Citation Nr: 1623790 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 09-44 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for allergic rhinitis, with a deviated nasal septum. 2. Entitlement to an initial rating in excess of 10 percent for the postoperative residuals of a fracture of the left first toe with a scar. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1999 to January 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a from a May 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board remanded this case in July 2014 for further development. In a November 2014 rating decision, the RO granted an initial 10 percent schedular rating for the Veteran's service-connected allergic rhinitis with deviated septum and an initial 10 percent schedular rating for his service-connected postoperative residuals of a fracture of the left first toe with a scar, both effective January 26, 2008. However, as the increases did not constitute a full grant of the benefits sought, the Veteran's claims for increased disability ratings remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's service-connected allergic rhinitis, with deviated septum, has been manifested by recurrent polyps. 2. There is no evidence of record which establishes the postoperative residuals of a fracture of the left first toe with a scar are more than moderate. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent disability rating for allergic rhinitis, with deviated septum have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Codes (DC) 6502, 6522 (2015). 2. The criteria for a disability rating in excess for 10 percent for service-connected postoperative residuals of a fracture of the left first toe with a scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code (DC) 5284 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In this case, the Veteran is challenging initial disability ratings assigned following grants of service connection. 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, 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, 490-91 (2006). In addition, the duty to assist the Veteran has been satisfied in this case. All available relevant evidence pertinent to the issues on appeal is in the claims file, including service treatment records, VA treatment records and the Veteran's statements in support of his claim. The Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing reflects that he has indicated the existence of any relevant evidence that has not been obtained or requested. VA examinations with respect to the issues on appeal were obtained in August 2014, and September 2014. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA examination reports to be adequate. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected disabilities under the applicable rating criteria. Additionally, the VA foot examination considered pain, swelling, weakness and excess fatigability in the examination, as required under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations and opinions with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board also finds that there was substantial compliance with the August 2014 Board remand directives. The Veteran underwent VA examinations in August and September 2014 to evaluate his service-connected allergic rhinitis and left first toe conditions. The VA examinations, as indicated, were adequate to evaluate the disabilities. Additional VA treatment records were also obtained. The matter was readjudicated in a May 2015 rating decision. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). II. Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Allergic rhinitis with deviated septum The RO has assigned an initial 10 percent disability rating for the Veteran's service-connected allergic rhinitis with deviated septum, pursuant to 38 C.F.R. § 4.97, Diagnostic Codes (DC) 6502 and 6522. Under DC 6502, a 10 percent rating applies for septum, nasal, deviation of: Traumatic only, with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. DC 6502 does not provide a higher disability rating for this condition. Pursuant to DC 6522, a 10 percent rating applies where the evidence demonstrates allergic or vasomotor rhinitis, without polyps, but with either greater than 50 percent obstruction of the nasal passage on both sides or with complete obstruction on one side. A 30 percent rating applies where the evidence demonstrates the presence of polyps. 38 C.F.R. § 4.97, DC 6522. The Veteran's service treatment records show that he underwent nasal surgery while in service in 2002. Treatment records from the VA Medical Center (VAMC) in Long Beach, California show the Veteran underwent a subsequent surgery in May 2008, which removed polyps from his sinuses. Treatment records from VAMC Long Beach reveal the Veteran underwent a nasal polypectomy in September 2013. The Veteran underwent a VA examination in May 2009. The Veteran reported being diagnosed with allergic rhinitis with nasal deviation to the left and that the condition had existed for nine years. The Veteran also reported experiencing constant sinus problems, but that the episodes are not incapacitating. The Veteran reported interference with breathing through his nose, and purulent discharge from the nose with crusting. He reported no hoarseness of the voice and no pain. Specifically, the Veteran complained of constant nasal congestion, crusting and foul smelling mucus drainage from the nose. He reported undergoing a total of three surgeries for sinusitis and nasal deviation, in 2000, 2005 and 2008. The Veteran stated that he uses flunisolide to alleviate symptoms and has a good response. The examiner noted there was no change in the diagnosis of allergic rhinitis with nasal deviation to the left. The Veteran underwent a VA examination in September 2014. The examiner noted in the Veteran's medical history that the Veteran was diagnosed with nasal congestion, rhinorrhea in 2002 while he was in service. The examiner noted that the Veteran was seen by his military physician who diagnosed him with nasal polyps, status post endoscopic surgery in 2002, without significant improvement. The examiner also noted that after active duty the Veteran was noticed to have recurrent nasal polyps and underwent revision endoscopic sinus surgeries in 2008 and 2011. At the time of the VA examination, the Veteran complained of constant nasal congestion. The examiner's report of his physical examination of the Veteran revealed a greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis; but was negative for nasal polyps. A review of the Veterans treatment records from VAMC Long Beach reveals that he underwent a fourth nasal polypectomy in September 2013. This surgery was not considered in the September 2014 VA examination report and opinion. The evidence of record is consistent with a higher 30 percent rating for service-connected allergic rhinitis with deviated septum. In making this determination, the Board has considered the medical and lay evidence of record. Specifically, the evidence shows that the Veteran's condition has been manifested by recurrent nasal polyps since its onset in service. The Veteran has undergone at least four surgeries to remove these polyps in an attempt to obtain relief from this condition. The Board must consider all other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Therefore, the Board has considered whether a higher, 50 percent, rating is warranted under the rating criteria for DC 6510, for the Veteran's service-connected sinusitis, in order to appropriately compensate him for his symptoms. See 38 C.F.R. § 4.97. Although the Veteran is service-connected for sinusitis, there is no indication that the Veteran has undergone radical surgery with chronic osteomyelitis, or; experiences near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, symptoms which warrant a 50 percent evaluation as set forth the pertinent rating criteria. See 38 C.F.R. § 4.97, Diagnostic Code 6510. The September 2014 examiner continued the Veteran's prior, separate diagnosis of chronic sinusitis, noting it is only detected by imaging studies. The Veteran's symptoms do not meet the criteria for a 50 percent evaluation pursuant to DC 6510. Therefore, the Veteran's allergic rhinitis with deviated septum will continue to be rated as allergic rhinitis because his symptoms more closely approximate those described in the rating criteria for this condition. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Accordingly, the Board finds that the evidence supports an initial disability rating of 30 percent, but no higher, for allergic rhinitis with deviated septum. 38 C.F.R. § 4.3. Postoperative residuals of a fracture of the left first toe with a scar The Veteran's postoperative residuals of a fracture of the left first toe with a scar has been assigned an initial disability rating of 10 percent under DC 5284, Foot injuries, other, of 38 C.F.R. § 4.71a. Pursuant to the criteria for DC 5284, a 10 percent evaluation is assigned for a moderate foot injury; a 20 percent evaluation is assigned for a moderately severe foot injury and a 30 percent evaluation is assigned for a severe foot injury. A 40 percent evaluation is assigned where there is an actual loss of the foot. The Board must consider and discuss whether a disability should be rated under any potentially applicable alternative diagnostic codes. A review of the Diagnostic Codes relating to toe injuries reveals that there is no specific code listed in the schedule for the Veteran's condition. Here, potentially applicable are the DCs specifically applicable to the foot, and to the toes in particular, as set forth under 38 C.F.R. § 4.71a include: 5280 Hallux valgus, unilateral Operated with resection of metatarsal head 10 Severe, if equivalent to amputation of great toe 10 5282 Hammertoe: All toes, unilateral without clawfoot 10 Single toes 0 5284 Foot injuries, other: Severe 30 Moderately Severe 20 Moderate 10 The diagnostic code for foot injuries, other, is the only diagnostic code that contemplates more severe symptoms and compensates the Veteran for such symptoms. Therefore, DC 5284 is the code used to evaluate the Veteran's service-connected condition because it most closely approximates his disability. Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran's postoperative residuals of a fracture of the left first toe with a scar does not more nearly approximate the rating criteria at a higher disability level. Pursuant to DC 5284, the evidence demonstrates a moderate, but not a moderately severe, disability. The Veteran underwent a VA examination in May 2009. The Veteran reported being diagnosed with status post fracture of left first toe with surgical open reduction internal fixation (ORIF) in 2007. The underlying injury occurred when a heavy tow bar fell on his foot fracturing the left great toe. The Veteran reported experiencing pain in his left great toe approximately twice a month lasting for approximately one day. He reported that the pain travels up to his ankle. He described the pain as aching and sticking. On a scale from 1 to 10 (10 being the worst pain), the Veteran stated his pain level is a 5. He reported that the pain could be elicited by cold weather and was relieved either spontaneously or with rest. The Veteran was able to function without medication when he had pain. He described experiencing stiffness when the foot was at rest, without any symptoms of pain, weakness, swelling or fatigue. The Veteran reported that he was not receiving any treatment for this condition. The examiner noted that the Veteran's left great toe scar was not painful. In an August 2014 VA examination, the Veteran complained of experiencing pain and numbness in left toes 2 through 5 when he pushed off on his left foot. The examiner noted pain on examination that resulted in a disturbance of locomotion on the left foot. Physical examination revealed slight hallux "varus" to the left great toe. The examiner noted that there was no pain, weakness, fatigability, or incoordination that significantly limited functional ability of the left foot during flare-ups or on repeated use. The Veteran reported that he did not use any assistive devices to help with locomotion. Imaging studies of the foot showed no degenerative or traumatic arthritis. The examiner noted that the scar on the Veteran's left great toe was not painful. The examiner also noted that this condition did not impact the Veteran's ability to perform any type of occupational task, such as standing, walking, lifting or sitting. Treatment records from the VA Medical Center (VAMC) Loma Linda, California support the findings of the September 2014 VA foot examination. In December 2013, the Veteran complained of intermittent sharp shooting pains on the plantar first metatarsal head that radiates to the lesser toes. Physical examination revealed no pain with range of motion in the left first toe. The Veteran was fitted for orthotics in March 2014. The Board has reviewed all the evidence for the appeal period and finds that an initial rating in excess of 10 percent is not warranted for the Veteran's postoperative residuals left first toe with scar. The Board is mindful that a claim for a total disability rating based on individual unemployability (TDIU) is part of an appeal from an assigned disability rating when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here, a claim for TDIU is not raised as the evidence of record indicates that the Veteran is employed. As such, there is no evidence that the Veteran is unemployable due to his service-connected disability. ORDER An initial disability rating of 30 percent for service-connected allergic rhinitis is granted, subject to the regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess of 10 percent for service-connected postoperative residuals left great toe with scar is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs