Citation Nr: 1410447 Decision Date: 03/13/14 Archive Date: 03/20/14 DOCKET NO. 09-28 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for status post-surgery for deviated nasal septum. REPRESENTATION Veteran represented by: Janice E. Falini, Attorney at Law ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran had active military service from February 1976 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that, in an August 2009 his substantive appeal (VA Form 9), the Veteran's representative at the time requested a Board hearing before a Veterans Law Judge conducted via video-conference. Thereafter, an August 2009 letter acknowledged the Veteran's representative's hearing request. However, in a subsequent substantive appeal (VA Form 9) completed by the Veteran and received in March 2010, he indicated that he did not want a Board hearing in connection with his appeal. Therefore, the Board finds that there are no outstanding hearing requests and may proceed with the adjudication of the Veteran's claim at this time. 38 C.F.R. §§ 20.702(e), 20.704(e) (2013). The Board notes that RO issued a series of rating decisions concerning other issues related to the Veteran's nose and breathing difficulties. In September 2012, the RO increased Veteran's rating for his service-connected asthma from 10 to 30 percent, and awarded him service connection for chronic sinusitis, as secondary to his service-connected deviated septum disability, at a noncompensable rating under Diagnostic Code 6512, effective March 4, 2010. In February 2010, the RO continued the Veteran's 30 percent rating for asthma and granted service connection for allergic rhinitis without polyps, as secondary to his service-connected deviated septum disability, at a noncompensable rating under Diagnostic Code 6522, effective March 4, 2010. In March 2013, the RO continued the ratings for asthma and allergic rhinitis without polyp and granted service connection for nose disfigurement, to include pollybeak deformity and collapse of internal and external nasal valves, as secondary to service-connected deviated septum disability, at a noncompensable rating under Diagnostic Codes 6504-7800, effective March 4, 2010. The Veteran has not entered a notice of disagreement with respect to such rating decisions and, therefore, such issues are not properly before the Board. The Board also notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Further, the Veteran's VBMS file does not contain any documents at this time. Finally, the Board acknowledges that additional evidence consisting of VA treatment records and January 2013 VA examination reports were associated with the record after the issuance of the July 2012 supplemental statement of the case and have not been considered by the agency of original jurisdiction (AOJ) in connection with the issue on appeal. However, the Board finds no prejudice to the Veteran in proceeding with a decision at this time as such records contain findings referable to his deviated nasal septum that are duplicative of those previously of record and considered by the AOJ. Therefore, such newly associated records are irrelevant to the issue on appeal and a remand for AOJ consideration of such evidence is not necessary. FINDINGS OF FACT 1. For the entire appeal period, the Veteran is in receipt of the maximum schedular evaluation under the VA rating schedule for a deviated nasal septum, which contemplates obstruction of both nasal passages. 2. The Veteran is separately compensated for chronic sinusitis, chronic rhinitis, and nose disfigurement, to include pollybeak deformity and collapse of internal and external nasal valves, associated with his deviated nasal septum. 3. The rating schedule is adequate to evaluate the Veteran's deviated nasal septum and there is no evidence of marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for status post-surgery for deviated nasal septum are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6502 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed from the initially assigned rating for his deviated nasal septum from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess/Hartman, 19 Vet. App. at 490. In this case, the Veteran's claim for service connection for deviated nasal septum was granted and an initial rating was assigned in the March 2009 rating decision on appeal. Therefore, because the Veteran has appealed the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Under the VCAA, VA also has a duty to assist the claimant in the development of the claims by procuring pertinent records and in providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain or to assist the Veteran in acquiring all relevant records pertinent to the matter herein decided and providing examinations. In this regard, the Veteran's service treatment records, VA treatment records, and private medical records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in January 2009 and June 2012. With respect to the January 2009 examination, the Veteran has alleged it is inadequate for the following reasons: (1) the examiner incorrectly stated that the Veteran's septum deviated to the left; (2) the examiner failed to perform an internal examination of the Veteran's nose and perform a "clinical test" to determine the degree of obstruction for each of the Veteran's nostrils; and (3) the examiner failed to address the Veteran's nose deformity. Whether the Veteran's septum deviates to the left of right is irrelevant to assess the severity of his disability under Diagnostic Code 6502, which concerns only the degree of obstruction in the nasal passages, either one side or both. Accordingly, the examiner's alleged reference to a the deviation of the Veteran's septum to the left is harmless error. The Veteran's assertion that the examiner failed to properly conduct a clinical test and internal examination of his nose carries no probative weight as he lacks the medical training and expertise to render an opinion on matters involving such complex medical questions and determinations as to how to conduct a medical examination and what diagnostic tests to perform. See Woehlaert v. Nicholson, 21 Vet. App. 456 (although a lay person is competent in certain situations (i.e., to provide a diagnosis of a simple condition), a lay person is not competent to provide evidence as to more complex medical questions) (2007). Finally, the Veteran has been awarded a separate rating for his nasal deformity/scarring and such issue is not before the Board on appeal, so any argument concerning erroneous oversight by the examiner of such condition is unavailing. Accordingly, the Board finds that the January 2009, as well as the June 2012, VA examination is adequate to evaluate the Veteran's service-connected deviated septum disability as they include an interview with the Veteran, a review of the record, and a physical examination, addressing the relevant rating criteria. Based upon the foregoing, the Board finds that the January 2009 and June 2012 VA examinations are adequate to adjudicate the Veteran's initial rating claim, and no further examination is necessary for this purpose. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits 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 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability (or the same manifestation of a disability) under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 6502 for status post-surgery for deviated nasal septum. He alleges that such disability is more severe than the currently assigned rating and results in sinusitis, rhinitis, and nasal deformity/scarring. Therefore, the Veteran claims that he is entitled to an initial rating in excess of 10 percent for such disability. Under 38 C.F.R. § 4.97, Diagnostic Code 6502, a 10 percent disability rating is warranted for a traumatic deviated septum with 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side. A 10 percent evaluation is the only disability rating available under this diagnostic code. The Board observes that the Veteran has clearly met the schedular requirements for assignment of the maximum 10 percent evaluation under Diagnostic Code 6502. Specifically, at the January 2009 VA examiner noted that the Veteran had trouble breathing through his nose which worsened with age and found that the Veteran's left nostril was obscured at about 50 percent and the ala of his right nostril closed the right nasal opening by about 50 percent. The June 2012 VA examiner also concluded that the Veteran suffered from at least 50 percent obstruction of the nasal passages on both sides due to traumatic septal deviation. Additionally, a private physician found that the Veteran had both structural and non-structural nasal obstruction which resulted in 100 percent obstruction of the left nasal passage by nasal stenosis/nasal valve collapse and over 80 percent obstruction of the right nasal passage by septal deviation and septal spur. See August 2009 Letter of Dr. D. G. Becker. Based on the foregoing evidence, the Veteran has been assigned a rating of 10 percent under Diagnostic Code 6502, which is the maximum schedular evaluation available for deviated septum under VA's rating schedule. Moreover, the Veteran is separately compensated for chronic sinusitis, chronic rhinitis, and nose disfigurement, to include pollybeak deformity and collapse of internal and external nasal valves, associated with his deviated nasal septum, under Diagnostic Codes 6512, 6522, and 6504-7800, respectively. The evidence of record relevant to this appeal does not support the assignment of a diagnostic code other than 6502 or those already assigned, as the Veteran has not demonstrated other compensable respiratory, or other, pathology associated with the underlying deviated nasal septum. In reaching the aforementioned conclusions, the Board has considered the Veteran's contentions with respect to the nature of his service-connected deviated nasal septum disability and notes that his lay testimony is competent to describe certain symptoms associated with such disability, to blocked nasal passages. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating that has been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of such service-connected disability. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected deviated nasal septum disability. The Board has considered whether staged ratings are appropriate for the Veteran's service-connected deviated nasal septum disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. See Fenderson, supra. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App at 115-16. The Board finds that the symptoms associated with the Veteran's deviated nasal septum disability, as described above, are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability. The Board further finds that the Veteran's complaints of nasal blockage associated with his deviated nasal septum disability are contemplated by the schedular rating criteria. Specifically, the rating schedule provides for ratings obstructed nasal passages. Moreover, while the Veteran has alleged that such disability results in additional symptomatology of sinusitis, rhinitis, and nasal deformity/scarring, he has been assigned separate ratings under Diagnostic Codes addressing such symptomatology. Moreover, there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun, 22 Vet. App at 115-16; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability. In the instant case, the Veteran has not alleged, and the evidence does not show, that his deviated septum disability renders him unemployable. The June 2012 VA examination is silent as to reports of unemployment by the Veteran, but examiner indicated that the Veteran's sinus condition does not his impact his ability to work. Moreover, although the January 2009 VA examination noted that the Veteran was currently unemployed, the report did not indicate, nor has the Veteran alleged, that his unemployed status was related in any way to his deviated septum disability. The fact that he was unemployed at the time of his January 2009 VA examination does not equate to unemployability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the fact that a Veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability; the relevant question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Therefore, the issue of a TDIU has not been raised, and no further consideration of such is necessary. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 10 percent for his deviated nasal septum disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. ORDER An initial rating in excess of 10 percent for status post-surgery for deviated nasal septum is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs