Citation Nr: 19123734 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 17-02 689 DATE: April 2, 2019 ORDER A rating in excess of 30 percent for residuals of post-operative rhinoplasty for comminuted fracture nasal septum with allergic (vasomotor) rhinitis is denied. An initial compensable rating for granulomatous rhinitis is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for chronic sinusitis is remanded. FINDINGS OF FACT 1. For the entire rating period, the Veteran’s service-connected residuals of post-operative rhinoplasty for comminuted fracture nasal septum with allergic (vasomotor) rhinitis has been assigned at 30 percent, the maximum rating authorized, under Diagnostic Code 6522. 2. For the entire initial rating period, the Veteran’s service-connected granulomatous rhinitis has not been manifested by Wegener’s granulomatosis, lethal midline granuloma, or any other types of granulomatous infection. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a schedular rating in excess of 30 percent for residuals of post-operative rhinoplasty for comminuted fracture nasal septum with allergic (vasomotor) rhinitis. 38 C.F.R. § 4.97, Diagnostic Codes 6502, 6522 (2018). 2. The criteria for entitlement to an initial compensable rating for granulomatous rhinitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6524 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1968 to April 1971. In January 2017, the Veteran submitted a timely substantive appeal (VA Form 9) in response to the December 2016 statement of the case (SOC); however, the Veteran marked “only appealing these issues” but did not specify which issues. Nevertheless, the Agency of Original Jurisdiction (AOJ) certified all issues listed in the December 2016 SOC to the Board in January 2017. See Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009). 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). 1. Entitlement to a rating in excess of 30 percent for residuals of post-operative rhinoplasty for comminuted fracture nasal septum with allergic (vasomotor) rhinitis In a November 1976 VA rating decision, service connection for residuals of post-operative rhinoplasty for comminuted fracture nasal septum was granted because the disability was deemed to be directly related to his military service. The Veteran was assigned a noncompensable (0 percent) disability rating effective for the entire rating period from September 21, 1976. See 38 C.F.R. § 4.97, Diagnostic Code 6502. In March 1990, the Veteran submitted an informal claim requesting a compensable rating for service-connected residuals of post-operative rhinoplasty for comminuted fracture nasal septum. In a September 1990 VA rating decision, the claim was denied and the 0 percent disability rating was continued. Id. On September 17, 2015, the Veteran submitted a formal claim requesting a compensable rating for service-connected residuals of post-operative rhinoplasty for comminuted fracture nasal septum. In a February 2016 VA rating decision, the AOJ denied the issue of a compensable rating for service-connected residuals of post-operative rhinoplasty for comminuted fracture nasal septum. Id. in the February 2016 VA rating decision, the AOJ also raised and granted the issue of entitlement to service connection for allergic (vasomotor) rhinitis on a secondary basis. The Veteran was assigned a 10 percent disability rating for allergic (vasomotor) rhinitis for the entire appeal period effective from September 17, 2015. See 38 C.F.R. § 4.97, Diagnostic Code 6522. In a December 2016 VA rating decision, the AOJ increased the disability rating from 10 percent to 30 percent disabling for rhinitis with polyps for the entire appeal period effective from September 17, 2015. See 38 C.F.R. § 4.97, Diagnostic Code 6522. Since the Veteran’s service-connected residuals of post-operative rhinoplasty for comminuted fracture nasal septum with allergic (vasomotor) rhinitis has been assigned the maximum schedular rating available for allergic or vasomotor rhinitis under Diagnostic Code 6522 for the entire appeal period, the Board finds there is no legal basis upon which to award a higher schedular evaluation during the appeal period. As such, entitlement to a rating in excess of 30 percent for residuals of post-operative rhinoplasty for comminuted fracture nasal septum with allergic (vasomotor) rhinitis is not warranted on a schedular basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to an initial compensable rating for granulomatous rhinitis Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. 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). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in September 2015. Fenderson v. West, 12 Vet. App. 119 (1999). During the course of the appeal for the issue of a higher rating for service-connected residuals of post-operative rhinoplasty for comminuted fracture nasal septum with vasomotor rhinitis, the AOJ granted the issue of entitlement to service connection for granulomatous rhinitis on a secondary basis in the February 2016 VA rating decision. The Veteran was assigned a noncompensable (0 percent) disability rating for the entire appeal period effective from September 17, 2015. See 38 C.F.R. § 4.97, Diagnostic Code 6524. The Board considers whether an initial compensable rating for granulomatous rhinitis is warranted at any time since the date of claim on September 17, 2015. Diagnostic Code 6524 provides the following rating criteria for granulomatous rhinitis: 100 percent disability rating, the maximum available, for Wegener’s granulomatosis, lethal midline granuloma; and a 20 percent disability rating, the minimum available, for other types of granulomatous infection. Id. At the outset, the Board also that since the case was certified to the Board in January 2017, additional medical evidence (private treatment records dated in January 2017 and April 2018 and Social Security Administration (SSA) records) not relevant to this issue on appeal were obtained and associated with the record. As a result, a waiver of initial AOJ review is not needed and the Board may proceed with this claim. After review of the evidentiary record since September 17, 2015, the Board finds the most probative evidence of record does not show the service-connected granulomatous rhinitis has been manifested by Wegener’s granulomatosis, lethal midline granuloma, or any other types of granulomatous infection at any time during the appeal period. In December 2015, the Veteran underwent a VA Disability Benefits Questionnaire (DBQ) examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx. Following the clinical evaluation, the VA examiner rendered diagnoses, in part, for granulomatous rhinitis and did not mark any present findings of Wegener’s granulomatosis, lethal midline granuloma, rhinoscleroma, or any other granulomatous infection. Review of private treatment records during the appeal period are silent for any reported symptoms or clinical findings regarding granulomatous rhinitis. Moreover, review of the record is silent for any reported symptomatology regarding service-connected granulomatous rhinitis from the Veteran. As noted above, to meet the compensable rating criteria of 20 percent or 100 percent, Wegener’s granulomatosis, lethal midline granuloma, or any other types of granulomatous infection would need to have been shown. In light of the evidence of record discussed above, an initial compensable rating for service-connected granulomatous rhinitis is not warranted. See 38 C.F.R. § 4.97, Diagnostic Code 6524. The Board has considered the possibility of staged ratings and finds that the noncompensable scheduler rating for the service-connected disability on appeal has been in effect for appropriate period on appeal. Accordingly, staged ratings are inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Lastly, the Board notes that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was granted in a December 2018 VA rating decision effective from December 26, 2017. This issue has not been subsequently raised in connection with a service-connected disability on appeal during the appeal period from September 17, 2015 to December 25, 2017, thus it is not currently before the Board for appellate consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for chronic sinusitis During the course of the appeal, the Veteran was afforded the VA DBQ examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx in December 2015. At that time, the VA examiner noted the Veteran’s diagnosis of chronic sinusitis was manifested by headaches, pain and tenderness of affected sinus, purulent discharge or crusting, 4 non-incapacitating episodes in the past 12 months, and 1 incapacitating episode of sinusitis in the past 12 months. Since then, review of private treatment records shows worsening symptomatology of service-connected chronic sinusitis. Specifically, in April 2016 the Veteran reported having more frequent sinus infections and just got off a third round of antibiotics. In June 2016 the Veteran reported he just got over a sinus infection which caused nose bleeds. In July 2016, the Veteran reported getting sinusitis constantly, headaches, and received antibiotics 4 times over the last year. In January 2017, the Veteran reported getting sinus infections more than 4 times a year and having sinus problems with pressure, pain, and cannot breathe or sleep. Most recently, he was treated for sinusitis in April 2018. In light of these findings, additional development is needed to properly adjudicate the appeal. See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. §§ 3.159, 4.97, Diagnostic Code 6511 (2018); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following actions: 1. Make appropriate efforts to obtain any outstanding private treatment records for the Veteran’s service-connected chronic sinusitis from (a) Citizens Memorial Hospital dated since April 2018, (b) Mercy Surgery Center dated since July 2016, and (c) any other facility so authorized for release as identified by the Veteran. If these records cannot be located, the AOJ must specifically document the attempts made to locate them and notify the Veteran. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his chronic sinusitis. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: Private treatment records show worsened symptomatology for chronic sinusitis since the December 2015 VA DBQ examination, as dated in April 2016, June 2016, July 2016, January 2017, and April 2018. The examiner must provide all findings, separate and distinct from service-connected residuals of post-operative rhinoplasty for comminuted fracture nasal septum with allergic (vasomotor) rhinitis and service-connected granulomatous rhinitis, along with a complete rationale for any opinions provided. 3. Then, review the examination report and any medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. (Continued on the next page)   4. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Carter, Counsel