Citation Nr: 1342998	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  09-35 922	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an effective date prior to May 31, 2008 for an initial 10 percent rating for deviated nasal septum.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel



INTRODUCTION

The Veteran had active duty service from June 1975 to June 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C., which granted service connection and a noncompensable rating for a deviated nasal septum effective October 24, 2001, and assigned a 10 percent rating for the disability effective May 31, 2008.  Original jurisdiction over the claims file resides at the St. Petersburg, Florida Regional Office (RO).  


FINDING OF FACT

From October 24, 2001, the date of receipt for the Veteran's claim for service connection, his deviated nasal septum has more likely than not been manifested by 60 percent obstruction of both sides of the nasal passage.


CONCLUSION OF LAW

With resolution of reasonable doubt in the appellant's favor, the criteria for an effective date of October 24, 2001, for the award of a 10 percent rating for a deviated nasal septum, have been met.  38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.2, 4.3, 4.97, Diagnostic Code 6502 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that the effective date for his 10 percent rating for a deviated nasal septum should be October 24, 2001, the date of his claim for service connection.  The effective date of an award for compensation benefits in an original claim is the date VA received the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The evidence must demonstrate a deviated nasal septum with 50 percent obstruction on both sides of the nasal passage for a 10 percent rating.  38 C.F.R. § 4.97, Diagnostic Code 6502.

Following the Veteran's October 2001 claim, the first medical provider to address the severity of the deviated septum was the May 2008 VA examiner; notably, VA did not provide such an examination, despite the Veteran's request for one, until the Board remanded his appeal for service connection in September 2006.  Although no medical provider addressed the severity of the deviated septum prior to that examination, which ultimately showed a 60 percent obstruction of each side of the nasal passage, the record suggests that the May 2008 findings are consistent with the disability picture from the time of the Veteran's October 2001 claim.  

Statements from the Veteran dating to June 1978 indicated a history of having his nose broken three times during service, and continued difficult breathing.  Statements from the Veteran and two friends indicate that the appellant's difficulty breathing existed since prior to October 2001.  Private treatment records from 2001 and 2002 showed a diagnosis of a deviated nasal septum; although those records did not address whether there was a 50 percent obstruction on both sides, those records are consistent with the May 2008 findings.  Thus, the evidence demonstrates it is more likely than not that the Veteran has met the criteria for a 10 percent rating since the time of his October 2001 claim for service connection.  38 C.F.R. § 4.97, Diagnostic Code 6502.


ORDER

Entitlement to an effective date of October 24, 2001 for the award of a 10 percent disability rating for a deviated nasal septum, is granted, subject to the laws and regulations governing the payment of monetary benefits.

____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs