Citation Nr: 21068807 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 20-08 099 DATE: November 12, 2021 ORDER An effective date prior to March 17, 2017 for a 10 percent rating for service-connected deformity of the nose is denied. FINDINGS OF FACT 1. On the record at an October 2011 Decision Review Officer hearing, the Veteran's attorney withdrew the appeal as to the issue of a compensable rating for deformity of the nose. 2. The Veteran submitted a claim for an increased rating for deformity of the nose on September 21, 2017, and an increase in disability was ascertainable on March 17, 2017. CONCLUSION OF LAW The criteria for an effective date earlier than March 17, 2017, for a 10 percent rating for deformity of the nose have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office. This appeal was previously before the Board in October 2020, at which time it was denied. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims. In a July 2021 Joint Motion for Partial Remand, the parties agreed that the Board provided an inadequate statement of reasons and bases as to whether the Veteran understood the consequences of verbally withdrawing his appeal as to the issue of a compensable rating for deformity of the nose, at an October 2011 Decision Review Officer hearing. Thus, the October 2020 decision was vacated and the claim returned to the Board. Withdrawal At the outset, the Board understands that its prior finding was vacated in order to perform a more thorough analysis as to whether the Veteran's October 2011 withdrawal of his appeal was explicit, unambiguous and "done with a full understanding of the consequences" on the Veteran's behalf. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), citing DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In this regard the Board again finds that the Veteran's request to withdraw these claims was made with a full understanding of the consequences of the withdrawal. Specifically, while the standard set forth in Acree and DeLisio is well established, neither case established, nor suggested, what line of questioning at a hearing would have been adequate enough to meet the Acree standard. In addition, although the Federal Circuit made clear in Acree that a withdrawal is not by definition "knowing" merely because it was made by an accredited representative, a veteran's representative at a hearing is certainly not an uninvolved bystander, especially when that representative is a licensed, practicing attorney who has been accredited to represent veterans in VA proceedings. Rather, in order for the appellate process to function correctly, the Board may, and indeed should, rely on licensed attorneys at hearings when they make clear to the Board's satisfaction that a request to withdraw an issue was the result of considered discussion and deliberation with the Veteran prior to the hearing. At the October 2011 hearing, the Veteran's attorney opened by indicating that the Veteran was withdrawing his appeal as to the issue of an increased disability rating for deformity of the nose, which was acknowledged by the Decision Review Officer presiding over the hearing. Subsequently, in December 2011, a supplemental statement of the case was issued. In that document, a higher evaluation for a scar on the bridge of the nose was discussed and denied. There was no indication in that document that the deformity of the nose issue was still on appeal. In April 2012, the Veteran attended a Board hearing concerning each of the claims then on appeal. The presiding Veterans Law Judge noted on the record that the only nose-related issue on appeal was the nose scar. The Veteran's attorney then withdrew that issue from appeal, and testimony was taken on the remainder of the issues. The Board notes that, had the Veteran genuinely believed that the issue of a deformity of the nose was still on appeal, it stands to reason that the issue would have been mentioned and/or addressed at this time. Rather, by the time the April 2012 hearing concluded, all nose-related claims had been withdrawn. Such was the case when, in August 2012, the Board issued a decision and remand in which it explicitly noted that the issue of entitlement to an increased disability rating for deformity of the nose had been withdrawn. In September 2012, the Veteran was contacted by VA and asked if he had any additional medical information related to the claims addressed in the Board's August 2012 remand. He indicated at that time that he did not. In April 2013, the Veteran wrote a letter to VA, indicated that he was awarded service connection for deformity of the nose in 2009, but that he had not been paid compensation for the condition. A May 2013 response explained to the Veteran that his disability rating for the condition was zero percent, and thus, noncompensable. Clearly, the Veteran was aware of the method for contacting VA if he had questions or concerns about an appeal. In this instance, his questions concerned possible retroactive disability payments and not any pending appeal for his deformity of the nose. The Board finds that this failure to address an appeal of the condition is further evidence that the Veteran was aware that it had been withdrawn. Ultimately, in September 2017, the Veteran filed a claim for an increased rating for his service-connected deformity of the nose, which the Board finds to be further, and a rather strong, indication of his awareness that the appeal had been withdrawn in 2011. In a February 2018 rating decision, a 10 percent rating was granted, effective September 21, 2017, the date he filed the claim for increase. In June 2018, the Veteran filed a notice of disagreement with the February 2018 decision and, for the very first time, claimed that he believed that the previous appeal was still pending, and the effective date of the 10 percent rating should be October 31, 2007, when he first filed the claim for an increase. In his substantive appeal, the Veteran indicated that he did not even remember attending the October 2011 hearing. In making its findings, the Board acknowledges that the Veteran experiences memory issues, and has been granted service connection for mental health conditions that include memory issues. But even when taking such symptoms into account, the Board cannot find that the Veteran's withdrawal of his appeal in October 2011 was not explicit, unambiguous and made with a full understanding of the consequences. It does not find his reports to the contrary, including that he does not remember attending a hearing, to be credible. In determining credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). VA may not discredit a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; however, personal interest may affect the credibility of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Even if the Board were to accept that the Veteran's statements regarding an unknowing withdrawal, or that he does not remember attending the October 2011 hearing, were actually truegiven that the hearing took place almost 7 years prior to such statementsuch statements still would not negate the fact that at the time that the hearing took place, the Veteran, through his attorney, withdrew the appeal at issue on the record. While a full discussion of the consequences of withdrawal were not made on the record, as such was not customary prior to the issuance of DeLisio, this does not suggest that the Veteran was not in fact aware of the consequences of his actions. The Board finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he was represented by a licensed attorney at the time of the withdrawal. He also understood the consequences of this withdrawal because he continued to pursue other claims for VA disability compensation, without any mention of the deformity of the nose claim. The Board also notes that, in addition to the reasons herein, it must find that the Veteran understood the consequences of his withdrawal, as not only was he represented by an attorney, but because as a claimant he was charged with knowledge of the law, as are all individuals dealing with the Federal government, including knowledge that "when a claim is withdrawn... it ceases to exist." See Hanson v. Brown, 9 Vet. App. 29, 31 (1996)(when a claim is withdrawn by a veteran, it ceases to exist; it is no longer pending and it is not viable); see also Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); Dent v. McDonald, 27 Vet. App. 362, 380 (2015) (quoting VAOPGCPREC 2-90 (March 1990)); Morris v. Derwinski, 1 Vet. App. 260 (1991). Importantly, the Veteran had multiple opportunities, subsequent to the hearing, in which he was informed, or through which he could infer, that the claim was no longer on appeal. His file is silent as to any relevant documents related to an appeal of the deformity of the nose for over 6 years following the October 2011 hearing at which the withdrawal was made. The Veteran was clearly aware of the process used to contact VA with concerns (as evidenced by his April 2013 letter), yet he did not at any point attempt to contact VA regarding the issue of an appeal related to an increased rating for deformity of the nose. He did not instruct his attorney to do so. The Board finds that this is because he was aware that the issue had been withdrawn. The Board is persuaded by the fact that the Veteran only began to assert that the issue had not been properly withdrawn in 2018, when he was granted an increased disability rating of 10 percent for the condition. It was only once additional financial compensation was awarded for the disability that the Veteran first began to assert that he was unaware of the withdrawal, claiming that he did not even remember attending the hearing with his attorney in which the issue was withdrawn on the record. His assertions that, despite receiving multiple pieces of correspondence from VA, including statements of the case and a Board decision in which it was noted that the issue had been withdrawn, he believed that the issue was still on appeal, are simply not credible. They are contradicted by the evidence of record, which shows that, subsequent to the October 2011 withdrawal, the Veteran continued to interact with VA, and the Board, with an understanding that the issue was no longer on appeal. See Hanson, supra. The withdrawal of the issue of a compensable disability rating for service-connected deformity of the nose was explicitly and unambiguously made, with a full understanding of the consequences. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it remains dismissed. Even so, the Board finds it would benefit the Veteran to explain that, even if it could be found that the withdrawal of his appeal was improper and the appeal were reinstated (which it explicitly does not find herein), there still exists no evidence that he met the criteria for a higher disability rating, thus entitling him to additional disability compensation, prior to March 17, 2017. The Veteran's deformity of the nose is rated under Diagnostic Code 6502. Under that code, a 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. 38 C.F.R. § 4.97, Diagnostic Code 6502. This is the only schedular rating provided under this diagnostic code. In a February 2010 VA examination, the Veteran's nasal septum was found to be "grossly midline," with left-side membrane thickening. However, the sinuses were otherwise found to be clear. Testing showed that the Veteran experienced, at most, 30 percent left nasal obstruction, without polys, septal deviation, or permanent hypertrophy of turbinates from bacterial rhinitis. There was no nasal obstruction on the right. The examiner acknowledged this obstruction but did not find that it rose to the level of septal deviation. In an April 2010 statement, the Veteran indicated that he had trouble breathing, due to his sinuses. In June 2011, the Veteran again underwent a VA sinus examination. At that time, no signs of nasal obstruction were found. Septal deviation was absent. The examiner reviewed a January 2011 CT scan of the sinuses and found that the sinuses at that time appeared grossly clear with no significant thickening seen. In May 2015, the Veteran was provided with another VA sinus examination. At that time, he reported experiencing a runny nose. A deviated nasal septum, due to trauma, was noted; however, there was less than 50 percent obstruction of the nasal passage on both sides, and complete obstruction on one side was absent. The examiner reviewed x-ray imaging from June 2011 and found the sinuses to be normal. The first indication in any of the Veteran's medical records that any kind of compensable obstruction was present was in the March 17, 2017 private records upon which the 10 percent disability rating was based. As seen herein, there is no evidence that the Veteran met the criteria for a 10 percent rating prior to that date. Thus, even if the Board could find that the Veteran's withdrawal of his appeal was improper, there still remains no evidence that his service-connected deformity of the nose met the criteria for a 10 percent rating at any point between the October 31, 2007 effective date and March 17, 2017. The Board acknowledges the Veteran's belief that his deformity of the nose was more severe than the disability ratings reflected at the time. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions. Thus, a higher rating would not be warranted even if the appeal were reinstated. Earlier Effective Date As for the effective date of the 10 percent increase, applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a)(b)(1); 38 C.F.R. § 3.400. An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1). The Veteran first submitted a claim for service connection for a nasal deformity in October 31, 2007, which was granted in a March 2010 rating decision. As noted supra, although he initially pursued an appeal of the assigned rating, the appeal was withdrawn in October 2011. The Veteran did not file a claim for an increased disability rating for his deformity of the nose disability until September 21, 2017. A February 2018 rating decision granted a higher evaluation of 10 percent effective September 21, 2017, and the Veteran timely appealed the evaluation and effective date. After a review of the evidence, a January 2020 rating decision granted an earlier effective date of March 17, 2017, the day a higher rating was first ascertainable. The earliest effective date for a compensable rating for deformity of the nose would be the date of receipt of claim for increase, or the date it was factually ascertainable an increase in disability occurred within the one-year period preceding the date of receipt of a claim for increase. In this case, the October 31, 2007 claim was withdrawn. The next claim for an increase in rating was not filed until September 21, 2017; however, the Veteran provided private medical records in which it was factually ascertainable that the criteria for a 10 percent rating were met on March 17, 2017. Thus, the Board finds that the criteria for an effective date prior to March 17, 2017, for an award of a 10 percent disability rating for deformity of the nose is not warranted. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.