Citation Nr: A21019164 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200511-86333 DATE: December 2, 2021 ORDER An initial compensable rating for the Veteran's service-connected broken nose residual is denied. A 10 percent rating under 38 C.F.R. § 3.324 for multiple, noncompensable, service-connected disabilities is denied. FINDINGS OF FACT 1. The evidence available for review fails to establish 50-percent obstruction of the nasal passage on both sides, complete obstruction on one side, loss of part of the nose exposing both nasal passages, or loss of part of one ala, or other obvious disfigurement. 2. The evidence available for review fails to establish clear interference with normal employment from the Veteran's two permanent non-compensable service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for the Veteran's service-connected broken nose residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.4, 4.14, 4.20, 4.97, Diagnostic Code 6502, 6504. 2. The criteria for a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities have not been met. 38 U.S.C. 501(a), 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1966 to May 1966, from December 1966 to July 1967, and from July 1971 to August 1971. The issue of the Veteran's nose disability was previously before the Board of Veterans' Appeals (Board) in January 2020, when the Board remanded the issue for further development. In a March 2020 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for a broken nose with a 0 percent rating. This issue is currently back before the Board on appeal of the March 2020 rating decision by the RO seeking an initial compensable rating. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303. Increased Ratings Disability ratings are determined by applying the criteria set forth in the 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. 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 condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. An initial compensable rating for the Veteran's service-connected broken nose residuals. The Veteran asserts that a higher rating is warranted for his service-connected broken nose residuals. The Veteran's broken nose residuals are rated under 38 CFR 4.97, Diagnostic Code (DC) 6502, for traumatic deviation of nasal septum, or DC 6504, for loss of part of nose or scars. Under DC 6502, a 10 percent rating is warranted for 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. DC 6504 provides a 30 percent rating for loss of part of the nose exposing both nasal passages, or 10 percent for loss of part of one ala, or other obvious nose disfigurement. The Veteran currently has a 0 percent disability rating under DC 6502. In the Veteran's May 2020 VA Form 10182 Appeal to the Board (Notice of Disagreement) he elected the Evidence submission docket, so there is no Board hearing evidence of record to support this claim. Because the Veteran timely appealed the initial rating and has persistently pursued the appeal since then, the appeal period goes back to the effective date of his initial nose disability compensation claim in September 2017. The Veteran's first VA examination during the appeal period is from November 2017. He was diagnosed with nasal fracture, the result of a vehicle accident on his way to Marine Boot camp in 1966, fracturing his left forearm and nose. At this exam, the Veteran said the nasal fracture did not bother him until he was given a CPAP 6 months prior to the November 2017 VA examination. He stated that despite the CPAP, "I cannot breathe thru my left nose." He said nasal surgery was recommended, but not scheduled at the time of the exam. The Veteran reported treating the issue with "nasal spray." Pertinent physical findings at the time included nasal fracture with residual slight prominence of left nasal, no scars (surgical or otherwise) related to any conditions or to treatment, no loss of part of the nose or other scars exposing both nasal passages, no loss of part of the nose or other scars causing loss of part of one ala, and no loss of part of the nose or other scars causing other obvious disfigurement. The Veteran submitted a private February 2019 medical report reviewing the injuries from the auto accident in 1966 on the way to Boot camp. The diagnostic consultant noted that the Veteran injured his jaw, nose, bilateral legs, and bilateral arms in the accident. There is no further discussion of the Veteran's nose injury in the four-page report. The Veteran submitted a lay statement in January 2020, where he talks about the June 1966 auto accident, saying he was thrown through the windshield of the car, spent several weeks in the hospital, and several months at home in recovery. He says the doctors at the time thought injuries to his left arm from the accident would result in a medical discharge, but he says nothing about his nose injury. In a March 2020 VA examination, the examiner reviewed the Veteran's electronic health records, VA e-folder and conducted an in-person examination. This examiner also diagnosed a deviated nasal septum (traumatic). She found there is not a least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation nor is there complete obstruction on left or right side due to traumatic septal deviation. The examiner also noted the Veteran's recall of the 1966 car accident en route to Marine boot camp. "I went through the windshield...They had to sew my nose back on." The Veteran described that they had his mother bring a picture in to see what his nose looked like. "It was fractured..." He said they straightened it as much as they could. "I can't breathe as well out of this side"[left]. The Veteran also described that he used to have a scar on the right side of his nose, which is no longer visible. As outlined above, both the November 2017 and March 2020 VA examinations consistently describe that the Veteran did not have at least 50 percent obstruction of his nasal passage on both sides, nor complete obstruction on one side. DC 6502 provides a 10 percent disability rating for traumatic nasal deviation which causes a 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. Neither the November 2017 nor the March 2020 VA examinations report include medical findings that satisfy the criteria to award a 10 percent rating under Diagnostic Code 6502. Although the Veteran reported having trouble or inability to breathe through his left nasal passage while using a CPAP at night for the first time six months prior to the November 2017 VA examination, the Veteran's statement does not meet the criteria for a 10 percent award under DC 6502. DC 6504, which requires loss of part of the nose or scars exposing both nasal passages for 30 percent, or loss of part of one ala, or other obvious disfigurement for 10 percent, is also inapplicable. Both VA examiners report no missing parts or obvious disfigurement of the Veteran's nose. Although the Veteran reported that his nose had to be sewn back on, the examinations during the appeal period show the Veteran's nose was whole and without obvious disfigurement. The Board has considered both applicable Diagnostic Codes related to disabilities of the nose for compensable schedular ratings. Neither DC 6502 nor DC 6504 criteria result in a compensable rating for the Veteran's traumatic nose injury residuals. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a compensable rating for traumatic nose injury residuals. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. A 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities. The Veteran contends that he should receive a 10 percent disability rating based on multiple, noncompensable, service-connected disabilities. 38 CFR 3.324 says that whenever a Veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10-percent rating, but not in combination with any other rating. The benefit provided for by 38 C.F.R. § 3.324 is permissible only when there are only noncompensable service-connected disabilities. As such, once a compensable evaluation for any such service-connected disability has been awarded, further benefit under 38 C.F.R. § 3.324, is not possible. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). The Veteran's broken nose residuals and hearing loss, left ear, are service-connected and are rated as noncompensable under the applicable schedular rating criteria. However, the Veteran has compensable service connected unspecified depressive disorder, rated as 70 percent disabling. Thus, for the period beginning February 11, 2019 as the Veteran has a compensable evaluation for one of his service-connected disabilities, he is no longer entitled to a 10 percent evaluation under 38 C.F.R. § 3.324. Thus, the Veteran's claim for a higher evaluation based upon 38 C.F.R. § 3.324 must be denied as a matter of law for this period. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the period prior to February 11, 2019, the first criteria under 38 CFR 3.324 are met in that the Veteran has more than one (two), and they are both rated as noncompensable under applicable Diagnostic Codes. The third criteria, their being "of such character as clearly to interfere with normal employability," is the question that remains. From the Veteran's November 2017 VA broken nose medical report, it says "no sinus, nose, throat, larynx or pharynx condition impact his ability to work." The March 2020 VA examination echoes this assessment. Review of the Veteran's lay statement as well as the private medical report fail to allege any negative impact on the Veteran's ability to work because of the Veteran's broken nose residuals. The February 2019 private medical report submitted by the Veteran also contains no negative work impact statement due to the Veteran's nose. As for the Veteran's other noncompensable service-connected disability, left ear hearing loss, a private medical consultant in her February 2019 report opined that the Veteran when tested in a room wherein normal noise (air conditioner, computer, and soft background music) is introduced to test functional hearing under normal day-to-day conditions. 256 cps, 512 cps stimuli are employed along with spoken words, and whispered words at a distance of 5 feet. According to the private chiropractor, this testing reveals that the Veteran has an estimated bilateral hearing loss under normal conditions of 40 percent of the non-service-connected right ear and 40 percent of the service-connected left ear. The VA June 2019 audiological examiner used VA approved standard testing methods and found the Veteran's hearing loss to be noncompensable. When asked, the examiner reported that the Veteran's hearing loss had no impact on the ordinary conditions of life, including ability to work. In evaluating the conflicting medical opinions, the medical professionals are both competent as such to provide medical opinions; however, VA requires state-licensed audiologists to perform specific hearing tests to be considered suitable for evaluation purposes. The private hearing loss evaluation submitted by the Veteran was conducted by a chiropractor, also the testing method and test itself as described does not meet VA standards. Additionally, the Veteran himself reported that his hearing loss had no impact on his ability to work or on the ordinary conditions of life. For the reasons mentioned above, the Board gives greater weight to the June 2019 VA audiological examination than to the private February 2019 report submitted by the Veteran. Finally based on the rule of 38 CFR 3.324, even if the Board were to find that the Veteran's service-connected left ear hearing loss clearly interferes with normal employability, that does not warrant a10 percent compensation rating contemplated by 38 CFR 3.324, because the rule requires two or more noncompensable service-connected disabilities, which clearly interfere with normal employability. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a 10 percent rating for multiple noncompensable, service-connected disabilities, because the third criteria: their being "of such character as clearly to interfere with normal employability," is not met by either or at most one of the two otherwise qualifying disabilities. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. 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.