Citation Nr: 1808207 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-19 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial compensable rating for service-connected residuals of a fractured nose with acute sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1995 to December 1995 and from March 2008 to April 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO), which granted service connection for residuals of a fractured nose and for residuals, status post-surgical repair, and assigned a noncompensable rating effective from April 2, 2009. During the course of the appeal, the RO granted temporary total (100 percent) disability ratings for convalescence from nasal surgeries, from November 2, 2009 to February 1, 2010, November 23, 2010 to February 1, 2011, from January 9, 2012 until April 1, 2012, and from July 23, 2012 to October 1, 2012. As a 100 percent rating is the maximum rating assignable, those periods are not for consideration in this appeal for an increased rating. In January 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously remanded in October 2014 and April 2017 for further development, which has now been completed. The issue of entitlement to a rating in excess of 10 percent for residuals of nasal fracture with acute sinusitis is addressed in the REMAND section of this decision and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDING OF FACT During the period under review, the Veteran's service-connected residuals of a fractured nose has manifested with obstructed breathing. CONCLUSION OF LAW The criteria for a 10 percent disability rating for the service-connected residuals of a fractured nose with acute sinusitis have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6510-6502 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is seeking a higher initial rating for his service-connected residuals of a fractured nose, which is currently rated as noncompensably disabling under Diagnostic Code 6510-6502. 38 C.F.R. § 4.97, Diagnostic Code 6510-6502. Under Diagnostic Code 6502 for traumatic deviation of the nasal septum only, a maximum 10 percent disability rating is warranted if there is at least a 50 percent obstruction of the nasal passage on both sides, or if there is complete obstruction of the nasal passage on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Throughout the appeal, the Veteran has repeatedly reported difficulty breathing through his nose, and has undergone repeated surgeries for such complaints. Objective findings have included deviated septum, and recent x-rays revealed an old fracture of the distal nasal bone with a two millimeter depression. A May 2013 treatment report noted the examiner was able to appreciate some irregularity with palpation and that a deviated septum was noted. Upon review of the evidence of record and after resolving all doubt in the Veteran's favor, the Board finds that the symptomatology associated with his nasal fracture residuals more nearly approximates the criteria for a 10 percent rating under Diagnostic Code 6502. ORDER A rating of 10 percent for residuals of a fractured nose with acute sinusitis is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND While further delay is regrettable, the Board finds that a new examination is warranted to determine whether a rating in excess of 10 percent is warranted for the Veteran's residuals of nasal fracture with acute sinusitis. Although the Veteran had a VA examination in May 2015, such examination is not adequate for rating purposes. On that examination, the examiner, a physician's assistant, indicated that the Veteran had undergone radical sinus surgery and later indicated in a later part of the examination that the Veteran had undergone sinus surgeries. However, the operative reports for the Veteran's four surgeries appear to reflect nasal, not sinus, surgery, and the VA examination conducted by a physician in July 2012 indicated the Veteran had no prior sinus surgeries. Likewise, an April 2013 CT study of the sinuses did not reveal any mention of prior sinus surgeries. Further, while the examiner diagnosed chronic sinusitis that was constant and referenced the 2013 CT scan of the sinuses, those studies made no mention of chronic sinusitis. Additionally, VA treatment records do not reflect complaints of constant sinusitis. Thus, a new VA examination is necessary. Relevant ongoing medical records should also be requested. Accordingly, the issue is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his nose and sinuses. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a nose and sinus examination, preferably with a different examiner than the one who conducted the May 2015 examination. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, including x-ray of the sinuses, and the results reported. Following review of the record and examination of the Veteran, the examiner is asked to respond to the following: a. The examiner should indicate whether there are objective findings supporting a diagnosis of chronic sinusitis and if so, identify such. b. Please clarify whether the Veteran has, in fact, undergone sinus surgery (as indicated by the 2015 VA examiner) when the operative reports seem to suggest nasal and septal surgery. If he has undergone sinus surgery, the examiner is asked to identify the type of such surgery. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ___________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs