Citation Nr: 1340763 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-12 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an initial disability rating in excess of zero percent for loss of sense of smell as a residual of septoplasty. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1982 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the Virtual VA claims file does not reveal any additional evidence pertinent to the present appeal. FINDING OF FACT The Veteran's loss of sense of smell as a residual of septoplasty involved a partial loss of sense of smell. CONCLUSION OF LAW The criteria for an initial disability rating in excess of zero percent for loss of sense of smell as a residual of septoplasty have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1 , 4.2, 4.3, 4.7, 4.10, 4.87a, Diagnostic Code 6275 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants 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). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, and thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, because the notice that was provided before service connection for loss of sense of smell as a residual of septoplasty was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent a VA examination in June 2010. The Board finds that the VA examination is adequate, because the examination included a review of the claims file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also observes that the Veteran has not contended, and the evidence does not suggest, that his loss of sense of smell has worsened since the June 2010 examination. For these reasons, further examination is not necessary. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his increased rating claim. The Veteran has not identified any outstanding evidence that needs to be obtained. For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). I. Increased Rating Service connection for the partial loss of sense of smell as a residual of septoplasty was established in a July 2010 rating decision, at which time the RO assigned an initial disability rating of zero percent pursuant to 38 C.F.R. § 4.87a., Diagnostic Code (DC) 6275. The Veteran has appealed the assignment of the initial zero percent disability rating. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. Under DC 6275, a 10 percent disability rating is assigned for a complete loss of sense of smell. The Note to DC 6275 states that an evaluation will be assigned under DC 6275 only if there is an anatomical or pathological basis for the condition. 38 C.F.R. § 4.87a., DC 6275. The Veteran contends that his loss of sense of smell is more disabling than currently evaluated and warrants a higher rating. He asserts that he can only smell strong odors. A March 2004 private treatment record reflects that the Veteran underwent a septoplasty to correct a deviated septum. A March 2010 private treatment record shows that the Veteran complained of a decrease in his sense of smell. He said that he had a decreased sense of smell since his surgery in March 2004, but he never sought treatment, because he knew it could not be treated. The private treating physician stated that a decrease or loss of sense of smell was a risk to septoplasty, but also stated that no treatment was available. An April 2010 private treatment record reflects that the Veteran was found to have anosmia (loss of sense of smell). The record did not indicate whether the loss of sense of smell was partial or complete. The Veteran was afforded a VA examination in June 2010. The examiner noted that the Veteran experienced chronic loss of sense of smell following his septoplasty in March 2004. The examiner reported that the Veteran had nasal congestion and occasional breathing difficulty, but the examiner found no signs of nasal obstruction. An x-ray of the Veteran's sinuses revealed that the Veteran had normal paranasal sinuses. The examiner performed a smell test and found that the Veteran was able to smell coffee and soap, but that he was unable to smell lemon. The examiner diagnosed the Veteran with a partial loss of sense of smell due to postoperative residual of septoplasty. The Veteran argued in his July 2010 Notice of Disagreement that his loss of sense of smell warrants a compensable evaluation. He said that when he brought fish for lunch, his co-workers would complain of the strong smell, but that he could barely smell the odor. He also said that he only recognized stronger than normal odors. He contends that his inability to smell one of the three items tested, during his June 2010 VA examination, indicated that he had lost a third of his sense of smell. He also argues that he was only able to smell the coffee and soap, because he used the products daily and he "took a strong sniff of the items to make sure of what they were." The Board acknowledges that the Veteran contends that he has a significant loss of his sense of smell. A layperson is competent to describe what comes to him through the senses. See Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Veteran can assert that the symptoms associated with his service-connected loss of sense of smell are worse. His report of such symptomatology is credible. However, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In this case, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. Although the Veteran contends that symptoms associated with loss of sense of smell are more severely disabling, the Board observes that objective testing on VA examination in June 2010 reflects no more than partial loss of smell, and that complete loss of sense of smell is not demonstrated. The Veteran also admits that he retains the ability to identify strong odors which is evidence that he has only partial loss of the sense of smell. The Board thus concludes that medical evidence assessing diminished and/or partial loss of taste is more probative because it is consistent with the Veteran's own report. Therefore, to the extent that the Veteran reports greater impairment than that shown on examination and by his own admission, the Board concludes that such statements have less probative value. The Board finds that his report that he retains the sense of smell for strong odors is credible. In view of such, no more than a noncompensable evaluation is warranted. The Board has also considered whether the Veteran's partial loss of sense of smell presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide a higher rating for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Thus, with the preponderance of the evidence against the assignment of a higher initial rating, the benefit-of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial disability rating in excess of zero percent for loss of sense of smell as a residual to septoplasty is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs