Citation Nr: 18147927 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 14-32 608 DATE: November 6, 2018 ORDER Entitlement to a rating higher than 10 percent for service connected residuals of nasal trauma to include nasal obstruction is denied. Entitlement to a rating higher than 10 percent for service connected intermittent headaches is denied. The reduction of the rating for asbestosis and chronic obstructive pulmonary disorder (COPD), from 30 to 10 percent, effective December 4, 2015, was improper. The 30 percent rating is restored. REMANDED Entitlement to a rating higher than 30 percent for asbestosis and COPD is remanded. Entitlement to service connection for lung cancer, to include as due to exposure to herbicide agents or asbestos is remanded. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum available schedular rating for residuals of nasal trauma to include nasal obstruction. 2. The available evidence shows the Veteran’s disability has been manifested by prostrating attacks of headache pain occurring, on average, once in two months. 3. The Veteran did not receive prior notice of the reduction of his 30 percent rating for asbestosis and COPD, effective December 4, 2015; rather, the rating was effectuated in the January 2016 rating decision. 4. The evidence of record shows the Veteran’s respiratory conditions have been effectively manifested by FEV-1/FVC levels at 50 percent predicted. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for residuals of a nose fracture, status-post septoplasty, reconstruction, and rhinoplasty, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6502. 2. The criteria for a rating higher than 10 percent for intermittent headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 3. The reduction of the Veteran’s asbestosis and COPD rating from 30 to 10 percent, effective December 4, 2015, is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. § 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from January 1969 to November 1970. The Veteran withdrew his request for a Board of Veterans’ Appeals (Board) hearing in an October 2017 statement. 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he or she, should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require reevaluation in accordance with changes in a veteran’s condition. It is thus 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. Further, the Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that the competency of evidence differs from its weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interests may affect the credibility of testimony, it does not affect competency to testify”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996). 1. Entitlement to a rating higher than 10 percent for service connected residuals of nasal trauma to include nasal obstruction. The Veteran contends that the residuals of his nose disability are more severe than is contemplated by the currently assigned rating of 10 percent. The Veteran’s residuals of a nasal fracture are rated under Diagnostic Code 6502. Diagnostic Code 6502 provides a maximum rating of 10 percent rating 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; Diagnostic Code 6502. As discussed below, a review of the evidence, both lay and medical, demonstrates that a disability rating in excess of 10 percent is not justified as a matter of law. 38 C.F.R. §§ 4.3, 4.7, 4.97. Relevant to the current appeal period, the Veteran was seen by VA for nasal examination in March 2013. The examination report discussed the Veteran’s nasal fracture caused by a fight during service and the resulting deviated septum. It was opined that the Veteran had at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation and complete obstruction on one side. The examiner also noted the Veteran experienced tension headaches three days per week that lasted for 60 to 90 minutes. The headaches were associated with congestion and localized to the central frontal region. VA treatment records show the Veteran experienced sinus congestion and occasional headaches. The Board notes that the VA examination and treatment records show his deviated septum caused sinus congestion and blockage but his condition has remained stable. Importantly, the Veteran currently has the maximum, 10 percent rating for residuals of a nasal fracture, which is the maximum rating applicable by law. 38 U.S.C. § 1155, 38 C.F.R. § 4.97, Diagnostic Code 6502. Further, the Board has considered the applicability of other diagnostic codes. Here, the Veteran’s nasal fracture residuals are not shown to involve any other factor that would warrant a rating under any other provision of the rating schedule for nasal disorders. A liberal and sympathetic review of the claims file fails to show that there are any other facts which would result in a higher rating under other pertinent diagnostic criteria. See 38 C.F.R. § 4.97, Diagnostic Codes 6502-24. The preponderance of the evidence is against the Veteran’s claim. The benefit-of-the-doubt rule does not apply, and an increased rating for his nasal fracture is not justified as a matter of law. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating higher than 10 percent for service connected intermittent headaches. Under Diagnostic Code 8100, a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. 38 C.F.R. § 4.124a. A maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Here, the Board finds that the evidence does not show the Veteran’s symptoms warrant a rating in excess of 10 percent at any point during the appeal period. In statements submitted in support of his claim, the Veteran indicated that he experienced eye aches and headaches “all the time” and took medication for the pain. VA treatment records show the Veteran experienced sinus congestion with occasional headaches. There are few records showing the severity or frequency of his headaches. The Veteran was afforded a VA headache examination in December 2015 and indicated he experienced headache pain on both sides of his head, which lasted less than a day. Other than pain, his symptoms also included sensitivity to light. His treatment consisted of over-the-counter medication. He had characteristic prostrating attacks of headache pain once in two months; these prostrating and prolonged attacks were productive of severe economic inadaptability. When considering any functional limitations, the examiner noted his headaches were a distraction. In the March 2013 VA examination, the Veteran reported suffering from headaches for 35 years; they occurred three days per week and lasted 60 to 90 minutes. The headaches were associated with nasal congestion and localized to the central, frontal region. His symptoms including pain on both sides of the head that worsened with physical activity; he also experienced sensitivity to sound. The Veteran did not have prostrating and prolonged attacks of migraine headache pain or other symptoms. The examiner found that his headache condition did not cause any functional limitation or impairment. Based on the foregoing, the Board finds that a rating greater than 10 percent is not warranted for the Veteran’s headache condition. The December 2015 examination shows that his headaches occur once in two months and are prostrating and prolonged in nature. The noted frequency and severity fit squarely within the 10 percent schedular rating. Although the March 2013 examination showed the Veteran experienced headaches more frequently, they were not characterized as prostrating and did not cause any functional loss. There is no other evidence showing the Veteran’s headaches were prostrating in nature prior December 2015 or occurred more frequently thereafter. Although he is competent to provide evidence regarding the frequency of his condition, the Veteran’s statement that his headaches occur “all the time” is not specific enough to determine an adequate rating. He had the opportunity during his VA examinations to provide evidence and state how frequent his headaches occurred and it was reported as “once in two months.” Given the documentation of record that exists of demonstrating the frequency and severity of headaches, as well as the most recent December 2015 VA examination that expressly described these as prostrating attacks of headache pain occurring, on average, once in two months, the Board finds that his headaches more nearly approximate the criteria needed for the current 10 percent rating under Diagnostic Code 8100. As such, an increased rating for headaches is denied. 3. Whether the reduction of the rating for service connected asbestosis and chronic obstructive pulmonary disorder (COPD) was proper. The Veteran contends that his COPD and asbestosis warrant a rating higher than 10 percent. By way of background, the October 2012 rating decision awarded a 30 percent rating for asbestosis and COPD, effective May 29, 2012. A June 2014 rating decision proposed to reduce his rating from 30 percent to zero percent. The Veteran submitted a notice of disagreement in July 2014, indicating he opposed the reduction. The September 2014 rating decision effectuated the rating reduction to zero percent for COPD/asbestosis, effective December 1, 2014. However, the January 2016 rating decision reinstated the 30 percent rating for COPD, effective December 1, 2014, and assigned a 10 percent from December 4, 2015. To reduce a rating, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. It must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The fact-finder must issue a rating decision proposing to reduce the evaluation and notice of the 60-day period for the submission of evidence and of the right to request a predetermination hearing within 30 days. The Board notes that the RO restored the initial 30 percent rating effective December 1, 2014; therefore, that will not be addressed in this decision. Rather, the Board will focus on the reduction that was assigned in the January 2016 rating decision, effective December 4, 2015. First, no rating decision was issued that proposed to reduce the Veteran’s rating assigned for COPD, and there was also no accompanying notice. As such, the reduction was improper because of this procedural due process deficiency. Second, even if procedural due process were not deficient, the reduction would still be improper because no pulmonary function tests were conducted and therefore, there is no evidence showing an improvement in his ability to function under the ordinary conditions of life and work. Specifically, the RO’s conclusion that the Veteran’s condition improved is inconsistent with the December 2015 examiner’s opinion that his respiratory condition would limit his ability to walk further than half a block. Therefore, the reduction was improper and restoration is warranted. As the Board has awarded the maximum benefits sought, the Board considers this appeal resolved in full. REASONS FOR REMAND 1. Entitlement to a rating higher than 30 percent for service connected asbestosis and COPD. The Veteran was afforded a VA examination for his respiratory conditions in December 2015; however, the examiner was unable to conduct updated pulmonary function tests and relied on those dated 2014. Updated test results would be useful in determining the current severity of the Veteran’s respiratory disabilities. Therefore, a new examination with current tests should be scheduled on remand. 2. Entitlement to service connection for lung cancer, to include as due to exposure to herbicide agents and/or asbestos is remanded. The Board finds that further development is warranted before a decision can be rendered on the Veteran’s claim for lung cancer; specifically, the medical evidence of record does not show he has a confirmed diagnosis. A November 2014 CT scan was conducted by a private physician and showed minimal enlargement of a right lung nodule seen in the upper proton of the right lung. The physician indicated, “the presence of uptake as well as the slight interval growth does raise the possibility of malignancy.” In an April 2015 statement, the Veteran indicated that he would be undergoing a lobectomy in July 2015 and his doctor planned to biopsy the nodule in order to determine a diagnosis. No medical records dated after April 2015 have been associated with the claims file. Therefore, on remand, any treatment records regarding his lung condition should be sought and obtained and a new VA examination should be scheduled. The matter is REMANDED for the following action: 1. Obtain any outstanding treatment records relevant to the claim on appeal. Specifically, request any records from Fairview University Medical Center Mesabi dating from April 2015 to present. 2. Once any files are associated with the record, schedule the Veteran for a VA pulmonary examination. The claims file should be made available for review. The examiner is asked to provide an opinion as to: (a.) Whether the Veteran has a current diagnosis of lung cancer. (b.) Whether it is at least likely as not (50 percent probability or greater) that any diagnosed lung cancer is related to his service, to include exposure to asbestos or Agent Orange. The examiner is asked to conduct PFTs and provide the results, unless it determined that PFT testing is medically contraindicated. (Continued on the next page)   The examiner is asked to provide a complete rationale for all opinions expressed. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel