Citation Nr: 18123763 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 15-28 402 DATE: August 3, 2018 ORDER Entitlement to an initial rating of 10 percent, but no higher, for a deviated nasal septum is granted. Entitlement to an initial increased rating for sinusitis is dismissed. REMANDED Entitlement to service connection for paroxysmal positional vertigo, claimed as Meniere’s disease, is remanded. FINDINGS OF FACT 1. The Veteran’s deviated nasal septum disability has been manifested by complete obstruction of his left nasal passage. 2. By letter dated November 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim of entitlement to an initial increased rating for sinusitis. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, for a deviated septum have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6502 (2017). 2. The criteria for withdrawal of the issue of entitlement to an initial increased rating for sinusitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from July 2002 to June 2003, and from May 2007 to March 2013. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In his July 2015 substantive appeal, the Veteran requested a hearing before the Board; however, he cancelled his request by phone in February 2018. Thus, the hearing request is considered withdrawn. Entitlement to an initial compensable rating for a deviated nasal septum disability The Veteran asserts he is entitled to an initial compensable rating for his deviated septum. The Veteran’s service-connected deviated septum is rated as noncompensable pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6502. Under Diagnostic Code 6502, a maximum 10 percent rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. At a September 2013 VA examination, physical examination reflected the Veteran did not have 50 percent obstruction on both sides of his nasal passages or complete obstruction of either of his nasal passages. There was no evidence the Veteran had surgery for his deviated septum, or that he has loss of part of the nose or other scars exposing both nasal passages, part of one ala, or any other obvious disfigurement. In March 2016, the Veteran was afforded a VA examination to assess the severity and manifestations of his traumatic deviated septum disability. Physical examination reflected the Veteran did not have 50 percent obstruction on both sides of his nasal passages or complete obstruction of either of his nasal passages. There was no evidence the Veteran had surgery for his deviated septum, or that he has loss of part of the nose or other scars exposing both nasal passages, part of one ala, or any other obvious disfigurement. A March 2014 private treatment note from the Veteran’s physician reports that the Veteran had complete left side nasal obstruction. A July 2015 private treatment note also indicates that the Veteran had complete left side nasal obstruction. Additionally, the record reflects numerous complaints and treatment related to the Veteran’s deviated nasal septum throughout the period on appeal, to include the continuous use of medication to treat symptoms associated with his deviated nasal septum disability. The Board finds that the Veteran is entitled to an initial 10 percent rating for his deviated nasal septum. The Board acknowledges that the Veteran did not show complete obstruction of either nasal passage during his September 2013 and March 2016 VA examinations. However, the Veteran’s private treatment records reveal complete left nasal passage obstruction, as well as various complaints related to nasal obstruction throughout the period on appeal. Thus, resolving doubt in the Veteran’s favor the Board finds that the criteria for a 10 percent rating under Diagnostic Code 6502 are more nearly approximated. See 38 C.F.R. §§ 3.102, 4.7. That is the highest rating provided under this diagnostic code. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the Veteran’s claim and decided entitlement based on the evidence or record. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. By letter dated November 2017, the Veteran withdrew his appeal regarding the issue of entitlement to an initial increased rating for sinusitis. As there remains no allegation of error of fact or law for appellate consideration regarding this issue, the Board does not have jurisdiction to review the claim. Accordingly, the issue must be dismissed. REASONS FOR REMAND At a September 2013VA examination, the examiner diagnosed benign paroxysmal positional vertigo. The examiner did not provide a diagnosis for Meniere’s disease; however, he noted the Veteran’s report that symptoms of Meniere’s disease began in 2009 and have continued since that time. As no current diagnosis was provided, the examiner did not provide a nexus opinion. In a July 2015 private treatment note, the Veteran’s private physician indicated that the Veteran had developed Meniere’s disease in 2007, and that symptoms had resolved. Additionally, the Board notes that the claim has been developed on the theory of direct service connection; however, the evidence raises questions as to whether the claimed disability is secondarily related to the Veteran’s service-connected disabilities. In light of the foregoing, the Board finds that the Veteran should be afforded a VA examination to determine whether he has a vestibular disorder, to include Meniere’s disease that is etiologically related to his active service, or that was caused or chronically worsened by a service-connected disability. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present vestibular disorder, to include paroxysmal positional vertigo and/or Meniere’s disease. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present vestibular disorder had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present vestibular disorder was caused or chronically worsened by a service-connected disability, to specifically include sinusitis, a deviated septum disability, and tinnitus. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel