and Analysis

Historically, the Veteran was awarded service connection for nasal deviation of the septum, effective March 6, 2003.  A February 2006 CT scan showed, in pertinent part, a mild deviation of the septum to the left.  A September 2008 VA examination revealed a palpable, non-tender bony defect, about five millimeters in length, in the left intraorbital rim near the nose.  There was a 20 percent nasal obstruction, bilaterally, with no nasal polyps or septal deviation.

A September 2012 Board decision denied entitlement to an initial, compensable evaluation for nasal deviation of the septum prior to July 8, 2011.  Remaining on appeal is the issue of entitlement to an initial, compensable evaluation for nasal deviation of the septum from July 8, 2011. 

VA outpatient treatment records for the period from July 2011 to August 2012 note no complaints or findings related to nasal deviation of the septum.

A December 2012 VA examination report notes the Veteran's complaints of an inability to "breathe decently" through his nose.  After reviewing the claims files and examining the Veteran, the examiner noted that the Veteran did not have at least 50 percent obstruction of the nasal passage on both sides, or complete obstruction of the nasal passage on one side, due to traumatic septal deviation.  He stated that his examination did not reveal evidence of significant septal deviation.  Moreover, a March 2009 CT scan showed that the septum was midline.  The diagnosis was nasal septum deviation, repaired.  The examiner noted that while the Veteran has significant nasal obstruction, it is due to nonservice-connected rhinitis and not nasal septum deviation.

Having reviewed the foregoing, the Board finds no basis to assign a compensable rating for the Veteran's nasal disability under Diagnostic Code 6502 for the period beginning July 8, 2011.  The medical evidence of record simply does not show that the Veteran currently has a bilateral, 50 percent blockage of the septum, or a complete blockage on either side.  Instead, the2012 VA examination of record indicated no significant blockage due to a deviated septum, and specifically no bilateral, 50 percent blockage of the septum, or complete blockage on either side.  

In so determining, the Board has also considered whether a compensable rating is warranted for any other diagnostic code relevant to diseases of the nose.  Here, the medical evidence does not show that the Veteran's disability is manifested by a loss of any part of his nose or other obvious disfigurement to warrant a compensable rating under Diagnostic Code 6504 (Nose, loss of part of, or scars).  While rhinitis and sinusitis were noted on VA examination and in VA outpatient treatment records for the period at issue, these disabilities have not been related to the Veteran's service-connected deviated nasal septum, but rather to environmental exposures, infection, or other unknown etiology.  See September 2008 and December 2012 VA examination reports.  As such, Diagnostic Codes 6510 to 6514, which pertain to sinusitis, as well as 6522, which pertains to vasomotor rhinitis, are not for application in this instance.  See 38 C.F.R. 38 C .F.R. § 4.97, Diagnostic Codes 6510-6514, 6522. 

The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).  The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

In this case, the manifestations of the Veteran's service-connected nasal deviation of the septum are contemplated by the schedular criteria.  As discussed, the Veteran's symptoms due to the nasal deviation of the septum are contemplated by the rating schedule, and the assigned schedular evaluation is adequate.  The rating criteria provide for a higher rating for additional or more severe symptoms than currently shown by the evidence.  Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extra-schedular consideration is not warranted. 

As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert, supra.


ORDER

Entitlement to an initial, compensable evaluation for nasal deviation of the septum beginning July 8, 2011, is denied.



____________________________________________
JONATHAN KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs