Citation Nr: 1723294 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 12-07 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable rating for residuals of a nasal fracture from August 1, 2009. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from June 1987 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Atlanta, Georgia Regional Office (RO) of the United States Department of Veterans Affairs (VA). The RO reduced the disability rating of the Veteran's residuals from nasal fractures from 10 percent to noncompensable. The Veteran subsequently filed a Notice of Disagreement (NOD) requesting not only a return to his previous 10 percent rating but also an increased rating. This case then came to the Board in December 2013 and was remanded for the RO to issue a Statement of the Case (SOC) explaining why the Veteran's rating was reduced. In the December 2013 remand, the Board stated if the Veteran disagreed with the SOC he could perfect an appeal by filing a VA Form 9. The RO issued an SOC in April 2016 and the Veteran did not subsequently file an appeal. Therefore, the only issue on appeal before the Board is the Veteran's request to increase his rating from noncompensable effective August 1, 2009. FINDING OF FACT From August 1, 2009, the Veteran did not suffer from 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. CONCLUSION OF LAW From August 1, 2009, criteria for a rating higher than noncompensable for rating have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.97, Diagnostic Code 6502 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete VA application, VA must notify the claimant of any information, medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). After filing an application for an increased rating the Veteran received a letter from VA in July 2008 explaining the evidence necessary to show his disability increased in severity. Therefore, the Board fulfilled its duty to notify. The Board also finds VA's duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Further, VA obtained a VA examination in December 2011. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds this examination was adequate as the examiner provided a detailed explanation of the Veteran's disability and provided sufficient analysis to support her opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board finds that VA has satisfied its duty to assist. II. Increased Rating Residuals of a Nasal Fracture Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.20 (2016). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2016). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of evidence in light of the entirety of the record. The Veteran's residuals of a nasal fracture are currently evaluated under Diagnostic Code 6502, deviation of the nasal septum. 38 C.F.R. § 4.97 (2016). Under this diagnostic code the maximum rating is 10 percent. A 10 percent evaluation is warranted with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The Veteran indicated his nose is painful to the touch where he was injured. He experienced limited breathing due to only being able to use one nostril airway. The Veteran also stated he experienced drainage in his ears due to one of his nasal passages being closed. At the December 2011 VA examination the examiner found that there was not greater than 50 percent obstruction of nasal passage on both sides. The examiner noted a finding of 75 percent right nasal blockage. The examiner also noted that the Veteran's disability did not cause chronic laryngitis, vocal cord paralysis or other pharyngeal or laryngeal conditions. The examiner also did not find any malignant or begin neoplasm or metastases. Additionally, the examiner found that the Veteran's disability did not affect his ability to work. Based on the VA examination the Board does not find an increased rating under Diagnostic Code 6502. The Board considers the Veteran's lay testimony that one of his nasal passages is blocked. However, the Veteran's lay opinion is contradicted by the medical evidence of record which shows that his right nostril is only 75 percent blocked. The Veteran is competent note that he experiences nasal blockage and report about how the blockage affects his daily life and his breathing, but in this case, because he lacks the requisite medical training or other relevant experience, he is not competent to opine that his nasal passage is completely blocked. Thus, the Board assigns the medical opinion higher probative value than the Veteran's opinion. Consequently, because the Veteran's nasal passage is not completely blocked an increased rating is not warranted under Diagnostic Code 6502. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's residuals of a nasal fracture does not more closely approximate a compensable rating under the applicable Diagnostic Code. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. Finally, TDIU is not warranted because the Veteran does not contend, and the evidence does not show, that his residuals from his nasal fracture render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER From August 1, 2009, a rating higher than noncompensable is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs