Citation Nr: 1805748	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-15 842	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a compensable evaluation for a deviated septum with chronic vasomotor rhinitis.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from April 1987 to May 1990 and from January 31, 1991 to February 1, 1991.  

This matter is on appeal before the Board of Veterans' Appeals (Board) from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In August 2016, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  The transcript of the hearing is associated with the electronic claims file.  


FINDING OF FACT

The Veteran's service-connected deviated septum with chronic vasomotor rhinitis is manifested by obstruction of at least 50 percent in both nostrils.  


CONCLUSION OF LAW

The criteria for a 10 percent rating for deviated septum with chronic vasomotor rhinitis have been met.  38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 4.97, Diagnostic Code 6502, 6522 (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 

The Veteran disagreed with the initial rating decision assigning a noncompensable rating for his deviated septum with chronic vasomotor rhinitis condition.  The Board finds that an increased rating to 10 percent, but no higher, is warranted.  

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. 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities.  38 C.F.R. § 4.14.  

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).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  

The Veteran's current deviated septum with chronic vasomotor rhinitis condition is rated under Diagnostic Code 6502.  

Under Diagnostic Code 6502, a 10 percent rating is assigned for traumatic deviation of the nasal septum where there is a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side of the nasal passage.  38 C.F.R. § 4.97, Diagnostic Code 6502.  No other rating is provided under Diagnostic Code 6502.  

In the Veteran's VA examinations dated September 2010 and August 2013, the VA examiner noted that the Veteran's deviated septum condition did not result in either 50 percent blockage of both nasal passages or total blockage of one nasal passage.  Thus, under Diagnostic Code 6502, the Veteran would not meet the criteria for a compensable rating based on deviation of the septum.  

However, under Diagnostic Code 6522 for allergic or vasomotor rhinitis, a 10 percent rating is assigned where there is a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side of the nasal passage without polyps, and a 30 percent rating is assigned when there are polyps present.  38 C.F.R. § 4.97, Diagnostic Code 6522.  

The VA examiners at both the September 2010 and August 2013 examinations noted that there were no polyps present in the Veteran's nasal passages.  However, the August 2013 VA examiner noted that due to vasomotor rhinitis, the Veteran had at least 50 percent obstruction of both sides of the nasal passages.  Thus, the Veteran meets the criteria under Diagnostic Code 6522 for a 10 percent evaluation rating based on obstruction related to the Veteran's vasomotor rhinitis.  The Veteran would not meet the 30 percent criteria under Diagnostic Code 6522 because there were not polyps present.  

Other related Diagnostic Codes include 6504, loss of part of nose, or scars.  However, the examiners at both the September 2010 and August 2013 examinations noted that there was no scar or loss of part of the ala, and no obvious disfigurement of the Veteran's nose.  Therefore, a rating under this Diagnostic Code is not warranted.  

In determining whether a higher rating is warranted for a service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the evidence supports a higher rating of 10 percent for deviated septum with chronic vasomotor rhinitis.  

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ORDER

Entitlement to a disability evaluation of 10 percent, but no higher, for a deviated septum with chronic vasomotor rhinitis is granted.  




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs