Citation Nr: 1327234 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-14 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable rating for a healed fracture of the nasal bone. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was previously before the Board in November 2011 and was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its November 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board's November 2011 remand addressed the issue of entitlement to service connection for pseudofolliculitis barbae, also claimed as facial skin disability. On remand, the RO granted service connection for pseudofolliculitis barbae in a January 2012 rating decision, which represented a total grant of benefits sought on appeal for that issue. As such, that issue is considered resolved in full and is no longer on appeal. FINDING OF FACT During the rating period on appeal, there has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran's healed fracture of the nasal bone is manifested by 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side, loss of part of one ala or other obvious disfigurement, or exposure of both nasal passages. CONCLUSION OF LAW The criteria for a compensable rating for a healed fracture of the nasal bone have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 4.97, Diagnostic Code 6502 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA correspondence dated in May 2007 advised the Veteran of the necessary elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically, the Veteran was informed of what evidence was required to substantiate the claim for an increased rating, of his and VA's respective duties for obtaining evidence, and of the criteria necessary for assignment of a disability rating. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board concludes that VA's duty to assist has also been satisfied. The Veteran's service treatment records and post service medical records are in the file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In compliance with the Board's November 2011 remand, the RO provided the Veteran an appropriate VA examination in December 2011. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). The VA examiner discussed the history of the Veteran's healed fracture of the nasal bone, conducted an examination of the Veteran, and elicited information from the Veteran concerning the functional aspects of his disability. As it provides sufficient detail to determine the current severity of the Veteran's service-connected disability, the Board finds that the VA examination obtained was adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board finds the RO substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Disability ratings are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection for a healed fracture of the nasal bone was granted in a February 1971 rating decision and a noncompensable initial rating was assigned effective January 21, 1971. The Veteran filed his present claim for a compensable rating for his service-connected healed fracture of the nasal bone in April 2007. By the September 2007 rating decision on appeal, the RO continued the noncompensable rating for the Veteran's nasal disability. The Veteran's nasal disability is evaluated as deviation of the nasal septum under 38 C.F.R. § 4.97, Diagnostic Code 6502. A maximum 10 percent evaluation is warranted for traumatic deviation with 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. Under Diagnostic Code 6504, a 10 percent rating is warranted for loss of part of nose, or scars, where there is loss of part of one ala, or other obvious disfigurement. A 30 percent rating is warranted for loss of part of nose, or scars, where there is exposure of both nasal passages. 38 C.F.R. § 4.97, Diagnostic Code 6504 (2012). A Note following Diagnostic Codes 6502 and 6504 indicates that, in the alternative, a rating under 38 C.F.R. § 4.118, Diagnostic Code 7800, for disfiguring scars of the head, face, or neck is for application. See 38 C.F.R. § 4.97, Note following Diagnostic Code 6504 (2012). The Veteran complained of nasal obstruction on a VA nasal examination in March 2008. He stated that he noticed it most when he laughed hard and became short of breath. He reported that he had become a chronic mouth breather over the years because he could not breathe out of his nose. He also reported a history of loud snoring along with apnea witnessed by his wife. Physical examination revealed nasal dorsum without obvious deformity or deviation, severe nasal septal deviation to the left approximately 80 percent, and very edematous turbinates with copious amounts of clear rhinorrhea, bilaterally. There were no masses, polyps, or purulence. The impressions were nasal obstruction, nasal septal deviation, and rhinitis. The VA examiner noted that the Veteran's nasal obstruction was most likely a combination of his severe nasal septal deviation along with edematous turbinates that may or may not be related to his allergies. The examiner further noted that the sleep disordered breathing symptoms were consistent with obstructive sleep apnea in addition to body habitus. The Veteran was noted to have minimal allergic symptoms. March 2008 X-rays of the sinuses showed edema of the nasal turbinates was noted. The nasal septum was midline. More recently, the Veteran underwent a VA examination in December 2011. The VA examiner indicated that the claims file was reviewed. The Veteran described nasal obstruction at night, and when he laughed or exercised. The examiner noted that the X-ray series taken in March 2008 showed no evidence of nasal fracture or any evidence of septal deviation. The examiner further noted that although the March 2008 VA examination reported a severe septal deviation, he noticed only mild septal spurring and that his examination agreed with the X-ray findings. The Veteran's nasal pyramid was normal in appearance and to palpation and showed no evidence of fracture or traumatic deformity. The examiner found no deviated nasal septum due to trauma. The examiner indicated that although the Veteran had allergic, vasomotor, bacterial or granulomatous rhinitis, 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side was not shown. The examiner also indicated that the Veteran did not have any scars (surgical or otherwise) related to the diagnosis of deviated nasal septum. As to the functional impact, the examiner found that the Veteran's nasal disability did not impact his ability to work. After reviewing all of the evidence of record, the Board finds that the Veteran's nasal disability picture more nearly approximates the criteria for a noncompensable rating for a healed fracture of the nasal bone. 38 C.F.R. § 4.97, Diagnostic Codes 6502 and 6504. In this case, the Veteran is competent to report his nasal symptoms, such as nasal obstruction, difficulty breathing through the nose, and nocturnal breathing difficulties. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994) (holding that the Veteran is competent to attest to the factual matters of which he had first-hand knowledge). His complaints are credible. The March 2008 examiner attributed the nasal obstruction symptoms to a combination of the Veteran's severe nasal septal deviation and his edematous turbinates that may or may not be related his allergies. The Board notes, however, that the March 2008 examiner's report of a severe nasal septal deviation was not consistent with the X-ray findings at that time which indicated that the nasal septum was midline. Despite this apparent inconsistency in the findings, the examiner did not provide any explanations. On the other hand, the December 2011 VA examination reported no deviated nasal septum due to trauma, other than only mild septal spurring. While both the March 2008 and December 2011 VA examiners are competent to report physical examination findings and the Board has no reason to doubt the credibility of either VA examiner, the Board attaches greater probative value to the December 2011 VA examiner's finding of no deviated nasal septum due to trauma because it is consistent with the objective X-ray findings. While it has been reported that the Veteran's reported nasal obstruction symptoms are attributable to his edematous turbinates that may or may not be related his allergies; even if these symptoms are related to his service-connected healed fracture of the nasal bone, there has been no demonstration of obstruction of the nasal passages sufficient to warrant a compensable rating. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board also considered the Veteran's complaints of nocturnal breathing difficulties, but the March 2008 VA examiner attributed the Veteran's nocturnal breathing symptoms to his sleep disorder, which was consistent with obstructive sleep apnea in addition to his body habitus. While the Veteran is competent to report nasal symptoms in general, whether or not the residuals of the healed fracture of the nasal bone are sufficient to warrant a compensable rating under the rating schedule is a complex medical issue, which is not within the realm of common knowledge or experience. The Veteran has not been shown to have had medical training, and the Board finds that the Veteran's assertions in this regard are not competent evidence and therefore attaches far greater probative value to the VA examiners' opinion as to whether the Veteran has 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). In any event, 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side is not shown based on competent evidence of record. In this regard, the March 2008 VA examiner did not mention the degree of nasal obstruction regardless of whether it was due to a deviated septum. The December 2011 examiner specifically indicated that although the Veteran had rhinitis, 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side was not shown. For these reasons, the Board finds that the criteria for a compensable rating for a healed fracture of the nasal bone have not been met or approximated under 38 C.F.R. § 4.97, Diagnostic Code 6502 at any time during the rating period on appeal. Furthermore, the evidence does not show the severity required for a compensable rating based on the applicable symptomatology under Diagnostic Code 6504. To warrant a compensable rating under Diagnostic Code 6504, there would need to be evidence of loss of part of one ala or other obvious disfigurement, or scars with exposure of both nasal passages. In this case, however, there is no medical evidence, and the Veteran has not contended, that he has loss of part of the nose, scars that expose the nasal passages, or disfiguring scars of the nose warranting a compensable rating under Diagnostic Code 7800. To that effect, the March 2008 VA examination revealed nasal dorsum without obvious deformity or deviation. Additionally, the December 2011 VA examiner indicated that the Veteran did not have any scars, surgical or otherwise, related to the diagnosis of deviated nasal septum. As such, the Veteran's nasal disability does not involve disfigurement. As the preponderance of the evidence is against a compensable rating for a healed fracture of the nasal bone, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the schedular rating in this case is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected nasal disability. See Thun, 22 Vet. App. at 115. The Veteran's healed fracture of the nasal bone is evaluated by the rating criteria which specifically contemplate the degree of nasal obstruction and disfigurement of the nose caused by this disability. See 38 C.F.R. § 4.97, Diagnostic Codes 6502, 6504. When comparing the Veteran's symptoms with the schedular criteria, the Board finds that the Veteran does not have symptomatology associated with his nasal disability that have been unaccounted for by the currently assigned schedular rating. See id. Accordingly, a comparison of the Veteran's symptoms resulting from his healed fracture of the nasal bone with the pertinent schedular criteria does not show that his service-connected nasal 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). Consequently, the Board finds that the available schedular rating is adequate to rate the Veteran's healed fracture of the nasal bone. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. The Board finds that the evidence is against the assignment of a compensable rating for a healed fracture of the nasal bone, at any time during the rating period on appeal. As such, staged ratings are not for application. See Hart v. Mansfield, 21 Vet. App. 505 (2008). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, 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. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable. Specifically, the December 2011 VA examination, reported as to the functional impact, that the Veteran's nasal disability did not impact his ability to work. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to a compensable rating for a healed fracture of the nasal bone is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs