Citation Nr: 1329970 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-12 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable rating prior to March 11, 2013, and in excess of 10 percent thereafter for nasal fracture with deviated septum and rhinitis. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing in September 2011. A transcript of that hearing has been associated with the Veteran's claims file. The appeal was addressed by the Board in a February 2012 remand. At that time, the Board remanded perfected appeals on the issues of entitlement to a compensable disability rating for a nasal fracture and service connection claims for sinusitis and rhinitis. The Board also remanded an issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for sleep apnea for procedural purposes only. In this respect, the Veteran had initiated an appeal on the sleep apnea claim with the timely filing of a notice of disagreement (NOD), but the RO had not furnished the Veteran a Statement of the Case (SOC) to allow him to perfect his appeal to the Board, if he so desired. See Manlincon v. West, 12 Vet. App. 238 (1999). In August 2012, the agency of original jurisdiction (AOJ) furnished the Veteran an SOC on the issue of service connection for sleep apnea. A review of the claims folder, the Virtual VA electronic records storage system and the Veterans Appeals Control and Locator System (VACOLS) does not reflect that the Veteran has perfected his appeal to the Board. Thus, the Board has no jurisdiction to consider this issue. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.202 (2012); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). By rating decision dated May 2013, the AOJ granted service connection for sinusitis and rhinitis, and assigned initial disability ratings and effective dates of awards. This rating action terminated the appeal as to these issues. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In this regard, the May 2013 rating decision, in granting service connection for rhinitis, also granted service connection for a deviated septum and combined such disabilities with the evaluation of the Veteran's service-connected nasal fracture, awarding a 10 percent rating, effective March 11, 2013. Therefore, as the AOJ has awarded separate ratings for separate periods of time based on the facts found, such issue is characterized as shown on the first page of the decision. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals additional VA treatment records that are not associated with the paper claims folder. These records were last attached to the virtual record on May 15, 2013, and reviewed by the AOJ in the May 21, 2013 supplemental SOC (SSOC). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board regrets any further delay in adjudicating this claim, but finds that the March 2013 VA examination report must be returned as inadequate for rating purposes, and that further AOJ adjudicative actions are necessary. The assignment of a particular Diagnostic Code (DC) is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993). By way of history, the Veteran incurred a nasal fracture in service and, in a February 1993 rating decision, service connection for nasal fracture was established and an initial noncompensable rating was assigned pursuant to DC 5296, effective May 18, 1992. DC 5296 pertains to loss of part of the skull, both inner and outer tables. In the March 2013 rating decision, the AOJ granted service connection for deviated septum and rhinitis as part of his nasal fracture and assigned a 10 percent rating under DC 6522-6502, effective March 11, 2013. The hyphenated diagnostic code in this case indicates that the service-connected disability is considered to be allergic or vasomotor rhinitis (6522) associated with a residual condition of deviation of nasal septum (6502). See 38 C.F.R. § 4.27. In this regard, the March 2013 VA examiner opined that the Veteran's left-sided deviated nasal septum is a residual of his in-service injury that resulted in a nasal fracture. The VA examiner also attributed the Veteran's chronic sinusitis and rhinitis disabilities to the nasal fracture. The Veteran's representative has argued that the Veteran's residuals of nasal fracture would be appropriately rated under DC 6502. The criteria of DC 6502 provides a maximum 10 percent rating for a 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side due to traumatic septum deviation. 38 C.F.R. § 4.97, DC 6502 (emphasis added). The criteria of DC 6522 evaluates allergic or vasomotor rhinitis. 38 C.F.R. § 4.97, DC 6522. A 10 percent rating contemplates a greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side due to allergic or vasomotor rhinitis. Id. A 20 percent rating is warranted for rhinitis with polyps. As indicated previously, in the March 2013 rating decision, the AOJ granted service connection for sinusitis and rhinitis as residuals of the nasal fracture. At this time, the AOJ "combined" the disability ratings for nasal fracture and rhinitis, characterized as "NASAL FRACTURE WITH DEVIATED SEPTUM AND RHINITIS," and assigned a 10 percent rating under DC "6522-6502." This was purportedly based upon a finding of "[a]t least 50 percent obstruction of the nasal passage on both sides." The provisions of 38 C.F.R. § 4.14 preclude VA from evaluating the same disability under various diagnoses, or the same manifestation of service-connected disability under different diagnostic codes. However, it is a well-settled principle that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Here, the 10 percent criteria of DCs 6502 and 6522 contain the same language - "a greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side." However, the source of the obstruction comes from different etiologies - cartilaginous obstruction from deviated septum (DC 6502) or allergic rhinitis (DC 6522). The May 2013 VA Disability Benefits Questionnaire (DBQ) reflects that the VA examiner provided a positive response to Box 4a (page 21) as to whether there was at least a 50 percent obstruction of nasal passage on both sides due to traumatic septal deviation. However, in the medical opinion section on page 31, the VA examiner made the following statement: Though the traumatic septal deviation from service-connected nasal fracture is severe, there is not evidence on my exam to suggest over 50-percent obstruction of nasal passage on both sides or complete obstruction of the nasal passage on one side. Thus, the VA examiner provided contradictory findings as to whether the Veteran's septal deviation caused at least a 50 percent obstruction of nasal passage on both sides. The Board, therefore, requires clarification from the VA examiner as to the contradictory findings and, subsequently, for the AOJ to consider whether it is appropriate to assign separate disability ratings for both the nasal fracture and rhinitis. Additionally, while on remand, the Board finds that efforts should be made to associate with the claims folder the actual computed tomography (CT) scan report obtained by Dr. S. in July 2010 which was interpreted as showing a 90 percent blockage of the right nasal airway. The Veteran's representative argued that such a finding supported a compensable rating under DC 6502, but the examination reports from Dr. S. appear to support a finding that the source of the right airway obstruction was severely reactive inferior and middle nasal turbinates and not septal deviation. Furthermore, updated VA treatment records, dated from May 15, 2013, to the present should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder clinical records of the Veteran's VA treatment since May 15, 2013. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Assist the Veteran in obtaining any relevant private treatment records, including complete records from Dr. S. which includes the actual results from a July 2010 CT scan. After securing any necessary authorization from him, obtain all identified treatment records. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After obtaining any outstanding treatment records, return the claims file to the VA examiner who conducted the Veteran's March 2013 examination pertaining to his deviated septum, rhinitis, and nasal fracture. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the March 2013 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should comment on the following: a) the percentage of obstruction of the left nasal passage due to traumatic septal deviation; b) the percentage of obstruction of the right nasal passage due to traumatic septal deviation; and c) clarification as to the source of the right nasal airway blockage reported by Dr. S. in the August 2011 examination report. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. In readjudicating the Veteran's increased rating claim, the AOJ should specifically consider whether separate ratings for deviated nasal septum under DC 6502 and allergic rhinitis under DC 6522 are warranted, to include consideration of the source of any nasal blockage. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).