Citation Nr: 1803522 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 09-49 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for deviated nasal septum (residuals of facial trauma). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1977 to January 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. In August 2010 and February 2017, this matter was remanded for additional development. [An interim (November 2017) rating decision granted service connection for retro-orbital headaches associated with deviated nasal septum, rated 10 percent, effective February 28, 2007. The Veteran has not expressed disagreement with that decision, and the matter of the rating for headaches is not for consideration herein.] The record raises questions of service connection for rhinitis and sinusitis (as secondary to the deviated nasal septum); the Veteran reports symptoms of those disabilities on examinations for his nasal septum deviation. Notably, a March 2017 VA examination did not find sinusitis, but allergic rhinitis was diagnosed. The agency of original jurisdiction (AOJ) has not adjudicated the matter of service connection for rhinitis, and the Board does not have jurisdiction in the matter. It is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's traumatic septal deviation has been manifested by [more than] 50 percent obstruction of nasal passages on both sides and secondary headaches (which are separately rated). CONCLUSION OF LAW A rating in excess of 10 percent for deviated nasal septum is not warranted. 38 U.S.C.§§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.97, Diagnostic Code (Code) 6502 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in July 2007, May 2008, and November 2008. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not raised any issues regarding VA's duties to notify and assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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 duty to assist argument). Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). "Staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Traumatic deviation of the nasal septum is rated under Code 6502, which provides for a (maximum) 10 percent rating with 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. On January 2006 VA examination, the Veteran reported he sustained a nasal fracture from being beaten in a riot in 1978; the broken nose was never repaired. He reported chronic nasal stuffiness requiring him to breathe through his mouth. He reported frontal headaches associated with the broken nose, recurrent sinus infections, and rhinitis associated with seasonal allergies. He reported having nasal congestion, excess nasal mucus, and daily purulent nasal discharge and headaches. He reported constant difficulty breathing through his nose and shortness of breath with mild exertion. On physical examination, there was 100 percent left nasal obstruction, 80 percent right nasal obstruction, septal deviation due to trauma, permanent hypertrophy of the turbinates due to bacterial rhinitis, and deformity of the nose due to bony enlargement from the fracture injury. X-rays found that nasal bones appeared to be intact. On September 2007 VA examination, the Veteran reported having sinus headaches with sinusitis requiring antibiotics. He had interference breathing through his nose, hoarseness of voice and crusting. He reported constant sinus congestion. He was being treated with Claritin and had used Flonase in the past. He reported being impaired at times of acute flares of sinusitis. On physical examination, the examiner found, without any detail regarding blockage of nasal passages, septal deviation, or bony enlargement, the Veteran's nose and sinuses to be "normal". X-rays of the nasal bone were normal and unremarkable. At the May 2010 Board hearing, the Veteran testified that he experienced symptoms of nasal obstruction, and that he had headaches 1 to 3 times per week due to this disability. In the August 2010 remand, the Board noted that pertinent findings on 2006 and 2007 VA examinations were at such wide variance that the reports of those examinations could not be reconciled. The matter was remanded for an examination to address the medical questions remaining. On October 2010 VA examination (pursuant to the Board's August 2010 remand), the Veteran reported chronic nasal stuffiness requiring him to breathe through his mouth, frontal headaches associated with the broken nose, and recurrent runny nose since the initial injury. He reported he used over-the-counter nose spray once daily. He reported shortness of breath [for which service connection was denied in October 2015, and that matter is not on appeal]. On physical examination, there was 80 percent left nasal obstruction, 80 percent right nasal obstruction, septal deviation due to trauma, and deformity including bony enlargement from the original fracture. The examiner noted a severely deviated septum to the right with enlarged turbinates on the left, minimally depressed left nasal bone with bony hump on the right side greater than the left, and positive ptotic tip with acute nasolabial angle. X-rays of nasal bones showed absence of the distal tip of the nasal bone and no significant soft tissue abnormalities. The diagnosis was nasal septum deviation. The examiner noted that on clinical examination, the Veteran had a severely deviated septum to the right with enlarged turbinates on the left, minimally depressed left nasal bone with bony hump right greater than left, and positive ptotic tip with acute nasolabial angle. On August 2015 VA examination, the Veteran reported that he sustained a nasal fracture in service (which was not repaired). He reported headaches that occurred mostly on awakening. The pain was bilateral and worsened with physical activity. Because he was incarcerated at the time of examination, X-rays could not be obtained to look for other causes of nasal complaints. On physical examination, the examiner noted that due to traumatic septal deviation there was at least 50 percent obstruction of nasal passages on both sides; there was not complete obstruction on either side; and there was no loss of part of the nose or other scars of the nose exposing both nasal passages, causing loss of part of one ala, or causing other obvious disfigurement. The diagnosis was deviated nasal septum (traumatic). The Board's February 2017 remand noted that varied distinct symptoms of the Veteran's disability may be separately rated, and found the opinions of record to be inadequate for rating purposes and not complaint with the previous remand instructions, and remanded for corrective action. On March 2017 VA examination, the Veteran reported that he was unable to breathe through his nose, and so breathes through his mouth; he also reported left facial and retro-orbital pain. On physical examination, it was noted that there was not at least 50 percent obstruction of nasal passage on both sides due to traumatic septal deviation; but there was complete obstruction on the left side due to traumatic septal deviation; there was not complete obstruction on the right side due to traumatic septal deviation. There were no scars or other pertinent physical findings, complications, conditions, signs or symptoms related to the conditions diagnosed. The Veteran did not have loss of part of the nose or other scars of the nose exposing both nasal passages, causing loss of part of one ala, or causing any other disfigurement. Nasal and sinus X-rays were negative. The examiner noted that the Veteran has left deviated nasal septum of traumatic etiology and, after review of the nasal bone and sinus X-ray, opined that the left-sided pain is due to deviated nasal septum and not due to sinusitis, because there is no radiographic evidence of current sinusitis; a nasal bone X-ray showed no evidence of prior nasal bone fracture. The examiner opined that the functional impact of difficulty breathing through the nose because of the deviated nasal septum is that the Veteran has to breathe through the mouth. The examiner indicated that the Veteran is having left facial pain and left retro-orbital headache because of the deviated septum that is impacted against the inferior turbinate; the diagnosis of traumatic septal deviation, post left nostril injury, was unchanged. The diagnoses included allergic rhinitis, deviated nasal septum, and bilateral hypertrophy of inferior turbinates. The examiner noted the findings on the January 2006 (nasal obstruction deviated nasal septum with enlarged turbinate and bony nasal lump) and September 2007 (normal exam of head, eyes, nose, and throat) examination reports, his own findings of left sided deviation impinging on hypertrophied left-interior turbinate and bony hump present on the nasal dorsum, and the Veteran's hearing testimony regarding his symptoms (and the findings on the October 2010 and August 2015 examination reports as well). The examiner concurred with the findings in January 2006 because the current examination findings were similar; there was no current diagnosis of sinusitis. The examiner noted that the Veteran has left deviated nasal septum of traumatic etiology. After review of the nasal bone and sinus X-ray, the examiner opined that the Veteran's left-sided pain is due to deviated nasal septum and not due to sinusitis because there is no radiographic evidence of current sinusitis. The examiner noted that nasal bone X-rays show no evidence of prior nasal bone fracture, and that the Veteran reports daily mild headaches lasting all day. The AOJ requested an addendum opinion for clarification of the residuals of rhinitis and headaches, to include an opinion as to whether these residuals are at least as likely as not due to or caused by the service-connected deviated nasal septum, nasal trauma. In a September 2017 addendum medical opinion based on review of the record, the consulting physician (an otolaryngologist) noted there was no evidence of sinusitis, and opined that the Veteran's left facial pain and left retro-orbital headaches are due to the deviated septum impacting against the inferior turbinate. For the established diagnosis of traumatic septal deviation, post left nostril injury, there was no change in the diagnosis. Based on the examination and addendum opinion a November 2017 rating decision granted service connection for retro-orbital headaches associated with traumatic deviated nasal septum, separately rated 10 percent, effective February 28, 2007, the date of the Veteran's claim for an increased rating (as was noted above, the veteran has not disagreed with that rating, and it is not for consideration in this appeal). Additional VA records reflect symptomatology largely similar to that reported above. The Veteran has submitted statements that describe his difficulty breathing (which is not service-connected) and headaches (which are). The 10 percent rating assigned under Code 6502 for the Veteran's nasal trauma residuals of deviated nasal fracture is the maximum schdular rating for such pathology under that Code. Accordingly, the analysis turns to whether a rating in excess of 10 percent may be warranted, either on a schedular basis (to account for symptoms and impairment not encompassed under Code 6502) or whether there are associated symptoms, pathology, or impairment not encompassed by any schedular criteria, warranting referral for extraschedular consideration. At the outset, the Board notes that the AOJ has found that the Veteran's reports of headaches are manifestations of his deviated nasal fracture, and warrant a separate 10 percent rating (which is not at issue herein). The Veteran has also reported nonincapacitating episodes of sinusitis. A VA examination (with addendum advisory opinion by an otolaryngologist based on review of the record) found that the Veteran is not shown to have sinusitis (the disease is not objectively shown), and sinusitis has not been service-connected. Therefore, rating the disability that is on appeal (deviated nasal septum) under the criteria for rating sinusitis would be inappropriate. The record does show a diagnosis of allergic rhinitis (but that diagnosis has not been etiologically related to the Veteran's deviated nasal septum, and rating the disability under the Codes 6522-6524 criteria for rating the various types of rhinitis would be inappropriate). [As was noted above, the Veteran's arguments raise an unadjudicated claim of service connection for allergic rhinitis, and that matter was referred above to the AOJ for their initial consideration.] The Board notes the lay statements submitted by the Veteran in support of this claim. Those statements detail the types of problems that have been attributed to the disability at issue (but also describe symptoms that have not been related to the nonservice-connected co-existing disabilities). The symptoms described by the Veteran that have been attributed to the deviated nasal septum are consistent with the criteria for the 10 percent rating under Code 6502 (or the separate rating for headaches under Code 8199-8100, which is not at issue herein. Accordingly a rating in excess of 10 percent for the deviated nasal septum or referral for consideration of an extraschedular rating (under 38 C.F.R. § 3.321(b)) is not warranted. ORDER A rating in excess of 10 percent for deviated nasal septum is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs