Citation Nr: 21000106 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-02 299 DATE: January 4, 2021 ORDER 1. Entitlement to a compensable rating for residuals of a nasal fracture prior to December 4, 2019 and to a rating in excess to 10 percent from that date is denied. 2. Entitlement to a compensable rating for hypertension is denied. 3. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to December 4, 2019, the Veteran’s residuals of a nasal fracture is not shown to have been manifested by 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. 2. From December 4, 2019, the 10 percent rating assigned for residuals of a nasal bone fracture is the maximum schedular rating provided for a deviated nasal septum; symptoms or impairment not encompassed by schedular criteria are not shown, or alleged. 3. The Veteran’s hypertension is not shown to be manifested by diastolic pressures predominantly 100 or more or systolic pressures predominantly 160 or more; and while it requires continuous medication, a history of diastolic blood pressures predominantly 100 or more is not shown. 4. The Veteran’s hearing acuity is not shown to at any time have been worse than Level I in the right ear or Level II in the left. CONCLUSIONS OF LAW 1. A compensable rating for residuals of a nasal fracture prior to December 4, 2019, and a rating in excess of 10 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (Code) 6502. 2. A compensable rating for hypertension is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Code 7101. 3. A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.85, 4.85, 4.86, Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1990 to May 1994. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 Department of Veterans Affairs (VA) rating decision. In October 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2019 and July 2020, these matters were remanded for additional development. [An August 2020 Board decision granted service connection for obstructive sleep apnea (OSA) as secondary to service-connected residuals of a nasal fracture. An August 2020 rating decision (implementing the Board’s grant) assigned a 50 percent rating effective August 7, 2015. A September 2020 rating decision increased the rating for residuals of a nasal fracture to 10 percent, effective December 4, 2019.] At the outset, the Board finds there has been substantial compliance with its March 2019 and July 2020 remand directives pertaining to these matters. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Additional evidence (VA outpatient treatment records from Texas Valley Costal Bend VA medical center (VAMC) from October 2013 to November 20, 2020) was received subsequent to the September 2020 supplemental statement of the case (SSOC). The September 2020 SSOC notes records from Texas Valley Costal VAMC through September 23, 2020 were reviewed. The VA outpatient records prior to September 23, 2020 received since are cumulative, and not new, evidence and VA outpatient records after September 23, 2020 do not contain information material to the matters of the ratings for residuals of a nasal fracture, hypertension, and bilateral hearing loss (they do not discuss current symptomology of those disabilities). Therefore, a waiver of Agency of Original Jurisdiction (AOJ) initial consideration of the evidence (or return of the record to the AOJ for that purpose) is not required. [A SOC addressing service connection for vertigo, heart palpitations, and urinary sensation was issued on December 16, 2019. On January 3, 2020, VA received a (timely) VA Form 9 on the matter requesting a Board videoconference hearing. Accordingly, the matters of service connection for vertigo, heart palpitations, and urinary sensation are not before the Board at this time; but will be decided by the Veterans Law Judge who conducts the hearing in the matters.] Increased Rating 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. Where the appeal is from the initial rating decision assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be assigned, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. A compensable rating for residuals of a nasal fracture prior to December 4, 2019 and a rating in excess of 10 percent from that date are denied. The Veteran’s residuals of a nasal fracture have been assigned a 0 percent rating prior to December 5, 2019 and 10 percent from that date under Code 6502 (for traumatic deviation of the nasal septum). Under Code 6502, a (maximum) 10 percent rating is warranted when there is 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. When the criteria for the minimum compensable rating are not met and the diagnostic code does not provide for a 0 percent rating, a 0 percent rating is to be assigned. 38 C.F.R. § 4.31. Under Code 6504 (for loss of part of the nose or scars of the nose), a 10 percent rating for loss of one part of the ala, or other obvious disfigurement, and for a 30 percent rating when both nasal passages are exposed. On December 2014 VA examination, the Veteran reported frequent plugging on the sinuses and allergies. A nasal bone fracture, well healed and remote, was diagnosed. The examiner found there was no septal deviation; no tissue loss, scarring, or deformity of the nose; and no nasal obstruction. The examiner noted ab X-ray of the nose found a slight defect on the distal part of the nasal bone but no deviation or obstruction; the nasal bone was in midline. The examiner opined that the there was no finding consistent with the degree of symptoms claimed. In an April 2015 Notice of Disagreement (NOD) and January 2016 VA Form 9, the Veteran asserted his left nostril is blocked, which is a constant source of lack of proper airflow in that nostril. A June 2016 VA audiology consultation treatment record notes a complaint of a “crooked sinus.” A September 2016 private ENT consultation notes the Veteran underwent an evaluation for a left nasal obstruction and issues with left-sided epistaxis. On examination, a septal deviation to the left and enlarged turbinates were noted; there was no nasal obstruction. The provider diagnosed deviated nasal septum and recommended septoplasty and turbinoplasty. At an October 2016 DRO hearing, the Veteran testified that his left nostril is always plugged up and he has to push on the nose to completely open it up. He alleged he has a full left nostril nasal blockage, that the 2014 examiner just took X-rays of his nose, and that he attempted to tell the examiner that he has to push on his nose to open it. At the October 2018 Board hearing, the Veteran testified that he has difficulty breathing through his nose and stated that his left nostril is blocked about 50 percent. He testified that his nose is mostly stuffed, he experiences pain and discomfort in his nose, and must hold it to be able to fully breath. He noted that surgery was recommended. On December 2019 VA examination (pursuant to the March 2019 Board remand), the Veteran reported a plugged nose, inability/difficulty to breath, and nasal tenderness. A deviated nasal septum was diagnosed. The examiner found there was at least a 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation; there was no complete obstruction on either side. There was no loss of part of the ala, scarring or disfigurement exposing nasal passages tissue loss, nor scarring causing disfigurement of the nose. The examiner opined his residuals of a nasal bone fracture and hypertension impair the Veteran’s ability to perform physical and sedentary activities because he cannot breathe through his nose, which contributes to his sleep apnea, and causes him to feel fatigued and unable to concentrate or focus on tasks due to being fatigue. On July 2020 VA examination addendum report, the examiner noted the Veteran has a history of nasal bone fractures, indicating that the previously “aligned” nasal fracture did not heal without deformity. He noted the most recent disability benefits questionnaire indicates that the severity of the obstruction as greater than 50 percent without total occlusion bilaterally. He opined that the extent of occlusion is an accurate representation based on records reviewed. An August 2020 Board decision granted service connection for OSA secondary to his service-connected nasal fracture disability based on the findings on the December 2019 and July 2020 VA examination reports. An August 2020 rating decision implemented the award, with a 50 percent rating, effective August 7, 2015). To warrant a compensable rating, the Veteran’s deviated septum must be shown to have been manifested by 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. Prior to December 4, 2019, although he reported decreased airflow through his left nostril, the competent (medical) evidence does not show 50 percent or more obstruction of both nasal passages or complete obstruction of one nasal passage. Notably, the December 2014 VA examiner and the September 2016 private ENT provider found no evidence of a nasal obstruction. The Board acknowledges the Veterans reports of decreased airflow; however, the regulations provide for a rating based the blockage based on percentage of nasal passage obstruction. While he sated at the 2016 DRO hearing that his left nasal passage was completely obstructed, he later testified at the 2018 Board hearing that it was only 50 percent blocked. However, he is not shown to have the requisite medical training or experience to competently opine regarding the percentage of nasal passage blockage he has. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the objective clinical findings by medical professional on the 2014 and 2016 examinations are more probative regarding the degree of nasal obstruction. Accordingly, a compensable rating under Code 6502 prior to December 4, 2019 is not warranted. See 38 C.F.R. § 4.31. From December 4, 2019, the evidence shows that the manifestations of the deviated septum are consistent with the criteria for a 10 percent rating under Code 6502. On December 4, 2019 VA examination, it was noted that there was at least a 50 percent, but not complete [emphasis added], obstruction of the nasal passage on both sides due to traumatic septal deviation. The 10 percent rating currently assigned for the Veteran’s deviated septum nasal disability is the maximum schedular rating for such disability. The record does not show/the Veteran has not identified any symptoms or impairment due to his deviated septum disability that are not encompassed by the schedular criteria for that disability. [The citation to symptoms attributable to a separate and distinct disability, like OSA, does not raise an entitlement to rating the nasal disability under the criteria for the other, co-existing, disability (and doing so would violate the pyramiding prohibition in 38 C.F.R. § 4.14.]. A rating in excess of 10 percent for the deviated septum disability is not warranted. The Board has considered whether a higher rating (under Code 6504 for loss of part of the nose or scars of the nose) may be warranted, but finds it is not. The December 2014 and December 2019 examinations do not show the Veteran has lost part of the ala or that has scarring or disfigurement exposing nasal passages. Accordingly, a higher schedular rating for his deviated septum under an alternate code is not warranted. 2. Entitlement to a compensable rating for hypertension is denied. Hypertension is rated under Code 7101 which provides for a 10 percent rating when diastolic pressures are predominantly 100 or more; or systolic pressures are predominantly 160 or more; or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. A 20 percent rating is assigned when diastolic pressures are predominantly 110 or more or systolic pressures are predominantly 200 or more. A 40 percent rating is assigned when diastolic pressures are predominantly 120 or more; and a 60 percent rating is assigned when diastolic pressures are predominantly 130 or more. 38 C.F.R. § 4.104. The Veteran’s private wellness examination records from 2013 to 2018 note numerous blood pressure readings. The only systolic reading 150 or above was 151/99 (March 2018). The only diastolic readings of 90 or above were 144/110 (May 2014), 146/90 (April 2016), 141/91 (March 2017), and 151/99 (March 2018). The highest systolic reading is 151, and the highest diastolic was 110. The Veteran’s October 2013 to November 2020 VA treatment records also note numerous blood pressure readings. The only systolic reading 150 or above was 159/72 (February 2016). The treatment records do not show a diastolic reading over 90. The highest systolic reading is 159, and the highest diastolic is 89. On December 2014 VA examination, the Veteran reported his hypertension was well-controlled with medication. It was noted that he took Losartan 100mg and amlodipine besylate 5 mg. His blood pressure readings were 126/94, 122/92, and 126/92. It was noted he did not have a history of a diastolic blood pressure elevation to predominately 100 or more. In an April 2015 NOD, the Veteran alleged he is entitled to a compensable rating for hypertension as he is now on medication to control it, while he was not on medication in service. At the October 2016 DRO hearing, he testified that he has had several blood pressure readings as high as 164/101 and that his blood pressure is well controlled with medication. At the October 2018 Board hearing, he testified that he monitors his blood pressure at home but does not keep a log. He reported that his hypertension has worsened (with some readings over 100) and that doctors have increased his medication dosage. An April 2019 VA psychiatric treatment record notes that the Veteran reported his blood pressure has been out of control and his systolic readings have been in the 160s. An October 2019 VA treatment record notes he had concerns his blood pressure reading of 133/85 is too high. The provider explained that 120/80 is an average reading and a reading of 135/85 is considered a normal reading. On December 2019 VA examination, the Veteran reported his current symptoms included nose bleeds, chest pains, heart palpitations, dizziness, vision problems, and difficulty breathing at time. He reported he cannot concentrate or exert himself because his blood pressure will go up and he is unable to work due to constant tension headaches, nosebleeds, eyes hurt, dizziness, and palpitations. It was noted that he took Losartan 100 mg daily, Amlodipine 5 mg daily, and Diovan 160 mg daily. His blood pressure readings were 150/88, 148/92, and 152/90. It was noted he did not have a history of diastolic blood pressure elevation to predominately 100 or more. The examiner did not find any other pertinent physical findings, complications, conditions, signs, or symptoms related to the hypertension. Although the Veteran has indicated the 0 percent rating for hypertension is inadequate as he must take medication to control his blood pressure, the Board notes the criteria for rating hypertension specifically takes into account the ameliorative effects of medication. The ameliorative effects of medications are not discounted, but are considered. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). While the record shows a single instance of a diastolic pressure reading of 100 or higher and he has taken medication for control of hypertension throughout, there is nothing in the record showing that he has a history of diastolic pressures predominantly 100 or higher. The Board has considered his allegations at the October 2016 DRO hearing and in a April 2019 VA treatment record that he has seen several systolic pressure readings over 160 at home, however the record does not show any systolic pressures of 160 or higher (currently or in the past), much less that systolic pressures were predominately so. Accordingly, the schedular criteria for a 10 percent rating for hypertension are not met, and such rating is not warranted. The Veteran has not identified anything unusual of exceptional about his hypertension disability picture. The preponderance of the evidence is against this claim; therefore, the appeal in this matter must be denied. Gilbert, 1 Vet. App. at 56. 3. Entitlement to a compensable rating for bilateral hearing loss is denied. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average hearing threshold. The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies is 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. On January 2015 VA audiological examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average Right 25 20 30 25 25 Left 25 25 50 35 34 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 98 percent in the left. In his April 2015 NOD and January 2016 Form 9, the Veteran stated the VA examiner was rude; he alleged that the examination was not set up to meet the VA criteria, and requested a new examination. A June 2016 VA audiology consultation notes the Veteran reported difficulty in hearing/understanding conversational speech in groups and in noisy background as well as problems with using his mobile phone even on speaker and watching TV with increased volume. Sensory hearing loss was diagnosed. While it shows word recognition scores, the audiometry is not shown to have been conducted in accordance with 38 C.F.R. § 4.85 (it is not indicated whether the Maryland CNC list was used), and was not certified for rating purposes. At an October 2016 DRO hearing, the Veteran reported that he has to have to people repeat themselves even with his hearing aids and has difficulty hearing with a lot of people in a room. He alleged the VA examiner yelled at him. At the October 2018 Board hearing, the Veteran testified that his hearing acuity had worsened. On December 2019 VA examination (pursuant to the March 2019 Board remand), audiometry revealed that puretone thresholds, were: HERTZ 1000 2000 3000 4000 Average Right 20 20 25 20 21 Left 20 25 45 25 29 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left. The Veteran reported difficulty hearing and understanding conversation, and that he often requests people to repeat themselves. On January 2020 VA examination, audiometry revealed that puretone thresholds, were: HERTZ 1000 2000 3000 4000 Average Right 20 25 25 20 23 Left 20 25 40 20 26 Speech audiometry revealed speech recognition ability of 94 percent in each ear. The Veteran reported he did not perceive any difficulties from his hearing loss. Applying the results of the January 2015 VA examination audiometry to Table VI establishes that the Veteran had Level I hearing acuity in each ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. Applying the results of the December 2019 VA examination audiometry to Table VI establishes that the Veteran had Level I hearing acuity in the right ear and Level II in the left. Under Table VII, such hearing acuity also warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. Applying the results of the January 2020 VA examination audiometry to Table VI establishes that the Veteran again had Level I hearing acuity in each ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. The record does not include any further pertinent audiometry during the period under consideration. The Board has considered the Veteran’s argument in his NOD and Form 9 and testimony at the October 2016 DRO hearing challenging the adequacy of the January 2015 examination. While he asserted that the examination was not set up to VA criteria and the examiner was rude, he did not specifically identify any specific deficiencies in the audiological examination or in the credentials of the examiner. Regardless, the findings are not inconsistent with what was found on later examinations (when the disability presumably had not improved). Both the U.S. Court of Appeals for Veteran Claims and the Federal Circuit have held that the Board is entitled to presume the competence of a VA examiner and that specific challenges to a VA examiner’s competency must be raised by the appellant to overcome this presumption. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Veteran’s allegation is a generalization and offers no particular reason to question the fitness of the provider or the adequacy the opinion. For example, the examiner (a licensed audiologist) found that the puretone testing results are valid for rating purposes and the speech discrimination scores were appropriate, and the Veteran has not produced any evidence to show that the provider relied on incorrect or inaccurate medical principles or misapplied or misconstrued medico-scientific data/standards in furnishing the January 2015 opinion. In summary, no audiometry during the evaluation period adequate for rating purposes found the Veteran’s right ear hearing acuity worse than Level 1 or his left ear hearing acuity worse than Level II. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry on January 2015, December 2019, and January 2020 VA examinations fall squarely within the parameters for a 0 percent rating, and that rating encompasses the Veteran’s self-reported functional impairment (difficulty hearing conversations, having people repeat themselves, and watching TV at a louder volume), which accepted as factual, is encompassed by the currently assigned rating. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 56. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.