Citation Nr: 21024175 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-55 451 DATE: April 22, 2021 ORDER A 10 percent rating for a broken nose to include a deviated septum and problems breathing after corrective nose surgery (nasal disability) is granted. REMANDED Entitlement to service connection for a gastrointestinal (GI) condition and acid reflux is remanded. FINDING OF FACT The Veteran’s service-connected nasal disability symptoms more closely approximate 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a 10 percent disability rating for a nasal disability have been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6502. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 2005 to July 2007. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a September 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). These matters on appeal were denied in a December 2019 Board decision. In November 2020 the U.S. Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMR) which vacated the Board’s previous denials. These matters will therefore be readjudicated considering the Courts findings of error. 1. A compensable evaluation for a nasal disability Legal Criteria Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Diagnostic Code 6502 assigns a 10 percent rating if the disability presents 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. Factual Background & Analysis The Veteran currently receives a noncompensable rating for residuals of a nasal fracture under Diagnostic Code (DC) 6502, which provides ratings for deviations of the nasal septum. The Veteran communicated in a December 2015 statement that he has frequent nosebleeds daily. He stated that his nostrils are constantly clogged, and one side is blocked with the other being partially blocked. He has difficulty sleeping and he wakes up gasping for air because of it which causes daytime fatigue. The Veteran was afforded a VA examination in November 2018 to determine the severity of his service-connected nasal disability. The Veteran reported since undergoing corrective surgery in 2009 that he suffers from small trace bloody drainage in tissues daily, nose bleeds that occur about once per week, nasal bone pain that worsens during extreme weather, and mild chronic nasal tenderness. The Veteran also reported flare-ups of nasal pain with the pain radiating down to upper gums/teeth. The Veteran also described having difficulties breathing as well due to his disability. Upon examination, the VA examiner noted mild tenderness with palpation, slightly swollen nasal turbinates, and trace bloody mucoid discharge. The examiner noted that the Veteran did not have a greater than 50 percent obstruction of the nasal passage due to rhinitis and/or deviated nasal septum. Nor was there any evidence of a complete obstruction on the left or right side due to rhinitis and traumatic septal deviation. The Board has carefully reviewed the lay and medical evidence of record and finds that the Veteran’s nasal symptoms closely approximate the schedular criteria for a 10 percent disability rating under DC 6502. Per the Veteran’s December 2015 lay statement, he stated that his nose is constantly clogged, and one side is blocked with the other being partially blocked. The Veteran is competent to report observable symptoms such as decreased airflow through his nostrils. Barr. v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The Board emphasizes that the Rating Schedule is meant to compensate for impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s nasal disability symptoms clearly cause impairment in earning capacity due to symptoms approximating 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, DC 6502. As such, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether a 10 percent disability rating under DC 6502 is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. This is the maximum schedular rating available under DC 6502. 2. Entitlement to service connection for a gastrointestinal condition and acid reflux is remanded REASONS FOR REMAND As to the claim for service connection for a gastrointestinal condition and acid reflux, the Veteran communicated in a December 2015 statement that he suffers from acid burning his throat after eating, he experiences chest pain and substernal arm pain in addition to difficulties swallowing food and regurgitation. The Court’s JMR explained that the Board erred by failing to consider whether the Veteran’s subjective GI symptoms may be characterized as a “qualifying chronic disability” pursuant to 38 C.F.R. § 3.317 given the Veteran’s qualifying service in Southwest Asia. Further, a more recent December 2019 VAMC Primary Care Note documents that the Veteran has a chronic problem with looseness or liquid stools on a near daily basis. Occasionally he will have episodes of constipation for which she will take MiraLAX or Metamucil. Consequently, the Board finds that a remand is warranted for a new VA examination that considers the above documented GI symptoms and, considering the Veteran’s qualifying service in Southwest Asia, whether the Veteran’s subjective report of acid reflux symptoms may be due to a “a medically unexplained multisymptom illness that is defined by a cluster of signs or symptoms,” such as, functional gastrointestinal disorder (excluding structural gastrointestinal diseases).” 38 C.F.R. § 3.317(a)(2)(B)(3). The matter is REMANDED for the following action: 1. Associate any additional VA treatment records. 2. Schedule the Veteran for the appropriate examinations, to include a Gulf War examination, by appropriate clinicians to determine the nature and etiology of the Veteran’s claimed GI symptoms. The clinician/s must respond to the following prompts: (a.) Identify any current diagnoses pertaining to the Veteran’s GI symptoms. (b.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current symptoms began in active service or are otherwise related to active service, to include as due to exposure to harmful substances in Southwest Asia. (Continued on the next page)   (c.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s symptoms constitute a sign or symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness pursuant to the provisions of 38 C.F.R. § 3.317. Complete and detailed rationales should be included in support of all opinions provided. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.