Citation Nr: 1800724 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-13 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a compensable disability rating for facial trauma status post multiple surgeries with residual effects of neuropathy in the upper lip and nose tip. 2. Entitlement to a compensable disability rating for deviated nasal septum, including left and right nasal nares, prior to March 30, 2016. REPRESENTATION Appellant represented by: John R. Worman, Attorney at Law ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In April 2016, in response to the November 2015 Board remand, the RO increased the rating for the deviated septum claim to 10 percent from March 30, 2016, continued a noncompensable rating for the facial neuropathy claim, and returned both claims to the Board for appellate review. The 10 percent rating for the period from March 30, 2016 is the maximum rating available for the Veteran's deviated septum disability; as such, this period of time is not on appeal. The decisions otherwise constitute partial grants of the benefits sought on appeal. The issues therefore remain on appeal and are for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The issue of entitlement to a compensable disability rating for facial trauma status post multiple surgeries with residual effects of neuropathy in the upper lip and nose tip is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Viewing the evidence most favorably for the Veteran, the Veteran's deviated septum was characterized by bilateral obstruction of the nasal passages of at least 50 percent since August 3, 2011. CONCLUSION OF LAW Prior to March 30, 2016, the criteria for a 10 percent rating for a deviated septum disability have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.97 Diagnostic Code 6502 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Board acknowledges that a claimant may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart, 21 Vet. App. 505. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran is currently rated at 10 percent for a deviated septum disability to include both left and right nasal nares from March 30, 2016, and at a noncompensable rate prior to that date. As mentioned above, 10 percent is the maximum rating under Diagnostic Code 6502, as such the rating prior to March 30, 2016 is on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was rated at a noncompensable rating prior to March 30, 2016 because DC 6502 does not have a zero percent rating available and the Veteran did not meet the requirements for the compensable rating. 38 C.F.R. § 4.31. After a thorough review of the record, the Board finds that the evidence supports a rating of 10 percent, but no higher, from August 3, 2011, but no earlier, for the Veteran's deviated septum disability to include both left and right nasal nares. Under Diagnostic Code (DC) 6502, a deviated nasal septum will be rated as 10 percent disabling when it is manifested by a greater than fifty percent obstruction of both nasal passages or complete obstruction of one nasal passage. 38 C.F.R. § 4.97. This is the only rating available under this DC. Since the March 2014 rating decision, the Veteran is service-connected for the deviated septum disability to include both left and right nasal nares from December 1, 2005, the day after discharge from active duty service. The Veteran sustained damage to his face and nose during an improvised explosive device explosion in December 2004. He recited that his nose detached from his face but he retrieved it and it was later surgically reattached. The Veteran's service treatment records (STRs) document several days of surgery related to his nose and face. December 13, 2004 records show the Veteran had bilateral nasal trumpets inserted in his nose. The Veteran was reviewed by a medical evaluation board which noted that the Veteran had nasal stenosis and nasal obstruction right greater than left side. These notes seem to indicate that both left and right sides of the Veteran's nose were affected, but the right side was affected more greatly than the left side. The Veteran was afforded a VA examination in February 2006. The examiner diagnosed right nasal nare obstruction and noted that the Veteran's right nasal passage was at least 50 percent obstructed and the left side was obstructed at an amount greater than zero but less than 50 percent. At an August 3, 2011 medical appointment, the Veteran's treatment provider noted "nose with very narrow nasal passages and clear mucus." The treatment provider assessed a deviated nasal septum and referred the Veteran to an otolaryngologist for "trouble breathing through the nose secondary to scar tissue that has progressing [sic] over the past 6 months." Ultimately the Veteran underwent another nasal surgery on May 17, 2012. The Veteran was afforded a VA examination on May 26, 2012. The examiner did not diagnose any nasal disabilities. The examiner denied that the Veteran had a deviated septum, and thus did not complete the follow up question to determine if and how much the nasal passages were obstructed. In an addendum questionnaire, the examiner stated that there was no evidence of a left side nasal condition. The Veteran reported at his March 2016 VA examination that prior to the nasal surgery he had restricted nares on both sides and the May 2012 nasal surgery had helped "modestly." The Veteran reported continued sensation of partial obstruction of both sides of nares, right more than the left, and that he is unable to blow his nose well to the point of manually removing debris from the nose. The examiner noted that each nasal passage was at least 50 percent obstructed and diagnosed a deviated septum. Although the August 2011 medical treatment provider did not estimate the amount to which each of the Veteran's nasal passages was obstructed, the examiner did indicated that both passages were "very narrow." The Veteran should not be penalized because an examiner did not utilize a metric which would be of probative value in a future claim. Thus, since the February 2006 VA examiner determined that only one nasal passage was at least 50 percent blocked, and neither were completely blocked, there is evidence that the Veteran did not meet the requirements for a compensable rating at that time under DC 6502. However, reading the evidence to favor the Veteran's position, the evidence shows that the Veteran's obstructed nasal condition worsened over time, to the point that he underwent surgery again in May 2012. The evidence from the medical appointment on August 3, 2011 documents this worsening status. Although the May 2012 VA examiner noted no deviated septum post-surgery, and thus did not evaluate nasal obstruction of either nasal passage, the Veteran has competently reported that he continued to have difficulty breathing through his nose, which culminated in the March 2016 VA examiner determining that the Veteran did have a more than 50 percent obstruction of each nasal passage. Therefore, resolving doubt in the Veteran's favor, the Board finds that the medical evidence of record supports a disability evaluation of 10 percent prior to March 30, 2016, for the Veteran's deviated septum condition of both left and right nasal nares. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to a disability rating of 10 percent for deviated nasal septum, including left and right nasal nares prior to March 30, 2016 is granted. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Despite the AOJ's actions to obtain a new examination for the Veteran's facial nerve claim, the Board finds that there has not been substantial compliance with its November 2015 remand directives, necessitating further remand of this matter. The November 2015 Board remand directed that an examiner discuss the evidence of record dated in August 2011 which states that the Veteran had "paralysis of the Seventh Cranial nerve... causing an asymmetrical smile." The Board wanted the examiner to elaborate on whether this impairment would be considered an incomplete or complete paralysis, and to what degree if incomplete, either moderate or severe. Although the March 2016 VA examiner made note of the existence of this August 2011 medical record, the examiner did not elaborate on what severity, if any, the notation regarding the asymmetrical smile and paralysis represented, instead limiting his opinion to state that the Veteran did not currently have any seventh cranial nerve abnormalities. In view of the above-noted deficiency, the Board finds that the medical evidence of record is still not sufficient to resolve the claims, and that, regrettably, another remand of this matter to obtain an adequate opinion-based on full consideration of the Veteran's documented history and assertions, and supported by completely, clearly-stated rationale-is needed to resolve the claim for an increased rating for the facial condition related to the seventh cranial nerve. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum medical opinion for the March 2016 VA examination for the Cranial nerves. If possible, the opinion should be made by the March 2016 VA examiner. If that examiner is not available, then another qualified VA medical examiner may make the opinion. The opinion must discuss the relevant medical evidence of record, to specifically include the August 2011 treatment note which states that the Veteran had "paralysis of the Seventh Cranial nerve... causing an asymmetrical smile." The examiner must answer the following question: Does anything in the Veteran's medical history, to specifically include the August 2011 treatment note documenting "paralysis of the Seventh Cranial nerve... causing an asymmetrical smile," indicate that the Veteran at any time had a condition of the cranial nerves which could be categorized as moderately incomplete, severely incomplete, or complete? The claims file along with any other pertinent evidence contained in the VA electronic claims file should be made available to the examiner. A complete rationale for all opinions is required. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible. 2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claim must be re-adjudicated. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs