Citation Nr: 18147426 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-16 607 DATE: November 5, 2018 ORDER An initial compensable evaluation for traumatic deviated nasal septum is denied. An initial compensable evaluation for hemorrhoids is denied. An initial evaluation in excess of 0 percent for erectile dysfunction is denied. Restoration of a 10 percent evaluation for right lower extremity (RLE) hypesthesia is granted. Restoration of a 10 percent evaluation for left lower extremity (LLE) hypesthesia is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. During the appeal, the Veteran’s deviated septum disability was not more nearly manifested by either a 50 percent obstruction in both nasal passages or a 100 percent obstruction of one nasal passage. 2. During the appeal, hemorrhoid disability has not been more nearly manifested by large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, evidencing frequent recurrences. 3. During the appeal, erectile dysfunction was not more nearly manifested by deformity of the penis. 4. The preponderance of evidence supports restoration of a 10 percent rating right lower extremity (RLE) hypesthesia. 5. The preponderance of evidence supports restoration of a 10 percent rating left lower extremity (LLE) hypesthesia. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for deviated nasal septum are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Code 6502. 2. The criteria for an initial compensable evaluation for hemorrhoids were not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7. 4.114, Diagnostic Code 7336. 3. The criteria for an initial evaluation in excess of 0 percent for erectile dysfunction were not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.31, 4.115b, Diagnostic Code 7599-7522. 4. The criteria for reduction of RLE hypesthesia evaluation were not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.344(c), 4.124a, Diagnostic Code 8721. 5. The criteria for reduction of LLE hypesthesia evaluation were not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.344(c), 4.124a, Diagnostic Code 8721. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial compensable evaluation for traumatic deviated nasal septum. The Veteran contends that the initial disability evaluation is inadequate. The question for the Board is whether the Veteran’s deviated nasal septum produces a 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. The Board concludes that the preponderance of evidence is against the assignment of a compensable rating as the evidence does not more nearly reflect 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. The VA rating schedule provides a single 10 percent rating for a traumatic deviated nasal septum where there is a 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (Zero Percent Evaluations). A November 2015 VA examination noted radiographic imaging from a September 2014 in-service examination which diagnosed septal deviation. Those images showed mild nasoseptal deviation on the right. A nasal endoscopy was performed on examination which showed mild anterior-posterior S-shaped deflection of septum bilaterally, with small fracture of maxillary crest on left side. The examiner noted there is not at least 50 percent obstruction of the nasal passage on both sides, or complete obstruction of either side due to septal deviation. The examiner opined the disability does not impact employment. The Board accepts that the Veteran is competent to report that his disability is worse. However, the evidence does not more nearly reflect the criteria required for a compensable evaluation at any time during this appeal. 38 C.F.R. § 4.7. Generally, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher (compensable) disability rating, the medical findings do not meet the schedular requirements for a compensable evaluation as they do not show nasal passage obstruction, which is required for a compensable evaluation under the schedule. To the extent that the Veteran may believe that he has nasal obstruction and, thus, warrants the assignment of a compensable evaluation, the Board finds that he is not competent to provide a medical opinion on such as he lacks the requisite medical expertise-it is noted that the percentage of obstruction would not be susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). Moreover, the contains no favorable medical findings/opinion to weigh in this matter. The Board has considered whether a compensable rating may be assigned under any other potentially applicable provision, but finds that there is no basis to assign a compensable evaluation under any other schedular criteria. Neither the lay nor the medical evidence indicates any functional impact or disfigurement that may be separately rated. The percentage ratings contained in the Rating Schedule are intended to compensate for impairment in earning capacity and, here, no such impairment deviated nasal septum is demonstrated by the evidence of record. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107. 2. Entitlement to an initial disability evaluation in excess of 0 percent for hemorrhoids. The Veteran contends that the initial disability evaluation is inadequate. The Board concludes that the preponderance is against the claim for increase. During the appeal, the evidence does not more nearly reflect that hemorrhoid disability is more nearly manifested by large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, evidencing frequent recurrences. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7. 4.114, Diagnostic Code 7336. Diagnostic Code 7336 provides as follows: A 0 percent rating for mild or moderate hemorrhoids; a 10 percent rating for large or thrombotic, irreducible, hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; a 20 percent rating for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. On November 2015 VA examination, the Veteran reported to have no problems with hemorrhoids for “quite some time.” There were no findings, signs or symptoms attributable to hemorrhoids. Moreover, the Veteran has submitted no evidence to the contrary. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, neither the lay nor the medical evidence shows large or thrombotic recurrent hemorrhoids, or persistent bleeding with anemia or fissures. Additionally, absent any symptoms or findings attributable to hemorrhoids, there is no basis to assign a compensable evaluation under any other schedular criteria. Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Hart, supra. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107. 3. Entitlement to a compensable rating for erectile dysfunction. The Veteran contends that the initial disability evaluation is inadequate. The question for the Board is whether the Veteran’s erectile dysfunction causes loss of erectile power with deformity of the penis. The Board concludes that the preponderance of evidence is against the claim. The evidence does not more nearly reflect that erectile dysfunction is manifested by loss of erectile power with deformity of the penis. 38 C.F.R. § 4.115b, Diagnostic Code 7522. The VA rating schedule provides that erectile dysfunction is evaluated as 20 percent disabling where there is deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. On November 2015 VA examination, the Veteran reported no current problems with erectile dysfunction since coming off psychiatric medication. The examiner opined that erectile dysfunction resolved after the Veteran came off psychiatric medication. There are no complaints or findings for deformity of the penis. A December 2015 VA opinion similarly reflects that erectile dysfunction resolved with discontinuance of the Veteran’s psychiatric medication. Favorable medical showing loss of erectile power with penile deformity has not been presented to weigh in this matter. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, neither the lay nor the medical evidence shows penile deformity. Furthermore, although considered, there is no basis to assign a compensable evaluation under any other schedular criteria. Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Hart, supra. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107. 4. Restoration of a 10 percent evaluation for RLE hypesthesia. 5. Restoration of a 10 percent evaluation for LLE hypesthesia. Issues 4-5. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). The Board notes that the Veteran was not provided notice of a proposed rating reduction. However, the Veteran’s overall compensation was 90 percent from July 2, 2015, and did not change based on the reduction of his RLE and LLE hypesthesia disability evaluation. Thus, the Board finds that lack of notice of a proposed rating reduction under 38 C.F.R. § 3.105(e) did not prejudice the Veteran. The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to take into account when determining whether a reduction in a rating is warranted. The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). Where an evaluation has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R. § 3.344(a) and (b). In the present case, the Veteran’s 10 percent evaluation for RLE and LLE hypesthesia were awarded effective July 2, 2015, and were reduced effective November 16, 2015, less than 5 years later. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Thus, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply in the instant case; but rather, 38 C.F.R. § 3.344(c) applies in this appeal, which provides that evidence disclosing improvement in the disability is sufficient alone to warrant reduction in a rating. See 38 C.F.R. § 3.344(c). The Veteran’s RLE and LLE hypesthesia is evaluated under Diagnostic Code 8721. 38 C.F.R. §4.124a. Under that Diagnostic Code, a 20 percent rating is assigned for moderate incomplete paralysis. A 30 percent rating is provided for severe incomplete paralysis. Complete paralysis of the popliteal nerve, described as foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension of the proximal phalanges of the toes lost; abduction of the foot lost; adduction weakened; anesthesia covers the entire dorsum of the foot and toes is assigned a 40 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8721. An August 2015 rating decision granted service connection with a 10 percent evaluation for RLE and LLE hypesthesia. In a December 2015 rating decision, the Regional Office (RO) reduced the rating to 0 percent effective November 16, 2015 based on VA examination of the same date in November 2015. The Veteran contends that the December 2015 rating decision that reduced the evaluation for RLE and LLE hypesthesia is not supported by the record. The questions for the Board are whether, (1) restoration of a 10 percent evaluation for RLE is warranted, and (2) restoration of a 10 percent evaluation for LLE hypesthesia is warranted. The Board concludes that the evidence supports restoration of a 10 percent rating for RLE hypesthesia and a 10 percent evaluation for LLE hypesthesia. 38 C.F.R. § 3.344(c), 4.124a, Diagnostic Code 8721. In a November 2015 VA examination, the Veteran reported no symptoms in the left or right great toes that day. The Veteran reported rare and occasional symptoms in the big toes. No pain, paresthesias, dysesthesias, or numbness were noted. The examiner noted no tropic changes, altered gait, or foot drop. Sensory examination of the feet and toes were normal. However, the examiner noted mild incomplete paralysis bilaterally of the external popliteal nerve. Although the Veteran reported during the November 2015 VA examination that he did not experience symptoms of constant pain, intermittent pain, paresthesias and/or dysesthesias, he reported “other symptoms” characterized by the medical examiner as indicative of mild incomplete paralysis, which is consistent with a 10 percent rating under 38 C.F.R. 4.124a, Diagnostic Code 8721. It is noted that adjudicators are prohibited from substituting their own medical opinion to support or deny a claim. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). Hence, the VA medical conclusion in the absence of any other competent negative medical evidence supports restoration of a 10 percent rating for each lower extremity. The weight of the evidence supports the claims. Accordingly, the claims for restoration are granted. REASON FOR REMAND 1. Entitlement to a TDIU. The Veteran reported in his March 2018 TDIU application that he became too disabling to work since 2015. Because the most recent VA examinations of his service-connected disabilities were in 2015, the Board finds that these examination reports may not adequately reflect the impairments or restrictions associated with service-connected disabilities. Therefore, remand for updated treatment records and new examinations is necessary to decide the matter. Accordingly, the appeal is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2017. 2. Request updated records from the Social Security Administration (SSA), as the Veteran reports a new application with SSA. 3. Obtain the Veteran’s VA Vocational Rehabilitation records. 4. Schedule the Veteran for examinations by appropriate clinicians to address the symptoms, functional impairments, and medical restrictions (if any) associated with each service-connected disability for the purpose of assessing entitlement to TDIU. The examiner(s) should discuss the effect of the Veteran’s disability(ies) on his ability to perform the mental and physical acts required for employment. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel