Citation Nr: 1337817 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-20 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable disability rating for service-connected residuals of a nasal fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from March 1990 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. In January 2008, the Veteran was scheduled to appear at a personal hearing over which a decision review officer would have presided. However, the Veteran cancelled his request for this hearing. In March 2009, he had been scheduled to appear at a personal hearing over which a Veterans Law Judge of the Board would have presided. However, he failed to report for this hearing. The Veteran has not provided any explanation for the failure to appear for the Board hearing nor has he requested a rescheduled hearing. The case, therefore, will be processed as though the request for a Board hearing had been withdrawn. See 38 C.F.R. § 20.704. This matter was previously before the Board in February 2011 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran does not suffer from any current residuals as a result of his in-service nasal fracture. CONCLUSION OF LAW The criteria for a compensable disability rating for service-connected residuals of a nasal fracture have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code 6502 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. As to VA's duty to assist, VA has associated with the claims file the Veteran's service, VA, and private treatment records. The Board further observes that this case was remanded in February 2011 in order to obtain outstanding VA treatment records and afford the Veteran a VA examination so as to assess the severity of his disability. Thereafter, VA requested that the Veteran identify any post-service medical treatment for the issue on appeal. However, he has yet to identify any post-service medical treatment related to this condition. He was afforded a VA examination in March 2011, in addition to prior March 2006 and March 2008 VA examinations. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries, supra. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2013). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran contends that he is entitled to an initial compensable disability rating for his service-connected residuals of a nasal fracture. Service connection was originally granted in an April 2006 rating decision. A noncompensable (zero percent) disability rating was assigned under Diagnostic Code 6599-6502, effective as of October 21, 2005. A timely notice of disagreement was received from the Veteran in June 2006, but the noncompensable disability rating was continued in a May 2007 Statement of the Case. The Veteran appealed the assigned rating to the Board in July 2007. Upon receipt of his original claim, the Veteran was afforded a VA examination in February 2006. It was noted that the Veteran broke his nose along with multiple facial fractures in a motor vehicle accident in 1991. The Veteran reported constant nosebleeds and frequent headaches. The Veteran also noted that he had plates and screws and other retained hardware in his face. It was noted that the Veteran sustained multiple facial fractures and that he would subsequently be evaluated by an ENT (ears, nose, and throat doctor-otolaryngologist). The Veteran was afforded an examination with an ENT in March 2006. The examiner noted that while in service, the Veteran was riding in a van that flipped over. Examination revealed some scarring of the face. Externally, the nose looked and felt straight. It was noted that the Veteran believed his nose was probably fractured, but that he did "not make any strong claim for this." The septum was also noted to be straight, and while the nose was noted to be congested, the examiner estimated a zero percent obstruction for each passageway. The Veteran was afforded an additional VA examination in March 2008. It was noted that the Veteran fractured his nasal bone in a motor vehicle crash in 1991 and that he was treated surgically with plates and screws. Examination of the nose revealed a normal nasal vestibule and normal septum with no obstruction or polyps. The examiner diagnosed the Veteran with a prior nasal fracture that had resolved. There were no effects from this condition on the Veteran's usual daily activities. Finally, the Veteran was most recently afforded a VA examination of the nose in March 2011. It was again noted that there was a history of a nasal fracture in 1991. Examination revealed no significant obstruction or septal deviation. X-rays revealed extensive reconstruction. The nasal bone was noted to deviate slightly to the left. The examiner diagnosed the Veteran with a nasal septum fracture, status post closed reduction. There was minimal deviation on X-ray that was not clinically apparent. The examiner concluded that this condition had healed and was asymptomatic with no residuals. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a compensable disability rating for the residuals of a nasal fracture at any time during the pendency of this claim. As already noted, the Veteran's disability is rated under Diagnostic Code 6599-6502. When an unlisted disease, injury or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" by using the first two digits of that part of the rating schedule which most closely identifies the part, or system, of the body involved and adding a "99" for the unlisted condition. 38 C.F.R. § 4.27. Diagnostic Code 6502 provides a compensable disability rating of 10 percent when there is evidence of nasal deviation of the septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. In the present case, the medical examiners of record have consistently found no evidence of significant obstruction in either nasal passageway. As such, a compensable disability rating is not warranted under Diagnostic Code 6502. The Board has also reviewed the rating schedule to determine if there is any other diagnostic code provision that may permit a compensable disability rating. However, a review of the rating schedule reflects no other code that would permit a compensable rating for the Veteran's non-symptomatic residuals of a nasal fracture. See 38 C.F.R. § 4. The Board recognizes that the Veteran believes he is entitled to a compensable disability rating for the residuals of his nasal fracture. In his June 2006 notice of disagreement, he asserted that he was entitled to a higher rating based on daily nosebleeds when he would blow his nose. However, the mere presence of a bleeding nose following the blowing of the nose is not evidence that would warrant a compensable disability rating under the rating schedule. The evidence demonstrates that the Veteran's nose was repaired, and that there is no obstruction. While the Veteran has related nosebleeds to his in-service nasal fracture, the record in fact contains no medical evidence supporting this theory. Rather, it has been found repeatedly that the Veteran in fact suffers from no residuals as a result of his in-service nasal fracture. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The preponderance of the evidence is against the appellant's claim of entitlement to service connection for hearing loss. The claim must be denied. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the United States Court of Appeals for Veterans Claims (Court) specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular rating is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular rating does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter 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. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in the average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of his service-connected nasal fracture residuals. In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular ratings. In this respect, while the Veteran has related his nosebleeds to his in-service nasal fracture, VA medical examiners have consistently concluded that there are in fact no residuals related to this in-service fracture. In short, the Board finds that the assigned schedular disability rating is adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). The Board notes that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In the present case, however, the Veteran has not asserted occupational impairment stemming from the residuals of his in-service nasal fracture. Thus, this matter will not be further considered. ORDER An initial compensable disability rating for service-connected residuals of a nasal fracture is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs