Citation Nr: 18150597 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-07 278 DATE: November 15, 2018 ORDER Entitlement to an initial compensable rating for a traumatic deviated septum is denied. FINDINGS OF FACT The Veteran did not suffer from 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. CONCLUSION OF LAW The criteria for a compensable rating for traumatic deviated septum have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.97, Diagnostic Code 6502 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative have 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). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claims for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in August 2011 for his deviated septum. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s traumatic deviated nasal septum is currently evaluated under Diagnostic Code 6502, deviation of the nasal septum. 38 C.F.R. § 4.97 (2018). Under this Diagnostic Code the maximum rating is 10 percent. A 10 percent evaluation is warranted with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The Veteran has received multiple VA examinations in August 2012, April 2014, and May 2015. Each VA examiner specifically found the Veteran did not have greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side due to his deviated septum. Significantly, the August 2012 VA examiner specifically found that the Veteran does have 50 percent obstruction of his nasal passages on both sides due to his rhinitis. Accordingly, the Board finds a compensable rating for a traumatic deviated septum is not warranted. The Board considers the Veteran’s lay statement that his nasal passages are more than 50 percent obstructed, and the medical evidence that his nasal passages are 50 percent obstructed on both sides. However, the preponderance of the evidence shows that the obstruction is not due to his deviated septum. His obstruction is due to his rhinitis. The Veteran has a 10 percent disability rating for his rhinitis under Diagnostic Code 6522, which provides for a 10 percent rating when there is rhinitis with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. Because his obstruction is due to his rhinitis, a compensable rating for his deviated septum must be denied. Additionally, even if the obstructions were due to both his deviated septum and his rhinitis, because that manifestation is already compensated under Diagnostic Code 6522, to also compensate it under Diagnostic Code 6502 would constitute impermissible pyramiding. 38 C.F.R. § 4.14. In other words, it would not be permissible to compensate him twice for the same symptoms (Continued on the next page)   Finally, a total disability rating based on individual unemployability (TDIU) is not warranted because the Veteran does not contend, and the evidence does not show, that his disabilities renders him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Board notes the Veteran’s service-connected disabilities have led to him having to take more breaks than his coworkers and take some time off work. Nevertheless, the Veteran has remained employed for the entire appeal period. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel