Citation Nr: 1339271	
Decision Date: 11/29/13    Archive Date: 12/13/13

DOCKET NO.  12-33 306	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1. Entitlement to a compensable rating for a deviated septum.

2. Entitlement to a compensable rating for varicose veins.


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1989 to January 1994.

This matter comes before the Board of Veterans' Appeals on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied increased ratings.

The issue of an increased rating for varicose veins is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

The evidence does not show that the Veteran's deviated septum obstructs 50 percent of his nasal passage on both sides or completely obstructs one side, or that he has sinusitis with incapacitating episodes.


CONCLUSION OF LAW

The criteria for a compensable rating for a deviated septum have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6502 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice must inform the claimant of any information and evidence not in the 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.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  These notice requirements apply to all elements of a claim, including the degree and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).

The RO sent a letter to the Veteran in March 2009 providing him notice, which satisfied the requirements of the VCAA.  See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b).  The Veteran was informed of what evidence and information he needed to substantiate his claim, which VA would seek to obtain, which he could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman.  The letter was sent prior to the initial denial of his claim.  Thus, VA satisfied its duty to notify the Veteran.

Next, VA has a duty to assist the Veteran in the development of claims.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All pertinent, identified medical records have been obtained and considered.  The Veteran was afforded a VA contract examination for his deviated septum in March 2009.  This examination addressed the pertinent rating criteria, and there is no argument or indication that it was inadequate.  The Veteran also had an opportunity to submit additional evidence but provided no information about current treatment for this disability.  The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence.  

As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

II. Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation 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.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

Disabilities of the deviated septum are rated under diagnostic code 6502, which provides for a maximum, 10 percent rating for a deviated septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side.  38 C.F.R. § 4.97 DC 6502.

The Veteran has provided statements of his symptoms; while he is competent to provide such statements of symptoms observable by his senses, he is not competent to diagnose a deviated septum or explain its effect as this requires specialized knowledge, training, and medical diagnostic tests such as x-rays.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  The Board also finds the Veteran credible to report these symptoms as his statements are consistent with those presented in medical evidence.

The Veteran's deviated septum does not warrant a compensable rating.  He reports using a steroid nasal spray daily, having difficulty breathing through his nose, and issues with breathing while asleep, including having to use nasal strips.  During the March 2009 examination, the VA contract examiner recorded similar breathing trouble symptoms but found no obstruction of the nasal passage upon physical examination.  After reviewing a nasal x-ray, the examiner determined that the Veteran's nasal septum is deviated to the left.  There is no evidence that the left side of his nasal passage is completely obstructed.  To the contrary, a VA examiner in July 1996 concluded that the left nasal airway was narrowed by the deviated septum, but not blocked.  Although this evidence is not within the rating period on appeal, it is pertinent as evidence of how the Veteran's deviated septum affected his nasal passage after the fracture and repair.  Based on the foregoing, there is no evidence to suggest that the Veteran's deviated septum obstructs his nasal passage by 50 percent or completely obstructs one side.  Therefore, a compensable rating under diagnostic code 6502 is not warranted.  38 C.F.R. § 4.97 DC 6502.

Moreover, the Veteran's deviated septum could not warrant a higher rating under analogous diagnostic codes such as 6510 through 6514.  Specifically for those diagnostic codes, a 10 percent rating requires sinusitis with one or two incapacitating episodes requiring prolonged antibiotic treatment or three to six non-incapacitating episodes characterized by headaches, pain and purulent discharge or crusting.  

There is no clinical evidence to suggest that the Veteran suffers from sinusitis.  See VA Contract Examination March 2009.  The Veteran reported having headaches and earaches.  See Notice of Disagreement (NOD) February 2010.  The March 2009 examiner noted reports from the Veteran of constant sinus problems and nasal crusting, but he noted no incapacitating or non-incapacitating episodes of sinusitis, no antibiotic treatment for sinusitis, and no purulent discharge.  The examiner found no signs of sinusitis upon physical examination.  As the evidence does not show sinusitis with incapacitating episodes, requiring antibiotics, or with pain and purulent discharge, the Veteran's disability does not warrant a compensable rating under these diagnostic codes either.  See 38 C.F.R. § 4.97 DC 6510-6514.  Further, there is no evidence of scars or disfigurement, which could be rated under another diagnostic code.      

The preponderance of the evidence supports the assigned non-compensable rating for the Veteran's deviated septum, and staged ratings are not appropriate.  See 38 C.F.R. § 4.97; see Hart, 21 Vet. App. at 509-10.  The benefit of the doubt doctrine is inapplicable and the Veteran's claim must be denied.  See 38 C.F.R. § 4.3.

ORDER

A compensable rating for deviated septum is denied.


REMAND

An additional opinion is needed before the Veteran's claim for varicose veins can be finally adjudicated.  The Veteran had an examination with a VA contractor in March 2009 where the examiner acknowledged a prior diagnosis but found no evidence of various veins on examination.  Further, the examiner concluded that the Veteran's varicose veins were asymptomatic.  However, the Veteran has reported symptoms of pain and swelling in his legs at least partially relieved by compression hosiery and elevation.  See February 2010 notice of disagreement, Statement February 2010, Form 9 November 2012.  As such, an addendum opinion is necessary to reconcile these conflicting reports and provide a current opinion on the Veteran's disability, including considerations of his statements of symptoms.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007), Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007).  

Accordingly, the case is REMANDED for the following action:

1.  Forward the claims file to the VA contract examiner from March 2009, or another appropriate examiner if he is not available, to provide an addendum opinion on the Veteran's varicose veins.  The examiner should consider the Veteran's statements of symptoms and provide an opinion attempting to reconcile these reports with his finding that the Veteran's condition was asymptomatic.  Such statements cannot be rejected merely because there is an absence of supporting clinical evidence. 

If any requested opinion cannot be offered without resort to speculation, state whether the inability is due to the absence of any evidence or is due to the limits of scientific or medical knowledge.

2. Review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand.  If it does not, an addendum should be requested.
 
3. If any benefit sought on appeal remains denied issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

The appellant 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 of Veterans' Appeals 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. 2013).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs