Citation Nr: 19158237 Decision Date: 07/26/19 Archive Date: 07/26/19 DOCKET NO. 17-01 510 DATE: July 26, 2019 ORDER An initial compensable rating for deviated nasal septum is denied. Prior to January 30, 2017, an initial compensable rating for residual scar status left varicocele ligation (also claimed as varicose veins) is denied. REMANDED Entitlement to a rating in excess of 10 percent after January 30, 2017, for residual scar status post left varicocele ligation (also claimed as varicose veins) is remanded. FINDINGS OF FACT 1. The Veteran’s deviated nasal septum does not manifest a 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. Prior to January 30, 2017, the Veteran’s linear residual scar status post left varicocele was neither unstable or painful. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a deviated nasal septum disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.97, Diagnostic Code 6502. 2. Prior to January 30, 2017, the criteria for an initial compensable rating for residual scar status post left varicocele ligation (also claimed as varicose veins) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2008 to March 2013. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, an RO rating decision increased the rating for residual scar status post left varicocele ligation from noncompensable to 10 percent disabling, effective January 30, 2017. On a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by the law and regulation, and it follows that such claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, such issue has been recharacterized as shown on title page of the decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 1. Entitlement to an initial compensable rating for deviated nasal septum. The Veteran’s deviated nasal septum disability is rated under Diagnostic Code (DC) 6502. Under DC 6502, a 10 percent rating is assigned for traumatic deviation of the nasal septum where there is a 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side of the nasal passage. 38 C.F.R. § 4.97, DC 6502. After review of the relevant medical and lay evidence, the Board finds that the criteria for an initial compensable rating for deviated nasal septum have not been met. During the pendency of the appeal, the Veteran has undergone three separate VA examinations for his deviated septum disability; each examination showed similar symptomatology. At the first examination in June 2015, he complained of nasal obstruction and difficulty breathing following nasal fractures and closed nasal reductions in 2006 and 2012. Upon physical examination, the VA examiner recorded no findings related to chronic sinusitis, incapacitating episodes, or rhinitis. Moreover, there was no obstruction greater than 50 percent for the nasal passage on both sides or a complete obstruction of one side of the nasal passages due to traumatic septal deviation. Imaging studies revealed nasal fracture of an indeterminate age. The examiner concluded the deviated septum did not impact the Veteran’s ability to work. The Veteran was afforded a second VA examination for his deviated septum in October 2015. During the physical examination the examiner noted rhinitis; however, there was no nasal obstruction greater than 50 percent for both sides of the nasal passage. Moreover, the deviated septum did not present findings of a greater than 50 percent obstruction on both sides or a complete obstruction on one side of the nasal passage due to septal deviation. Imaging revealed no significant abnormalities. There was no impact on ability to work. The final VA examination was conducted in January 2017. The examination report did not show findings related to rhinitis. Once again, the physical examination revealed there was no obstruction greater than 50 percent for both sides of the nasal passages or complete obstruction of one side due to traumatic septal deviation. The deviated septum continued to have no impact on employment. Based on the relevant evidence above, the Board finds that the Veteran’s deviated nasal septum reflected symptomatology more nearly approximated by a noncompensable rating. Three separate VA examiners have found no nasal obstruction greater than 50 percent for both nasal passages or a complete obstruction of one side due to septal deviation. The Board finds an initial compensable rating is not warranted. The VA examination reports consistently recorded symptoms that were not more nearly approximated by the next-higher rating of 10 percent disabling. All three VA examiners conducted physical examinations, which showed no obstruction of both nasal passages greater than 50 percent or the complete obstruction of one nasal passage. The Board recognizes the Veteran’s contentions regarding his deviated nasal septum symptoms. Particularly, his statements regarding breathing difficulties. He is competent to make his assertions based on his observable symptomatology and the Board finds him credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that the three VA examination reports which considered the Veteran’s medical history, lay statements, and conducted physical examination of the nasal passages carry the greatest weight. As the examinations were conducted by trained medical professionals and provided direct observation of the nasal passages. The weight of competent, probative evidence shows the Veteran’s symptomatology reflects a frequency, severity, and duration commensurate with the criteria for an initial noncompensable rating. Moreover, the symptoms have been generally the same level of disability during the period on appeal; therefore, staged ratings are not necessary. See Fenderson, 12 Vet. App. at 126-27. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial compensable rating for the Veteran’s deviated nasal septum disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial compensable rating prior to January 30, 2017, for residual scar status left varicocele ligation (also claimed as varicose veins). The Veteran’s residual scar status post left varicocele ligation disability is rated under Diagnostic Code (DC) 7804. Scars are evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. DC 7800 applies to burn scar(s) of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. Under Diagnostic Code 7800 (disfigurement of the head, face, or neck), a 10 percent disability rating is authorized if the Veteran displays one of the eight characteristics of disfigurement listed in DC 7800 Note 1. These characteristics are (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent evaluation is warranted, if there are visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features [nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips], or if there are two or three characteristics of disfigurement. Id. A 50 percent evaluation is authorized if there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features [nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips], or if there are four or five characteristics of disfigurement. Id. An 80 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features [nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips], or if there are six or more characteristics of disfigurement. Id. DC 7801 provides ratings for scars, other than the head, face, or neck that are deep and nonlinear. Scars that are deep or that cause limited motion in an area or areas exceeding six square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.), are rated 10 percent disabling. Deep and nonlinear scars in an area or areas exceeding 12 square inches (77 sq. cm.), but less than 72 square inches (465 sq. cm.), are rated 20 percent disabling. Deep and nonlinear scars of an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.), are rated 30 percent disabling. Deep and nonlinear scars of an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent disabling. 38 C.F.R. § 4.118, DC 7801. DC 7802 provides ratings for scars, other than the head, face, or neck that are superficial and nonlinear. Superficial scars that consist of an area or areas of 144 square inches (929 sq. cm.) or greater are rated 10 percent disabling. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; five or more scars that are unstable or painful warrant a 30 percent rating. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be evaluated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. After review of the relevant medical and lay evidence, the Board finds that the criteria for an initial compensable rating prior to January 30, 2017, have not been met. In June 2015, the Veteran was afforded a VA examination. He reported that he underwent left varicocele ligation surgery in 2012. Upon physical examination, the VA examiner found no varicose veins or post-phlebitic syndrome was present. Furthermore, the scar post-surgery was not painful or unstable. There was no impact on his ability to work. The Veteran was afforded another VA examination in February 2016. The VA examiner found no varicose veins present upon physical examination. Moreover, the examiner recorded the residual scar from the ligation surgery was linear measuring 4.5cm x 0.5cm. The scar was not painful or unstable. The scar did not impact employment. Based on the relevant evidence above, the Board finds that the Veteran’s residual scar reflected symptomatology more nearly approximated by a noncompensable rating. The VA examinations conducted in June 2015 and February 2016, recorded one linear scar measuring 4.5cm x 0.5cm. The scar was not painful or unstable. The Board notes in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R § 4.31. Here, DC 7804, does not provide a zero percent rating. As noted above, the criteria for a 10 percent rating is one or two scars that are unstable or painful. The Board finds an evaluation initial compensable rating is not warranted. The VA examination reports recorded symptoms that were not more nearly approximated by the next-higher rating of 10 percent disabling. Neither VA examination report annotated that the one linear residual scar was painful or unstable. The Board recognizes the Veteran’s assertions regarding his scar disability. In this instance, the Board places greater weight on the objective medical findings gathered by clinicians with medical training and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The June 2015 and February 2016 VA examiners both conducted physical examinations and recorded measurements of the Veteran’s scar. The Board finds that the competent evidence from the examination reports outweigh the lay evidence provided by the Veteran. The weight of competent probative evidence shows that the Veteran’s symptomatology reflects a frequency, severity, and duration more approximately commensurate with the criteria for an initial noncompensable disability rating. As such, a higher rating is not more nearly approximated. Further, all possible applicable diagnostic codes have been considered for the period discussed above; however, the Veteran’s residual scar is not of the head, face, or neck; is not deep and nonlinear; and is not associated with underlying soft tissue damage. Moreover, the scar does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802 are not applicable. The evidence of record also does not reflect that there are other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under DC 7805. Furthermore, the symptoms have been generally the same level of disability during the period above; therefore, staged ratings are not necessary. See Fenderson, 12 Vet. App. at 126-127. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial compensable rating for the Veteran’s residual scar status post left varicocele ligation disability prior to January 30, 2017. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent after January 30, 2017, for residual scar status post left varicocele ligation (also claimed as varicose veins) is remanded. In January 2017, the Veteran was afforded a VA examination related to the residual scar status post left varicocele ligation disability. The VA examiner recorded the scar was linear measuring 2.4cm x 0.3cm. Notably, the examiner annotated that the Veteran reported the scar was pulsating and caused daily pain inside the scrotum area. Consequently, in September 2018, an RO rating decision increased the residual scar disability from noncompensable to 10 percent disabling, effective January 30, 2017. However, two months later in March 2017, the Veteran underwent a VA examination related to a scar from his right inguinal hernia repair. The VA examiner recorded that the VA established diagnosis of residual scar post left varicocele ligation had changed, because there was no longer a visible scar from the varicocele surgery. The issue was considered resolved. The Board finds the contradictory examination reports showing a resolution of the issue in a two-month timeframe warrants further review. As such, the Board remand directs the AOJ to schedule the Veteran for another VA examination to determine the current symptomatology of the residual scar status post left varicocele ligation surgery. Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.) The matter is REMANDED for the following actions: 1. Update/Obtain VA treatment records from May 2019 to the present. Document all requests for information as well as responses in the claims file. 2. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine his current symptomatology related residual scar status post left varicocele ligation disability. The examiner is to specifically address: The contradictory findings in the March 22, 2017, VA hernia examination, which found no visible varicocele post-surgery scar and the January 25, 2017, VA examination, which recorded the varicocele scar as being unstable. See January 30, 2017 C&P Examination and April 12, 2019 C&P Examination. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.