Citation Nr: 1317094 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-14 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable disability rating for service-connected residuals of a fractured nose. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a Travel Board hearing in March 2013 before the undersigned Veteran's Law Judge. A copy of the transcript is associated with the Veteran's electronic records in Virtual VA. The Board notes that the Veteran submitted additional evidence to the Board after his hearing. The Veteran submitted a copy of a VA outpatient entry for a clinical visit that occurred in March 2013 after his hearing. The evidence was received at the Board in April 2013. The Veteran did not submit a waiver of consideration of the evidence by the agency of original jurisdiction (AOJ). However, the evidence, although new, is cumulative of other evidence of record in recording symptoms essentially unchanged from prior outpatient entries. There is no basis to return the evidence to the AOJ for consideration. Moreover, as the Board is granting the maximum schedular rating for the Veteran's disability, there is no prejudice in this instance to the Veteran. FINDING OF FACT The Veteran's nasal fracture residuals have been objectively shown to be manifested by a deviated septum with a 90 percent obstruction of the right nasal passage and 10 percent obstruction of the left nasal passage in October 2009 and a 60 percent obstruction of the right nasal passage and a 40 percent obstruction of the left nasal passage in June 2010. CONCLUSION OF LAW The criteria for an initial 10 percent rating for residuals of a fractured nose, for the entire period of the appeal, have been approximated. 38 U.S.C.A. §§ 1155; 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7-4.14, 4.97, Diagnostic Code 6502 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (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), provides 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. The Veteran submitted his claim for service connection in August 2009. He was provided with notice on how to substantiate his claim in September 2009. He was granted service connection by way of a rating decision dated in October 2009. Thus his claim for service connection was substantiated at that time. VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court), has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). As stated, the Veteran's claim for service connection for residuals of a fractured nose was granted and an effective date and disability rating was assigned in the rating decision on appeal. As such, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. The Veteran's service treatment records (STRs) were obtained. The Veteran submitted additional VA and private medical records in support of his claim. Private and VA treatment records were obtained. The Veteran was afforded a VA examination. He testified at a Travel Board hearing in support of his claim. In regard to the VA examination, the Board finds that the Veteran was provided with an adequate examination in October 2009. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The examiner provided applicable findings that were used to evaluate the Veteran's level of disability for his service-connected residuals of a fractured nose, especially the level of obstruction in each nasal passage. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the issue on appeal and the basis for a compensable rating were discussed. The Veteran's representative cited the specific diagnostic code and criteria used to evaluate the disability. The Veteran provided testimony of how his symptoms and why he felt they warranted a compensable rating. The Board finds that the Veteran did have the issue explained to him at his hearing and the evidence needed to support his claim. See Bryant, 23 Vet. App. at 497 The Board further finds that VA has satisfied its duty to notify and assist. The Veteran has not identified any other pertinent evidence, not already of record. The Board is also unaware of any such evidence. Background and Analysis The Veteran submitted a claim for entitlement to service connection for residuals of a fractured nose in August 2009. The Veteran maintained that he fractured his nose during basic training and continued to have problems with his nose since that time. The Veteran's STRs reflect that he was seen in July 1970 for trauma to the nose. The assessment at that time was fractured nose. X-rays showed no significant abnormality of the facial bones. The fracture was set in the emergency room and a cast applied. The Veteran was seen on an ear, nose, and throat (ENT) consult a week later. The consult noted the nose looked good and packing was removed. The Veteran was to remove his cast a week later. There were no further entries regarding residuals associated with the nose fracture. The Veteran did not list any problems with residuals of his nose fracture in his Report of Medical History at the time of his separation physical examination in December 1971. The physical examination did not report any abnormalities. As noted the Veteran submitted his claim for service connection in August 2009. The Veteran was afforded a VA examination in October 2009. The Veteran related how he fractured his nose in service. He reported repeated episodes of his nose snapping out of place and his having to push it back into place. He also reported difficulty breathing through his nose, especially at night. The examiner reported that there was 90 percent obstruction of the right nasal passage and 10 percent obstruction of the left nasal passage. There was no nasal deviation. There was no evidence of permanent hypertrophy of the turbinates, rhinoscleroma, tissue loss, scarring or deformity of the nose. There was no evidence of Wegener's granulomatosis or granulomatous infection. The Veteran was granted service connection for residuals of a fractured nose in October 2009. He was awarded a noncompensable disability rating effective from August 7, 2009. The Veteran submitted his notice of disagreement with the rating in October 2009. He perfected his appeal in March 2010. The Board notes that the Veteran submitted claims for service connection for additional issues in April 2012. These included headaches, hoarseness and swallowing problems that he felt were related to his nose injury in service. The Board further notes that these issues have been recognized by the RO but not yet adjudicated. The Veteran submitted a copy of a treatment record from R. F. Smith, M.D., dated in June 2010. Dr. Smith saw the Veteran for complaints of intermittent nasal bleeding, drainage, headaches and nasal obstruction, particularly on the right side. He noted the Veteran's history of a fractured nose in service. He also noted the prior report by VA of 90 percent obstruction in the right nasal passage and 10 percent obstruction in the left nasal passage. Dr. Smith reported the Veteran's septum as deviated to the right anteriorly and to the left side posteriorly. He also said the Veteran had an obstruction of the right nasal passage that was closer to 60 percent and the left nasal passage that was 30 to 40 percent. He said there was mild to moderate turbinate hypertrophy. His assessment was nasal septal deviation and allergic rhinitis. The Veteran also submitted treatment entries from Yanceyville Primary Care dated in May 2010. The records note the Veteran's complaints of difficulty breathing and that he was referred to Dr. Smith for evaluation. A review of electronic VA treatment records, for the period from July 2010 to July 2012, shows that the Veteran was seen for an ENT consult in March 2011. The Veteran was initially seen in the outpatient clinic to establish care in July 2010. Several entries noted the Veteran received treatment for residuals of a fractured nose from a private ENT physician. In January 2011 the Veteran complained of difficulty breathing and occasional headaches. He asked for a VA ENT appointment. The examiner noted the Veteran had seen his local ENT physician but wanted a second opinion. The Veteran was seen in the ENT clinic in March 2011. At that time the Veteran reported his nose would get stopped up. He also reported having drainage from his nose. The physician noted the Veteran had refused to use cortisone sprays for his symptoms. The Veteran reported he was told he needed some sort of surgery. The examiner noted that x-rays of the sinuses from the prior year were normal. The examiner said the nose was diffusely swollen. There was no significant dorsal deflection of the nose from trauma. He said the nasal septum was straight and there was no mechanical nasal obstruction. However, there was diffuse swelling of the nasal membranes which he said looked allergic. The examiner said he did not see any infection or polyps. Eardrums and canals were normal and palpation of the neck was negative. The Veteran's mouth, pharynx, larynx, and hypopharynx were said to be normal. The assessment was allergic versus environmental rhinitis. The examiner stated he assured the Veteran there was definitely no reason for surgery either in regard to his nose or sinuses. The Veteran testified at his Travel Board hearing in March 2013. The Veteran's representative cited to the diagnostic code used to rate the Veteran's disability and his current noncompensable rating. She reviewed the findings from the VA examination of October 2009, particularly the percent of obstruction for each nasal passage. The Veteran said he was having pain with his nose and headaches. He said he was prescribed Tramadol for his pain. He testified that he could not breathe through his nose and had to breathe through his mouth. This was mostly in the evenings. He said if he was upright he could breathe through his nose. The Veteran said he had an upcoming appointment with VA on March 29, 2013. The Veteran testified that he felt his symptoms were worse since his VA examination in 2009. He referred to his evaluation in 2010 as reflecting an increase in his disability. He cited to the findings of Dr. Smith to show that the 10 percent obstruction had increased. The Veteran submitted a copy of his appointment in the VA Otolaryngology clinic in March 2013 to the Board in April 2013. The entry noted that the Veteran complained of problems with his throat - a difficulty in swallowing, and problems with his nose. This problem related to his difficulty breathing, more on the right than the left side. On examination the Veteran's nares were said to be patent. The septum was deviated to the left posteriorly and thick mucus was noted bilaterally. The examiner said the findings were nasal cavity with posterior left septal deviation and thick mucus. The overall impression was chronic rhinitis and acute viral pharyngitis. The Veteran's disability is rated under Diagnostic Code 6502 traumatic deviation of the septum. 38 C.F.R. § 4.97 (2012). Under this diagnostic code, deviation of the nasal septum warrants a 10 percent rating when there is 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 10 percent evaluation is the maximum schedular rating for deviation of the nasal septum under Diagnostic Code 6502. The evidence in this case does not reflect a total obstruction of one nasal passage or a 50 percent obstruction of both nasal passages at the same time. However, a fair reading of the evidence does show the Veteran with nearly total obstruction of his right nasal passage at the time of his examination in October 2009. In June 2010, the findings nearly approximately a 50-50 obstruction of his nasal passages. The VA outpatient records do not record specific findings as to the degree of obstruction but obstruction is continually noted. The Board finds that his disability does more nearly approximate the rating criteria for a 10 percent rating, from the date of his claim. His obstruction is continuous since the date of claim. The two times when specific measurement of the obstruction has been undertaken have shown symptoms very near to those required for the 10 percent rating. There is no evidence of record to show any measureable improvement in the amount of obstruction and the Veteran has continued to have the same difficulties breathing through the entirety of his appeal. Thus, a 10 percent rating is in order from the date of claim, August 7, 2009. The Board has considered the doctrine of reasonable doubt. Here the Veteran is being assigned the maximum schedular rating for his disability. Thus, reasonable doubt is not a factor in this determination. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Board has also considered whether the Veteran's disability is so exceptional as to require consideration of an extraschedular rating. In Thun v. Peake, the Court held that determining whether a claimant is entitled to an extraschedular rating is a three-step inquiry. 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. In this case, the schedular criteria are adequate to address the Veteran's level of disability for residuals of a fractured nose. The disability rating granted by the Board is the maximum schedular rating available. It represents recognition of the impairment demonstrated by the Veteran's objective and subjective symptoms. The obstruction of his nasal passages and his difficulty in breathing as a result of the obstructions. The Veteran has complained of nose pain but the treatment records show his complaints of pain reflect primarily on his headaches. Service connection for headaches, as well sinusitis, sleeping difficulty, and swallowing problems, are outstanding issues pending adjudication by the RO. There is nothing unusual in the Veteran's specific case of complaints of difficulty breathing, with some pain, that makes the rating schedule inadequate to address his fractured nose disability. In light of this finding there is no requirement to proceed with the next two steps in consideration of an extraschedular rating. Thun, 22, Vet. App. at 116. ORDER A rating of 10 percent for residuals of fractured nose is granted for the entire period of the appeal, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs