Citation Nr: 1803740	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  16-02 847	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an increased initial disability rating for nasal septal deviation status post septoplasty with residual deformities, currently rated as noncompensable prior to August 22, 2013, 10-percent disabling from August 22, 2013 to January 27, 2014, noncompensable from January 28, 2014 to June 4, 2017, and 10-percent disabling from June 5, 2017 to the present.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

T. Minot, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from October 1981 to October 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified before the undersigned Veterans Law Judge at an August 2016 hearing conducted at the RO.  Due to technical difficulties, a transcript of this hearing is not available for review.  The Veteran was afforded the opportunity to appear at a new hearing; however, in November 2016 he waived his right to a new hearing and submitted a written statement instead.

In April 2017, the Board remanded the appeal for evidentiary development.

The Board notes that in a July 2017 rating decision, the RO, inter alia, granted service connection for maxillary, frontal, ethmoid sinusitis and assigned a 50-percent initial rating for that disability, effective June 5, 2017.  The Veteran subsequently submitted a timely notice of disagreement with regard to the effective date for sinusitis; however, as this claim is currently under development at the RO, the Board will not address it at this time.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).



FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, his service-connected nasal septal deviation status post septoplasty with residual deformities has been manifested by greater than 50-percent obstruction of the nasal passage on both sides, for the entire appeal period.


CONCLUSION OF LAW

For the entire appeal period, the criteria for a 10-percent disability rating, but no higher, for nasal septal deviation status post septoplasty with residual deformities have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6502 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Law and Analysis

The Veteran contends that the symptoms associated with his nasal septal deviation status post septoplasty with residual deformities warrant an increased disability rating.  For the reasons discussed below, the Board finds that a uniform, 10-percent rating is warranted for the entire appeal period.

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

"Staged" ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's nasal septal deviation status post septoplasty with residual deformities is currently evaluated as noncompensable (0 percent disabling) prior to August 22, 2013; 10-percent disabling from August 22, 2013 to January 27, 2014; noncompensable from January 28, 2014 to June 4, 2017; and 10-percent disabling from June 5, 2017 to the present, under DC 6502.  See 38 C.F.R. § 4.97.

Pursuant to DC 6502, a 10-percent rating is warranted for traumatic deviation of the nasal septum with 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side.  38 C.F.R. § 4.97, DC 6502.  This is the only schedular rating provided under this DC.

On VA examination in January 2013, the Veteran reported suffering a deviated nasal septum in service.  He underwent surgery twice, in 1982 and 1984; the examiner noted that he had "good results" from the surgeries "with no objective evidence of chronic residuals."  In terms of current symptoms, the examiner did not comment on the degree of obstruction of the nasal passages.  No objective evidence of nasal septal deviation or deformity was noted.

In February 2014, the Veteran submitted correspondence indicating that the VA examiner's report was inaccurate.  In support, he submitted treatment notes from a private ear, nose, and throat (ENT) specialist indicating diagnoses in 2013 of deviated septum, nasal valve stenosis, hypertrophy of the nasal turbinates, and allergic rhinitis.  These records noted that the Veteran's rib cartilage was mobile, causing obstruction, and that he had "very narrow nasal bones" and a wide tip.  The Veteran reported a history of nasal congestion.

In January 2014, the Veteran was referred to another ENT with reports of nasal congestion and obstruction.  He subsequently underwent a surgical procedure to remove a septal spur.  A September 2014 letter from the ENT indicated that the procedure "was done for 50% obstruction on the right and 50% obstruction on the left."  An October 2014 Disability Benefits Questionnaire (DBQ) completed by the same ENT reflects that there had been at least 50% obstruction of the nasal passages on both sides.

On VA examination in February 2015, the Veteran reported that the upper portion of his nose was very mobile.  The examiner noted that there was not at least 50-percent obstruction of the nasal passage on both sides, nor was there complete obstruction on one side.  The examiner explained that the Veteran's septum was now mid-line; however, the upper portion of the reconstructed septum was not fully connected, and "a small area depression occurs with application of minimal pressure to the upper left side of the nose."

On VA examination in June 2017, it was noted that there was not at least 50-percent obstruction of the nasal passage on both sides due to traumatic septal deviation; however, there was greater than 50-percent obstruction due to rhinitis.

After careful review, the Board finds that the criteria for a uniform 10-percent rating for the entire appeal period is warranted.  In this regard, the Board notes that, as instructed in 38 C.F.R. § 4.2, different examiners will not describe the same disability in the same language.  It is recognized that features of disability which remain unchanged may be overlooked and not accurately appreciated or described, which requires the rater to interpret reports in light of the whole recorded history and reconciling the various reports into a consistent disability picture.

In this case, when resolving doubt in the Veteran's favor, the Board finds that the criteria for a uniform, 10-percent rating have been met throughout the entire appeal period.  In so finding, we recognize that the evidence is somewhat inconsistent regarding the severity of the Veteran's nasal obstruction.  However, given his reports of a "mobile" septum and chronic nasal congestion, the need for surgical treatment in 2014, and the subsequent VA examiner's finding of greater than 50 percent nasal obstruction, the Board finds that the criteria for a 10-percent evaluation have been more nearly approximated.  Accordingly, a uniform, 10-percent evaluation under DC 6502-the maximum evaluation allowable under this code-is warranted.

The Board has considered whether a rating in excess of 10 percent is warranted under DC 6522, as the Veteran has been diagnosed with rhinitis.  See 38 C.F.R. § 4.97.  However, a 30-percent rating is not warranted under this code as there is no evidence of polyps.  The Board further notes that, as the service-connected condition on appeal is listed in the rating schedule, rating by analogy to another DC is not appropriate.  See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) (quoting 38 C.F.R. §§ 4.20 and 4.27 as well as Suttman v. Brown, 5 Vet. App. 127, 134 (1993)).  (The Board reiterates that the Veteran has appealed the effective date of the evaluation assigned for his service-connected maxillary, frontal, ethmoid sinusitis, but that this appeal has not yet been perfected to the Board.)

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Extraschedular Consideration

The Veteran's representative has contended that an extraschedular rating is warranted in this case.  See Informal Hearing Presentation (October 2017).  To that end, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) governing extraschedular ratings.  However, in this case, the evidence of record is against a finding that the disability on appeal is so exceptional or unusual as to warrant the assignment of an extraschedular rating.  See 38 C.F.R. § 3.321(b)(1).

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, 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 those disabilities.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided under 38 C.F.R. § 3.321(b)(1) as "governing norms"(including marked interference with employment and frequent periods of hospitalization).

The Board notes that, in Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed Cir. 2014), the Federal Circuit Court stated that "[l]imiting referrals for extra-schedular evaluation to considering a Veteran's disabilities individually ignores the compounding negative effects that each individual disability may have on the Veteran's other disabilities."  When considering whether referral is warranted based on the combined effects of a Veteran's service-connected disabilities, the Board first must compare the Veteran's symptoms with the assigned schedular ratings.  Yancy v. McDonald, 27 Vet. App. 484 (2016).

The evidence in this case does not show such an exceptional disability picture that renders inadequate the available schedular evaluation for the service-connected disability on appeal.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  As discussed above, the Veteran's service-connected nasal septal deviation status post septoplasty with residual deformities has been manifested by, at most, mobile septum and greater than 50-percent obstruction of the nasal passage on both sides.  The rating assigned for this disability fully contemplate this symptomatology.  Notably, the Veteran has been separately service-connected for sinusitis; however, this disability is not currently on appeal.  The record does not disclose any compounding negative effects that would warrant an extraschedular rating under Johnson.  As such, it cannot be said that the schedular evaluation for the disability on appeal is inadequate.

The Board observes also that, even if the available schedular evaluation for the disability at issue is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  There is no indication that the Veteran has required frequent periods of hospitalization, and there is nothing in the record to indicate that this disability causes impairment with employment over and above that which is already contemplated in the assigned schedular ratings.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  Indeed, the VA examination reports of record reflect that the Veteran's nasal septal deviation does not impact his ability to work.

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected nasal septal deviation status post septoplasty with residual deformities, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met.
















ORDER

Prior to August 22, 2013, entitlement to an initial 10-percent disability rating for nasal septal deviation status post septoplasty with residual deformities is granted. 

From January 28, 2014 to June 4, 2017, entitlement to a 10-percent rating for nasal septal deviation status post septoplasty with residual deformities is granted.

Entitlement to a rating in excess of 10 percent for nasal septal deviation status post septoplasty with residual deformities is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs