Citation Nr: 1804268 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-09 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a compensable rating for the residuals of nasal surgery. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to May 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In December 2011, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claim in March 2012 and February 2015. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's residual of nasal surgery, deviated septum, is not manifested by 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side, and is without polyps. 2. The Veteran's residuals of nasal surgery, sinusitis, is manifested by more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge, and includes symptoms of partial loss of taste and smell. 3. The Veteran's residuals of nasal surgery, obstructive sleep apnea (OSA), requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a deviated septum have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159, 4.3, 4.97, Diagnostic Code 6502 (2017). 2. The criteria for an increased 30 percent rating for sinusitis, a residual of the Veteran's nasal surgery, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159, 4.3, 4.97, Diagnostic Code 6510 (2017). 3. The criteria for a separate 50 percent rating for OSA, a residual of the Veteran's nasal surgery, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159, 4.3, 4.97, Diagnostic Code 6847 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a noncompensable rating for a deviated nasal septum as a residual of his service-connected nasal surgery. The Board remanded this appeal in part to determine whether the Veteran suffered from other residuals related to the in-service nasal surgery. The April 2017 VA examiner concluded that the Veteran's OSA and sinusitis were also residuals of his nasal surgery/deviated septum. As such, based upon the probative and competent medical evidence of record, the Board finds that an increased rating for the Veteran's sinusitis and a separate rating for OSA is warranted as residual to the Veteran's service-connected nasal surgery. First, the Board finds that a compensable rating is not warranted pursuant to DC 6502, deviation of the nasal septum. The medical evidence of record, to include two VA examinations, does not reflect that the Veteran suffers from a 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The record reflects that in October 2011, the Veteran underwent surgery once again due to collapse of the nasal valve. However, these treatment records do not reflect findings of a 50 percent obstruction of both sides or complete obstruction on one side. Next, DCs 6510 through 6514 pertain to various types of sinusitis, each of which is rated pursuant to a general formula for sinusitis set forth in the rating schedule following DC 6514. This general rating formula for sinusitis applies in all circumstances in which VA is to evaluate the severity of sinusitis, no matter the particular diagnosis. Under the general rating formula for sinusitis, encompassing DCs 6510 through 6514, a 10 percent disability rating is awarded for sinusitis manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is awarded for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent disability rating is awarded for sinusitis following radical surgery with chronic osteomyelitis, or manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. 4.97, DCs 6510-6514. In this case, the Board finds that an increased 30 percent rating for sinusitis is warranted throughout the appeal period. On November 2012 VA examination, the examiner found that the Veteran suffered from seven or greater non-incapacitating episodes of sinusitis characterized by headache, pain, and purulent discharge in the previous year. That finding meets the criteria for a 30 percent rating pursuant to DC 6510. The remainder of the evidence supports this finding, as on 2009 VA examination the Veteran noted frequent sinus infections that required antibiotic treatment at least two to three times per year. However, the evidence, to include the 2012 VA examination, does not reflect that the Veteran meets the criteria for a rating higher than 30 percent, as radical surgery with chronic osteomyelitis has not been shown, and near constant sinusitis has not been contended or shown. Next, the Board finds that a separate 50 percent rating is warranted for the Veteran's residual OSA. On March 2017 VA examination, a VA examiner opined that the Veteran's OSA was as likely as not due to the Veteran's deviated septum and scarring after nasal surgery, as per the medical literature. The Board notes that in May 2017, a VA addendum opinion was sought by the RO, at which time a VA examiner opined that the Veteran's OSA was not related to his sinusitis. However, that finding does not conflict with the March 2017 opinion relating the Veteran's OSA to his deviated septum and residuals of nasal surgery. Additionally, in March 2009, the Veteran's treating physician diagnosed the Veteran with OSA linked to his nasal obstruction. In that regard, DC 6847 provides the rating criteria for OSA. A 30 percent rating is assigned where there is persistent day-time hypersomnolence. A 50 percent rating is assigned where there is required use of breathing assistance device such as continuous airway pressure (CPAP) machine. A 100 percent rating is assigned where there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; where tracheostomy is required. 38 C.F.R. § 4.97. The medical evidence of record demonstrates that the Veteran is required to use a CPAP machine, and thus he meets the criteria for a 50 percent rating. Chronic respiratory failure has not been shown, thus a rating higher than 50 percent is not warranted. While the Veteran has also reported symptoms of loss of taste and smell as secondary to his nasal disabilities, on September 2012 VA examination the Veteran was assessed not to suffer from a complete loss of taste and smell. Therefore, a separate rating pursuant to 38 C.F.R. § 4.87, DCs 6275 or 6276 is not warranted. Moreover, given the usual pathology of sinusitis, it is reasonable to conclude that the Veteran's interference with smell and taste is a symptom related to his sinusitis flares and process, and is thus considered by his 30 percent rating under DC 6510. Finally, a separate rating is not warranted for the Veteran's rhinitis, as the medical evidence of record, to include a March 2009 private record, shows no evidence of polyps, or, as analyzed above, the necessary obstruction of the nasal passages. The Veteran has not stated that his nasal disabilities prevent gainful employment, thus this claim for increased rating has not raised the issue of TDIU. ORDER A compensable rating for a deviated septum is denied. An increased 30 percent rating for sinusitis, a residual of the Veteran's nasal surgery, is granted, subject to the laws and regulations governing monetary benefits. A separate 50 percent rating for OSA, a residual of the Veteran's nasal surgery, is granted, subject to the laws and regulations governing monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs