Citation Nr: 21030431 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-44 720 DATE: May 18, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for epistaxis, to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran is receiving the maximum schedular rating for epistaxis under Diagnostic Code (DC) 6502, and this case does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an increased rating for epistaxis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321, 4.97, DC 6502. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to October 1979, from July to September 1982, and from January 1984 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2019, the Veteran testified before the undersigned Veterans Law Judge and a hearing transcript is in the record. This matter was previously before the Board in June 2020, when it was remanded for an opinion from VA's Executive Director of Compensation Services (EDCS). In January 2021, the EDCS issued an advisory opinion on the matter and this is also now in the record. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased rating in excess of 10 percent for epistaxis, to include on an extraschedular basis, is denied. The Veteran is service connected for epistaxis and claimed entitlement to an increased rating on November 19, 2009. The Veteran asserted, including at a February 2019 Board hearing, symptoms of this disability, including frequent nose bleeds, are worse than contemplated by the 10 percent disability rating currently assigned. For the following reasons, the Board finds that an extraschedular rating is not warranted. The Veteran's service-connected deviated nasal septum is rated under DC 6502, governing evaluations for a deviated septum. A 10 percent disability rating is warranted for a traumatic deviated septum with 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side. The Board notes that 10 percent is the maximum disability rating available under this DC. 38 C.F.R. § 4.97, DC 6502. Generally, disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321(b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. In Thun v. Peake, 22 Vet. App. 111 (2008), the United States Court of Appeals for Veterans Claims (Court) addressed at length the extraschedular provisions of 38 C.F.R. § 3.321(b). The Court held that the determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Id. at 115. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App. at 115. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. This task is to be performed by the RO or the Board. Id. In this case, the Veteran reported symptoms including frequent nose bleeds that interfere with the Veteran's ability to work. The Rating criteria only contemplates airway obstruction. 38 C.F.R. § 4.97, DC 6502. Given that the Veteran's reported symptoms include ones not found in the rating criteria, the Board finds that step one of Thun is satisfied. If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Thun, 22 Vet. App. at 116. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. This task is also to be performed by the RO or the Board. Id. The Board's June 2020 remand found that the Veteran asserted the presence of symptoms which are not contemplated by the schedular rating criteria in DC 6502. Thus, the second step is also satisfied. If these two elements are met, the case must be referred to the Director for consideration of an extraschedular rating. Id. The Court has held that neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson, 22 Vet. App. at 426 (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). This is exactly what the Board did in this matter. The Director issued a January 2021 Advisory Opinion finding that an extraschedular rating for epistaxis is not warranted based on the totality of the evidence in the record. The RO denied an extraschedular rating in a January 2021 supplemental statement of the case (SSOC). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). The Court reaffirmed the Board's jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating, holding that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The Board notes that the Veteran is currently service connected for various disabilities for a combined evaluation of 100 percent and a special monthly compensation. The Veteran had a noncompensable evaluation for epistaxis effective from June 1, 1996, and the current 10 percent evaluation has been effective since January 24, 2012. As noted above, the Veteran has reported symptoms not considered by DC 6502. Thus, the first and second elements in Thun, supra, have been established. The remainder of this analysis will focus on the third element. In November 2009, the Veteran sought private treatment for a nosebleed and had a discharge of blood on physical examination. The private physician assessed the severity as "moderate-severe" and the Veteran reported that this occurred a "few times a month" spontaneously and had been going on since the 1970s. In March 2010, the Veteran underwent a VA examination. The Veteran reported a diagnosis of epistaxis and reported constant sinus problems since 1973 with at least four non-incapacitating episodes a year. The Veteran denied antibiotic treatment. The Veteran reported interference with breathing through nose, hoarseness, and crusting, but no purulent discharge. The Veteran reported two or three nosebleeds a month, lasting less than an hour to two or three hours with obstruction of the nasal passages. The Veteran also reported dizziness and that the bleeding temporarily hindered the ability to work. Physical examination showed no nasal obstruction, deviated septum, loss of nose tissue, polyps, scars, disfigurement, rhinitis, or sinusitis. Diagnostic imaging findings were "within normal limits." The VA examiner remarked that the effect on the ability to work was "mild" and on activities of daily living "none." In March 2010 and December 2010, the Veteran alleged that the March 2010 VA examination was inadequate because it did not take place during or account for the Veteran's flareups of nosebleed symptoms. In October 2011, the Veteran sought private treatment for a nosebleed and had dried blood and erythema on physical examination. The physician referred the Veteran to an otolaryngologist. The Veteran reported to the private otolaryngologist about three recent incidents of nosebleeds during the previous week, lasting between 15 minutes to one hour or more. Physical examination showed congestion and turbinate hypertrophy. Bilateral nasal endoscopy showed "very prominent blood vessels right anterior septum" and the otolaryngologist cauterized them. At a followup visit, the Veteran reported only one 15-minute nosebleed. Physical examination showed scabs on right anterior septum, crusting, and a slight red area from recent bleeding, but there was no bleeding at the time. In January 2012, the Veteran underwent another VA examination. The VA examiner diagnosed chronic epistaxis (1973). The Veteran reported nasal congestion constantly and recurrent nosebleeds about three times per month lasting approximately one to two hours on average and requiring the Veteran to lay down and apply pressure to the nose. Physical examination showed greater than 50 percent obstruction of nasal passages on both sides and permanent hypertrophy of the nasal turbinates. Diagnostic imaging showed a "negative paranasal sinus series." The VA examiner found that the Veteran had difficulty working more than part-time hours for his job as a baggage claim agent because of frequent nose bleeds which would prevent him from working daily for eight hours because of periodic need for treatment to include lying down and applying pressure to the nose for several minutes. In January 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran reported worsening symptoms even after the 2011 cauterization. Along with the nose bleeds, the Veteran reported obstruction in both nostrils. The Veteran reported sometimes one side of the nostril bled, sometimes both bled, but there were always obstructions in both. The Veteran reported that it happened on an average of two to three times a month, sometimes only once a month, but "certainly" more than six times a year. The Veteran reported these episodes were "pretty much incapacitating." The Veteran reported that there have been occasions when working and talking to a client, and the nose just starts bleeding. The Veteran has also reported this happening while using a continuous positive airway pressure machine, treatment for sleep apnea. The Board does not find that the Veteran's epistaxis is equivalent to a 30 percent rating for sinusitis under DCs 6510 through 6514. While the Veteran reports alleged incapacitating episodes, these do not include headaches or pain and there is no indication of treatment with antibiotics. The symptomology is not similar. The case has also been referred to extra-schedular consideration which has been denied. The January 2021 Advisory Opinion from Executive Director of Compensation Service noted that based on the totality of evidence of record, no extraschedular entitlement exists for epistaxis in excess of 10 percent as the record is negative for evidence that the Veteran is impaired or impacted by the collective impact of all the service-connected disabilities or that a single disability is impacted or impaired by the service-connected disabilities as a whole or singularly. In addition, there is no evidence in the record establishing frequent hospitalizations or marked interference with work due solely to epistaxis. (Continued on the next page) After a thorough review of the record, including the opinions of the Veteran, the Board is unable to identify any evidence establishing frequent hospitalizations or marked interference with work. Rather, the impairment shown is consistent with the assigned rating. Thus, the Board finds that the third element of Thun has not been established. The Board is not suggesting that the Veteran does not have a degree of impairment as a result of his symptoms, but that is already contemplated by the rating schedule. In other words, some degree of occupational impairment is inherent in the assigned schedular ratings. However, the Veteran has not reported any hospitalizations since the 2011 cauterization. Consequently, the Board concludes that an extraschedular rating is not warranted. The claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.