Citation Nr: 21064288 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-41 059 DATE: October 19, 2021 ORDER The claim of entitlement to a compensable rating for residuals of a nasal injury, status post-nasal surgery, is denied. REMANDED The claim of entitlement to service connection for a right ankle disability is remanded. The claim of entitlement to service connection for arthritis of the bilateral knees is remanded. FINDING OF FACT The Veteran's residuals of a nasal fracture are not shown to have resulted in 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. CONCLUSION OF LAW The criteria for a compensable rating for residuals of a nasal injury, status post-nasal surgery, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6502. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from November 1966 to September 1968. These matters come before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. A transcript of the proceedings has been associated with the record. In October 2019 and September 2020, the Board remanded these issues for additional development. The Board concludes that there has only been substantial compliance with its prior remand directives as to the claim for increased compensation for residuals of a nasal injury. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, regarding the nasal injury, the RO was to obtain outstanding VA treatment records and to schedule the Veteran for a VA medical examination, which the RO did. The Veteran confirmed he would attend the examination but failed to appear for the appointment without any explanation. He did not reschedule, despite outreach attempts. As such, the RO complied as far as possible with the Board's prior directives. Although regrettable, additional remand is required for full compliance with the Board's remand instructions as to the claims of service connection for a right ankle and bilateral knee conditions. Id. For these claims, the Board directed the RO to "obtain an addendum medical opinion" regarding the etiology of the claimed conditions and directed that a new examination could be ordered "if deemed necessary by the examiner." On remand, a standard in-person examination was ordered almost immediately following issuance of the Board's decision. It appears that no attempt was made to obtain an addendum report as the RO's examination request directed the examiner to instead justify any decision not to examine the Veteran. See September 2020 Exam Request. Given the nature of the requested opinions and existing medical evidence, remand is necessary to obtain medical addendum opinions as initially directed by the Board. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). 1. The claim of entitlement to a compensable rating for residuals of a nasal injury, status post-nasal surgery. The Veteran contends that he is entitled to a compensable rating for residuals of a nasal injury. The Veteran reports a long history of sinus congestion and difficulty breathing that he believes to be associated with his service-connected nasal injury. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, 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, 126 (1999). A disability must be viewed in relation to its history. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Under DC 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 zero percent rating, a zero percent (noncompensable) rating is to be assigned. 38 C.F.R. § 4.31. In its October 2019 decision, the Board remanded this matter based on the Veteran's contention that his condition had worsened since he was examined in 2012. The Veteran underwent an examination in January 2020; however, as noted by the Board in its September 2020 remand decision, that examination did not identify or address any deviated septum, nor did it provide an estimate of any resulting blockage, which is the basis for rating an increase in disability for this condition. As such, the Board attributes no probative value to that examination, as it addressed only non-service-connected conditions. As noted earlier in the instant decision, following the September 2020 Board remand, the Veteran was offered a medical examination to clarify the current severity of his service-connected nasal condition, but he did not appear for his scheduled examination despite confirming the appointment. Further, the Veteran did not respond to subsequent attempts to reschedule the evaluation and did not provide an explanation for the missed examination. See e.g., July 2021 Report of General Information. Since the Board's last remand, the Veteran has not provided any additional evidence in support of his claim for increase. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). As such, the Board will decide the Veteran's claim based on the available evidence of record. The Veteran was initially granted a non-compensable rating for "septum, nasal, deviation," which the RO determined to be a "diagnosed disability with no compensable symptoms." According to a June 2012 VA examination, the Veteran had "on and off nasal obstruction" that he treated medically and that was not incapacitating. On physical examination, the physician observed septal deviation with 20 percent nasal obstruction on the right side and zero percent obstruction on the left. The examiner indicated that the Veteran did not have a history of sinusitis and had "occasional" difficulty breathing due to the service-connected condition. Diagnostic computed tomography (CT) testing showed "no active nasal sinus disease with mild septal deviation." The examiner opined that the Veteran had "the residual of nasal obstruction following nasal injury and septal nasal surgery during military service." This examination made no indication that additional symptoms (such as headaches, sinus pain, or sleep apnea) were present or attributable to the Veteran's nasal injury. The Veteran's VA treatment records indicate that, historically, he has complained of "chronic congestion that comes and goes," and that numerous sinus symptoms have been related to his allergies. For example, a March 2007 non-urgent care clinic note reflects the Veteran's complaint of a "sinus infection." Upon evaluation, the Veteran reported that his congestion had worsened since becoming a horse trainer and had observed that when he had a few days off work, his congestion symptoms improved." See also April 2009 allergy and immunology clinic note (indicating that the Veteran's severe allergies had started five years prior). The evidence of record reflects that the Veteran is allergic to horses, cats, and dogs, and that he has worked both as a horse trainer and with large animals during the period on appeal. See e.g., August 2018, February and September 2020 VA treatment records. The available evidence of record does not relate such sinus and allergy symptoms to his service-connected residuals of a nasal injury. The Board acknowledges the contentions made by the Veteran, through his representative, that his nasal symptoms warrant an extra-schedular rating because the assigned rating schedule does not adequately address the full extent of the Veteran's disability. See May 2015 Statement. According to this statement, the residuals of the Veteran's nasal injury include "continuous pain and pressure, headaches, sleep impairment and depression." Under Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has factors such as marked interference with employment or frequent periods of hospitalization, then the Director of Compensation Service or delegate is authorized to approve an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. See also 38 C.F.R. § 3.321(b)(1). In this case, the Board finds the schedular rating criteria adequately covers the symptoms actually attributable to the Veteran's residuals of nasal injury. Here, those symptoms include occasional congestion, with approximately 20 percent right nasal obstruction. The Board finds there is no competent or credible lay or medical evidence to show that the extra-schedular symptoms described by the Veteran (such as headaches and sleep apnea) are related to the service-connected condition. The vast majority of the available evidence shows that these claimed symptoms are attributable to the Veteran's allergic rhinitis and/or sinusitisconditions which are not service connected. See e.g., March 2015 VA treatment records (showing Veteran's complaint of nasal congestion, headache, and facial pressure for two months and his report that he was told by an allergist in the past that he was "allergic to everything."). While the Veteran's history of deviated septum was noted on this encounter, the Veteran was assessed with significant recurrent allergic rhinitis and possible underlying sinusitis. Further, the Board notes that during his hearing before the Board, the Veteran stated that he "guess[ed]" that his symptoms of headache, sinus pain and pressure and itching were due to his in-service nasal injury. While the Veteran is competent to make observations about the physical symptoms he experiences, the record does not show that the Veteran has the medical training or credentials to make a medical determination as to the etiology of such symptoms, especially given the various non-service-connected nasal conditions and allergies from which he suffers. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examination of 2012 and contemporaneous VA medical treatment records, which show, at worst, a mildly deviated septum and 20 percent obstruction on the right side. After reviewing the evidence of record, the Board finds that a compensable evaluation is not warranted for residuals of the Veteran's service-connected nasal injury at any point during the appeal period, to include as on an extra-schedular basis. The evidence does not show that the Veteran has had partial or complete nasal obstruction consistent with a compensable evaluation as required under DC 6502. 38 C.F.R. § 4.97. As such, the criteria are not met for the assignment of a compensable evaluation, and the claim is denied. REASONS FOR REMAND 1. The claim of entitlement to service connection for a right ankle disability is remanded. The Board regrets the additional delay, but remand is necessary as the RO failed to obtain addendum medical opinions regarding the Veteran's claimed right ankle and bilateral knee disabilities. While the January 2020 VA examination did not find a present disability of the right ankle, a previous radiology report from June 2012 identified small calcaneal spurs. Additionally, the Veteran has reported pain associated with the right ankle, which may constitute a present disability if it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Thus, as previously directed, an addendum opinion is necessary on remand in order to more thoroughly address the Veteran's claimed right ankle disability. The Board acknowledges that there has been inconsistency with respect to the Veteran's statements addressing a right ankle disability. Service treatment records reflect a left ankle injury in service, for which he is presently service connected. On multiple occasions, the Veteran has stated that he could not recall the onset of the right ankle injury, or he could not remember which ankle he injured during service. On other occasions, the Veteran has insisted that his right ankle was injured during service. While he has reported pain since service in the May2019 hearing before the undersigned, and this should be considered by the addendum opinion, the Board is specifically not making a credibility determination regarding these statements in this remand. See Smith v. Wilkie, 32 Vet. App. 332(2020). 2. The claim of entitlement to service connection for arthritis of the bilateral knees is remanded. The Board regrets the additional delay, but remand is necessary as the RO failed to obtain addendum medical opinions regarding the Veteran's claimed right ankle and bilateral knee disabilities. Regarding the bilateral knee conditions, the January 2020 VA examination provided a conclusory opinion with respect to direct service connection, and it did not address secondary service connection. The Veteran reported in his May 2019 hearing that he limped significantly due to his ankle disabilities, and he is presently service connected for a left ankle disability. Thus, an opinion with respect to secondary service connection is warranted. The matters are REMANDED for the following action: 1. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). 2. Obtain an addendum medical opinion with respect to the etiology of the Veteran's claimed right ankle disability based on the evidence of record. A new examination may be ordered if deemed necessary by the examiner, and it may be conducted via telehealth or other electronic means if social distancing restrictions remain in place, if feasible. A complete copy of the claims file must be provided to the examiner, including a copy of this remand. If an examination is necessary, the examiner should consider lay reports of observable symptomatology. After a thorough review of the record, the examiner should opine as to the following: (a.) Identify any and all present disabilities of the right ankle. Note: pain in of itself may constitute a disability if it causes functional impairment. (b.) For each identified disability, is it at least as likely as not (i.e. a probability of 50 percent or more) that the disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Obtain an addendum opinion with respect to the etiology of the Veteran's bilateral knee arthritis based on the evidence of record. An examination may be ordered if deemed necessary by the examiner, and may be conducted, if feasible, via telehealth during social distancing restrictions. A complete copy of the claims file must be provided to the examiner, including a copy of this remand. If examination is necessary, the examiner should take a history from the Veteran and consider lay reports of observable symptomatology. After a thorough review of the record, the examiner should opine as to the following: (a.) Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran's bilateral knee arthritis had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? (b.) Is it at least as likely as not that the Veteran's bilateral knee arthritis was secondarily caused by his service-connected left ankle disability? (c.) Is it at least as likely as not that the Veteran's bilateral knee arthritis was aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of permanence) by his service-connected left ankle disability? (d.) The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.