Citation Nr: 21009770 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 19-16 424 DATE: February 23, 2021 ORDER An initial disability rating of 30 percent, but not higher, for perforation of the nasal septum with aggravated nosebleeds is granted. FINDING OF FACT Since the effective date of service connection, the service-connected perforation of the nasal septum has been manifested by dyspnea, frequent and severe nosebleeds, and mucosal thickening, all of which more nearly approximate allergic rhinitis with atrophic changes and ozena, and/or polyps; but neither marked ozena with anosmia nor chronic osteomyelitis or near-constant sinusitis with headaches and pain following repeated sinus surgery, has been shown. CONCLUSION OF LAW With resolution of all doubt in favor of the Veteran, the criteria for the assignment of an initial 30 percent rating, but not higher, for the service-connected perforation of the nasal septum have been more nearly approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.20, 4.27, 4.97, Diagnostic Codes 6501 (prior to October 7, 1996), 6502, 6510 6510 (1995, 2020), 6522 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to May 1969. He passed away during the pendency of the appeal, in October 2014, and the appellant is his surviving spouse, and has been substituted as the claimant for purposes of completing the appeal. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for perforation of the nasal septum, and assigned a noncompensable disability rating effective from August 24, 1973. The grant of service connection was in response to an August 2015 Board decision that found a March 11, 1975 Board denial of service connection for perforation of the nasal septum was clearly and unmistakably erroneous. The appellant’s notice of disagreement (NOD) was received in November 2016. In a May 2019 rating decision, the RO granted an initial 10 percent disability rating for the service-connected perforation of the nasal septum, effective from August 24, 1973. On the same day, the RO issued the statement of the case (SOC) in May 2019, and the appellant’s VA Form 9, substantive appeal was received in June 2019. In a September 2019 decision, the Board denied the appeal for a disability rating in excess of 10 percent for the service-connected perforation of the nasal septum. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a September 2020 Court Order granting a Joint Motion for Remand (JMR), the Court vacated the Board’s September 2019 decision and remanded the case for further development in compliance with the directives specified in the JMR. Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected perforation of the nasal septum. The appellant seeks entitlement to an initial disability rating in excess of 10 percent for the service-connected perforation of the nasal septum. Specifically, the appellant argues that the Veteran experienced recurrent and severe nosebleeds throughout his life, which were caused by an in-service cauterization performed to treat a perforation of the nasal septum. In the September 2020 Court Order, the parties agreed that (i) the September 2019 Board decision did not provide an adequate statement of reasons and bases, because the decision did not address whether the Veteran had nosebleeds which, even if present prior to service, were aggravated by his service-connected deviated septum. On that issue, service treatment records (STRs) include the Veteran's March 1968 pre-induction examination which failed to note that the Veteran had a pre-existing disability, i.e. nosebleeds. However, within days of entering service, the Veteran sought medical care because his nose bled constantly. A March 1969 service treatment record noted that the Veteran had a past history of epistaxis (nosebleeds) upon exertion and that he had nosebleeds for as long as he could remember; at least a 15-year history was reported by the Veteran. STRs from April 1969 show that the Veteran was seen for nosebleeds occurring 3-5 times per day, and was assessed with chronic allergic rhinitis. STRs from May 1969 show that the Veteran was treated during his first week of service for nose bleeds and ear pain. The record indicated that the Veteran consulted medical care regarding his nosebleeds virtually every other day while he was in service. He was seen repeatedly for several weeks for recurrent epistaxis and eventually developed a respiratory infection which required one week of hospitalization. When reevaluated, he was found to have a small perforation of the interior nasal septum, confirmed later upon physical examination. In May 1969 it was determined that an anterior septal perforation was the source of the Veteran's history with nosebleeds. He was found to have dilated vessels on the septum of the nose, which were treated with cauterization. A September 1974 VA examination shows that the Veteran complained of chronic nosebleeds and whistling sound when breathing; examination showed thin cartilage in the nose and clear sinuses. The VA examiner found that the Veteran's nasal septal perforation was caused by the cauterization in service. The examination report shows that the Veteran had “nosebleeds caused by cauterization in service,” and septal perforation. A September 1974 sinus x-ray revealed mucosal thickening throughout. Also in the record is a November 2009 letter from a private physician, Dr. D.A.S., who treated the Veteran for chronic nasal septal perforation. Dr. D.A.S. noted that the Veteran underwent multiple cauterizations of the nasal septum during service, to stop the bleeding. Dr. D.A.S. noted that such perforation causes recurrent bleeding, and that “prior cauterizations of the nasal septum could be a contributing cause” to the Veteran’s nasal septal perforation. An October 2010 letter from Dr. W at the Yale University School of Medicine indicates that the Veteran was evaluated in January 2010 and found to have hereditary hemorrhagic telangiectasia (HHT) with pulmonary arteriovenous malformations (PAVMs). Dr. W noted that the Veteran had experienced nosebleeds since ages 8-10 and that the Veteran had an extensive family history of HHT with PAVM. Dr. W further indicated that, although the Veteran's in-service cauterizations caused his nasal septum perforation, the Veteran's nosebleeds were symptoms of his hereditary HHT with PAVM; Dr. W indicated that the nasal septum perforation complicated the management of the Veteran's nosebleeds, but did not find any causal relationship between the Veteran's service and his nosebleeds. Dr. W suggested that the Veteran use a cold mist humidifier and Aquaphor inside the nose three times per day to alleviate nosebleeds. In this case, it is clear that the Veteran’s nosebleeds preexisted service, and while they may not be the direct cause of the nasal septal perforation, the competent evidence reflects that the in-service cauterizations worsened the underlying condition. In addition, the evidence shows that the cauterizations of the nasal septum contributed to the nasal septal perforation. Accordingly, the Veteran’s increased nosebleeds during service cannot be satisfactorily disassociated from the underlying service-connected disability of nasal septal perforation. Thus, in determining the proper disability rating, the service-connected disability of nasal septal perforation will include the manifestation of excessive nose bleeds, as well as the other symptoms of dyspnea and mucosal thickening. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate evaluations, also known as staged ratings, may be assigned for separate periods of time during an appeal period based on the facts found. In other words, the evaluations may be staged when the factual findings show distinct time periods during the appeal period when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, it is not shown that the service-connected disability on appeal materially changed since the effective date of service connection, and a uniform evaluation is warranted for the rating period on appeal. An unlisted disorder may be rated under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous. See 38 C.F.R. § 4.20. Nasal septal perforation and excessive nose bleeds are unlisted disorders, and therefore must be rated by analogy. In this case, the RO initially assigned a noncompensable disability evaluation for the service-connected nasal septal perforation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6502, by analogy to deviation of the nasal septum. However, when the RO increased the disability rating to 10 percent in the May 2019 rating decision, that rating was assigned pursuant to 38 C.F.R. § 4.97, Diagnostic Code as 6502-6513. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. As noted above, Diagnostic Code 6502 contains the criteria for rating deviated nasal septum. Diagnostic Codes 6510-6513 rate sinusitis. As the appeal period in this case dates back to August 24, 1973, the rating criteria in effect during any part of the appeal period must be considered. With respect to 38 C.F.R. § 4.97, the criteria for rating diseases of the nose and throat were amended, effective October 7, 1996. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Prior to the 1996 amendment, traumatic deflection of the nasal septum was rated under Diagnostic Code 6502 as follows: a noncompensable rating is assigned with only slight symptoms. A maximum 10 percent rating is assigned where there is marked interference with breathing space. In addition, prior to the 1996 amendment, sinusitis was rated as noncompensable where there are x-ray manifestations only, and with mild or occasional symptoms only. A 10 percent rating is assigned for moderate sinusitis with discharge or crusting or scabbing, infrequent headaches. For a 30 percent rating, the sinusitis is severe, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A maximum 50 percent rating is assigned for post-operative sinusitis following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. 38 C.F.R. § 4.97, Diagnostic Codes 6501, 6502, 6510 (1995). Under the current version of Diagnostic Code 6502, a 10 percent disability rating is assigned for a deviated nasal septum with 50 percent obstruction of the nasal passage on both sides, or, with complete obstruction on one side. A 10 percent rating is the maximum schedular rating that can be assigned under this diagnostic code. Under the current criteria for rating sinusitis, all forms of sinusitis are evaluated under the General Formula for Sinusitis (Diagnostic Codes 6510 through 6514). A noncompensable rating is assigned where sinusitis is detected by x-ray only. A rating of 10 percent is appropriate with one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. A 30-percent rating is appropriate with three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50-percent rating is appropriate following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, a disability rating by analogy to allergic rhinitis has also been considered. Prior to the 1996 amendment, rhinitis, atrophic, chronic was rated pursuant to Diagnostic Code 6501 as follows: A 10 percent rating is assigned when the rhinitis is manifested by definite atrophy of intranasal structure, and moderate secretion. A 30 percent rating is assigned for moderate crusting and ozena, atrophic changes. A maximum 50 percent rating is assigned for massive crusting and marked ozena with anosmia. 38 C.F.R. § 4.97, Diagnostic Code 6501 (1995). Ozena is defined as "a late stage of atrophic rhinitis with a thick mucopurulent discharge, mucosal crusting and fetor . . . ." See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1346 (30th ed. 2003). Effective October 7, 1996, Diagnostic Code 6501 was eliminated from the rating schedule, and it was replaced by Diagnostic Code 6522, under which rhinitis is current rated. Under the amended version of 38 C.F.R. § 4.97, Diagnostic Code 6522, allergic rhinitis without polyps but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation; and allergic rhinitis with polyps warrants a 30 percent evaluation. In this case, the evidence reflects that the Veteran’s symptomatology includes dyspnea, the feeling of a clogged nose, and excessive nose bleeds. While nosebleeds could be considered a type of nasal discharge analogous to the discharge covered by the criteria for rating sinusitis, the overall disability picture more nearly approximates symptomatology from which an allergic rhinitis sufferer would experience rather than a sinusitis sufferer. For example, the criteria for rating sinusitis contemplate headaches, and the Veteran’s service-connected disability was not manifested by headaches. Moreover, to assign a 30 percent rating by analogy to sinusitis, the Veteran’s disability would have to be manifested by severe and frequent headaches; and, as headaches are not shown to be a symptom, a 30 percent rating by analogy to sinusitis is not appropriate. Rather, as noted above, the overall disability picture is productive of symptoms more nearly approximating allergic rhinitis. Moreover, the severity of the overall disability picture warrants the assignment of a 30 percent rating, by analogy, under both the old, and amended regulation. A 30 percent rating by analogy to allergic rhinitis under the pre-1996 regulation is warranted because the Veteran’s overall disability picture is manifested by symptoms analogous to atrophic changes to the nasal passage, with secretion (nosebleeds) and mucosal thickening. Under the current regulation, the evidence requires allergic rhinitis with polyps to warrant a 30 percent rating. In this case, while the Veteran did not specifically exhibit polyps in the nasal cavity, and did not exhibit moderate crusting or ozena, he did require multiple cauterizations which resulted in nasal septal perforation and described periods of dyspnea because of a clogged nose. Additionally, x-rays taken in 1974 revealed mucosal thickening throughout, and an April 1969 STR reflects that the Veteran presented with nasal mucosa appearing boggy and inflamed. At that time, the impression was chronic allergic rhinitis. Given the consistent nature of frequent nosebleeds, boggy and inflamed nasal mucosa, and difficulty breathing as a result, it is reasonable to infer that the Veteran’s overall disability picture is manifested by symptoms analogous to rhinitis with some atrophic changes and/or polyps. There is nothing in the record to suggest that these symptoms improved during the appeal period. Accordingly, with resolution of all doubt in favor of the Veteran, the criteria for the assignment of an initial 30 percent disability rating under Diagnostic Code 6501 (in effect prior to October 7, 1996), and under 6522 (in effect since October 7, 1996) have been more nearly approximated since the effective date of service connection. The Veteran’s widow has stated that her late husband’s quality of life was severely affected by his frequent and severe nosebleeds, and there is no reason to doubt her credibility in this regard. Based on a review of the pre- and post-regulatory changes to these criteria, the assignment of a rating in excess of 30 percent is not warranted at any time during the appellate period. The amended criteria for rating rhinitis, under Diagnostic Code 6522, provides for a maximum 30 percent disability rating, and the criteria for a rating in excess of 30 percent under the pre-1996 amendment are not more nearly approximated. Although the pre-amended criteria for rating rhinitis allow for a 50 percent rating under the old Diagnostic Code 6501, the evidence in this case shows that the Veteran’s symptoms more nearly approximate the criteria for the 30 percent rating, and not the 50 percent rating. While the overall disability picture reflects nasal atrophy, the service-connected disability is not described as manifesting in massive crusting or marked ozena with anosmia. Thus, the criteria for the assignment of a 50 percent rating under the old Diagnostic Code 6501 are not more nearly approximated, and therefore a 50 percent rating is not warranted. Further, the Board has considered whether any other diagnostic codes would allow for an increased disability rating during the rating period on appeal. Diagnostic Code 6502, for deviated septum, only allows for a maximum rating of 10 percent, and thus would not allow the Veteran a higher rating. Diagnostic Code 6504, for loss of part of or scars of the nose, also only allows for a maximum rating of 30 percent, and thus would not allow the Veteran a higher rating. Diagnoses of granulomatous rhinitis, rhinoscleroma, and larynx and pharynx conditions are not of record. Therefore, Diagnostic Codes 6515, 6516, 6517, 6518, 6519, 6520, 6521, 6523 and 6524 do not apply. As noted above, the criteria for a rating by analogy to sinusitis is not for application as the Veteran’s service-connected disability was not primarily characterized by headaches or pain. Even assuming arguendo, that the Veteran did experience some pain and headaches at times, the evidence does not show sinusitis characterized by severe and frequent headaches, or that the Veteran suffered from chronic osteomyelitis and underwent repeated sinus surgeries. Accordingly, a higher rating based on sinusitis is not warranted under either the old, or the current sinusitis criteria. In summary, the Veteran’s overall disability picture since the effective date of service connection more nearly approximates the criteria for the assignment of a 30 percent rating, and no higher, by analogy to allergic rhinitis, under both the pre- and post-1996 regulatory changes. Accordingly, and with resolution of all doubt in favor of the Veteran, the assignment of a 30 percent rating is warranted for the service-connected nasal septal perforation with aggravated nosebleeds since the effective date of service connection. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.