Citation Nr: 21032664 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-18 320 DATE: May 27, 2021 ORDER A compensable rating for post-nasal septoplasty is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include referral for consideration of an extraschedular TDIU prior to November 10, 2016, is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran's residuals of post-nasal septoplasty were not more nearly manifested by 50 percent obstruction of the nasal passages on both sides, or, complete obstruction of the nasal passages on one side. 2. During the appeal period prior to November 10, 2016, the Veteran did not meet the numeric requirements for schedular TDIU and there is not sufficient evidence to substantiate a reasonable possibility that he is unemployability by reason of his service-connected disabilities to warrant referral for extraschedular consideration of TDIU; from November 10, 2016, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for post-nasal septoplasty are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6502. 2. The criteria for TDIU, to include referral for consideration of an extraschedular TDIU prior to November 10, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to April 1971. Unfortunately, the Veteran passed away in November 2020, during the pendency of the appeal. The Appellant, his surviving spouse, has been substituted in this appeal. See Notification Letter (January 2021). These matters come before the Board of Veteran's Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a November 2019 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In February 2020 and November 2020, the Board remanded the Veteran's claims for additional development. There has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 1. Entitlement to a compensable rating for post-nasal septoplasty is denied. The Veteran had asserted that residuals related to his post-nasal septoplasty condition warranted a compensable rating. See Hearing Transcript (November 2019). The Veteran had testified that his postnasal septoplasty condition necessitates him to wear a sinus mask, which does not help and results in him losing sleep every night, because of blockage where CPAP dries up sinuses. See Hearing Transcript (November 20919). Having carefully reviewed the evidence of record, the Board concludes that the preponderance of the evidence is against assigning a compensable rating for the Veteran's post-nasal septoplasty. Neither the lay nor the medical evidence more nearly reflect the criteria for a compensable rating. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6502. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran was assigned a noncompensable rating for post-nasal septoplasty under Diagnostic Code 6502, governing the evaluation of a deviated nasal septum. Under Diagnostic Code 6502, a maximum schedular 10 percent rating is warranted when there is a 50 percent or greater obstruction of the nasal passage on both sides or a 100 percent obstruction on one side. 38 C.F.R. § 4.97, DC 6502. Historically, prior to the relevant appeal period, the October 2008 VA examination report noted that the Veteran had suffered a nasal septal perforation as a complication of nasal septoplasty surgery. A septal button was placed in the perforation by VA in 2008 to relieve the previous symptoms of crusting and bleeding around the margin of the septal perforation. During the appeal period, the Veteran underwent three VA nasal examinations. The September 2012 VA exam report showed a diagnosis of deviated nasal septum status post septoplasty with residual perforation of nasal septum and nasal deformity. The Veteran reported progressive difficulty breathing out of the left side of his nose with a persistent sensation that either side of his nose was stopped up during the day with symptoms worse at night. It was noted that in June 2012, the septal button was replaced after it was dislodged. The Veteran indicated that the nasal button would often dislodge when he was cleaning his nose. A physical examination revealed that the Veteran did not have sinusitis. Although rhinitis was found, the examiner noted it was not manifested by greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. Moreover, there was no permanent hypertrophy of the nasal turbinates and no nasal polyps or granulomatous condition. A nasal x-ray obtained in September 2012 revealed no fractures, dislocation, bony lesions or soft tissue abnormalities. Furthermore, the nasal bones were unremarkable with no radiographic evidence of a deviated nasal septum. There was comprise of the nasal passage on the left. The examiner noted the Veteran's nasal condition did not impact his ability to work nor was any time lost from work due to nasal symptoms. A January 2017 VA examination report showed a diagnosis of post-nasal septoplasty with symptoms of congestion and discomfort. The Veteran reported a significant runny nose and blockage of mucus/nasal congestion which he had to frequently clean out and which caused nosebleeds. A physical inspection of the Veteran's nasal passages showed a septal button present. There were no visible scars and the nasal turbinates appeared dry and pink. The Veteran reported that his condition impacted his ability to work because it interfered with his sleep and overall well-being. He also noted considerable discomfort when laying down for prolonged periods of time and having to remove mucus buildup. The March 2020 VA examination report showed a diagnosis of post-nasal septoplasty septal button due to chronic septal perforation. The Veteran reported daily symptoms of nasal drainage since 1971. Although it was noted the placement of the septal button helped reduce the air coming through the opening, he continued to have persistent nasal drainage. The Veteran reported that after he started using a CPAP for treatment of obstructive sleep apnea, the drainage would dry up and crust in his nose and he had to clean it out frequently, including during the night. A physical examination of the internal nose revealed the Veteran had a septal button visible in the nasal septum; the button had been changed in February 2018 at VA. With respect to functional and occupational impairment, the Veteran reported that he would have to take unscheduled breaks due to fatigue during the day which presented a safety issue. In February 2021 and March 2021, addendum statements to the March 2020 examination report were obtained. It was noted that the Veteran's March 2020 paranasal sinuses x-ray was negative for any abnormalities and showed that the visualized paranasal sinuses were clear. There was no air-fluid level and the nasal septum was midline. There was no evidence of sinusitis. The examiner noted the Veteran's condition caused drainage to dry up and crust in his nose causing the Veteran to clean out the dried mucous. The Veteran's VA treatment records indicate in February 2018, he was treated at the ENT clinic for replacement of the septal button in the septal perforation. At the visit, the Veteran indicated that the septal button had to be replaced every year after it became dislodged. He also stated that he used saline spray and that he had more issues prior to placement of the septal button in 2008. The Board has considered the Veteran's statements and November 2019 testimony. At his November 2019 hearing, the Veteran reported that his symptoms have worsened during the appeal period and he lost sleep every night from his CPAP machine drying up mucous build-up which he had to then clean out. He also reported sinus swelling. The Board recognizes that the Veteran was competent to report his symptoms such as nasal drainage and that his disability worsened with the use of his CPAP and required the replacement of the septal button several times during the appeal period. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the evidence does not more nearly reflect the criteria required for a compensable evaluation at any time during this appeal. 38 C.F.R. § 4.7. Generally, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believed he met the criteria for a higher disability rating, the medical findings do not meet the schedular requirements for a compensable evaluation as they do not show any nasal passage obstruction, which is required for a compensable rating under the Rating Schedule. To the extent that the Veteran believed he had sinus swelling and his symptoms of nasal drainage, crusting and nasal obstruction warranted the assignment of a compensable rating, the Board notes that he was not competent to provide a medical opinion on this matter as he lacked the requisite medical expertise and it is noted that the percentage of nasal obstruction and the presence of a sinus disease would not be susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). The Board has also considered whether a compensable rating may be assigned under any other potentially applicable provision but finds that there is no basis to assign a compensable evaluation under any other schedular criteria. However, there are no pertinent physical findings, complication, conditions, signs and/or symptoms related to this condition. The percentage ratings contained in the Rating Schedule are intended to compensate for impairment in earning capacity and, here, no such impairment from post-nasal septoplasty is demonstrated by the evidence of record. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board affords greater weight to the findings of the three VA examiners as the reports were prepared by skilled medical professional after review of the record and examination of the Veteran, and, addressed those criteria necessary to evaluate the disability. The Veteran had not presented findings showing his post-nasal septoplasty disability approximated the criteria for a compensable rating. Lastly, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to a TDIU is denied. The Veteran had asserted that his service-connected PTSD symptoms, including chronic sleep impairment, fatigue, anger, irritability and difficulty concentrating, impacted his ability to maintain gainful employment as a long-haul truck driver. The Veteran stopped working in 2009, after 16 years of employment. See VA Form 21-8940 (April 2017) & Hearing Transcript at 10-12 (November 2019). He additionally indicated that symptoms related to his service-connected post-nasal septoplasty interfered with his ability to get a full night's sleep which in turn caused fatigue while driving his truck during the day. See Hearing Transcript at 10-11 (November 2019). During the appeal period prior to November 10, 2016, the Veteran was service connected for PTSD (50%) effective June 28, 2007; residuals of septoplasty (0%) effective June 19, 2008; and tinnitus (10%) effective October 26, 2016. Thereafter, the Veteran was service connected for bilateral hearing loss (40%) effective November 10, 2016. As such, his combined disability rating was 50 percent from June 28, 2007 and 60 percent from October 26, 2016. The Veteran was subsequently service connected for bilateral hearing loss (40%) effective November 10, 2016 bringing his combined rating to 70 percent from that date. Moreover, as a consequence of the Board's grant of an increased rating for PTSD (70%), the combined rating increased to 80 percent from July 29, 2020. The Board concludes that, during the appeal period prior to November 10, 2016, the Veteran did not meet the numeric requirements for schedular TDIU under 38 C.F.R. § 4.16(a) and that referral to the VA Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16(b), 4.18, 4.19. Also, the Board concludes that, during the appeal period on and after November 10, 2016, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16(a), 4.18, 4.19. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, prior to November 10, 2016, the Veteran did not meet the numeric requirements for schedular TDIU under 38 C.F.R. § 4.16(a). Notwithstanding that the criteria for schedular TDIU are not met for that time period, TDIU is warranted whenever service-connected disabilities cause unemployability pursuant to 38 C.F.R. § 4.16(b), but the Board is precluded from awarding a TDIU in the first instance under 38 C.F.R. § 4.16(b) without referring the matter to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). As explained below, a preponderance of the evidence weighs against referral for extraschedular consideration of TDIU for the period prior to November 10, 2016; and the weight of the evidence is against finding that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities from November 10, 2016. Turning to the evidence, the Veteran submitted a VA Form 21-8940 which shows that he completed 4 years of high school and worked full-time as a truck driver until March 2009. The Veteran also indicated that his service-connected PTSD alone prevented him from maintaining a gainful occupation and caused him to leave his last job. VA Form 21-8940 Veteran Application for Increased Compensation Based on Unemployability (April 2017). The evidence of record does not demonstrate that the Veteran's service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. In fact, the record establishes that the Veteran stopped working as a truck driver in March 2009 due to his nonservice-connected disabilities as shown in records VA obtained from the Social Security Administration (SSA). The Veteran was awarded SSA benefits based on disabilities that began in March 2009. The SSA disability determination and transmittal sheet note a primary diagnosis of retinal detachments and defects with a secondary diagnosis of discogenic and degenerative back disorders. The medical portion of the disability determination reveals that while the Veteran had worked as a truck driver from April 1993 to March 2009, his ability to continue in that capacity was limited after his right retina had detached and he was unable to pass the qualifying eye test. The Veteran also had a cataract in his right eye greater than the left, and, best corrected vision was 20/200 in the right eye and 20/25 in the left eye. In addition, it was noted the Veteran underwent 3 laminectomies and was diagnosed with spondylosis L5-S1 disc space which prevented him from lifting anything over 20 pounds. The Veteran reported he had no other limitations that affected his ability to work other than his vision problems. The psychiatric assessment contained in the disability determination shows the Veteran reported that he had PTSD from being in the military and saw a doctor about a year ago but was not taking any medicine to treat it. He further stated that his PTSD was not affecting his ability to work although he experienced road rage while driving in the past. Lastly, the Veteran stated that he liked to keep to himself and could deal with a stressful situation like anyone else and was able to focus on a simple task and complete it. The evaluator noticed no mental problems during the interview and assessed the Veteran's psychiatric impairment as "not severe". The Veteran's SSA records do not contain any reference to occupational or functional impairment caused by his post-nasal septoplasty. In statements dated in June 2007 and October 2007, submitted by psychiatrist Dr. H. Ezell Branham Jr., the Veteran was noted to have worked in trucking situations where he could be alone, and which allowed him to work without interference from other people and authority figures. While Dr. Branham indicated the Veteran's PTSD symptoms impacted his job, he did not determine the Veteran's PTSD precluded him from maintaining his employment as a truck driver. A February 2008 VA PTSD examiner determined the Veteran was able to work full time but had some issues with interpersonal anxiety/road rage. However, he had lost no time from work due to PTSD symptoms in the past year. An August 2012 VA PTSD examination report shows the Veteran's PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was noted to have stopped working as a truck driver after 16 years due to problems with a detached retina. A June 2017 VA PTSD examination report shows the Veteran's PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner indicated the Veteran's ability to function in an occupational environment was variable and his functional limitations included difficulties interacting with coworkers and supervisors due to low frustration tolerance for conflict with associated irritability. The Veteran was noted to be able to function more effectively in a solitary job, including his 16 years as a long-haul trucker. The Veteran understood his PTSD-related irritability and impulse control problems to mean being "outspoken" which led to conflict, and difficulty managing interpersonal conflicts. The examiner concluded that overall, the Veteran was able to function reasonably well in work-like situations (i.e., volunteer work) since his retirement as a long-haul truck driver. A July 2020 VA PTSD examination report shows the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that the only reason he was removed from his job as a truck driver in 2009 was due to his eye issues after his retina detached. In addition, he denied having any problems with his mood or mental health issues at work that caused work deficits or that resulted in reprimands. Finally, an August 2020 VA individual unemployability statement, issued by a psychologist contracted by VA, determined that the Veteran had no job-related difficulties secondary to his service-connected mental health issues. A review of the Veteran's VA treatment records throughout the appeal period note symptoms of nightmares, hypervigilance, anger, irritability and difficulty concentrating. In October 2012, the Veteran reported that he retired in 2009 from truck driving and in November 2015, he indicated that he was active with VFW honor guard, volunteered with Mountain Valley Hospice and played golf. During his hearing, the Veteran testified that he was a truck driver for 16 years and that he stopped working in 2009. However, the Veteran omitted that a large retinal detachment in his right eye was the precipitating cause of his inability to continue his job a truck driver. He stated there were instances where he felt that his mental health would cost him his job and reported that his PTSD-related symptoms of sleep impairment, anger control issues, irritability, and difficulty concentrating diminished his occupational functioning. Furthermore, he testified that his nonservice-connected disabilities such as obstructive sleep apnea and physical disabilities which necessitated surgeries, had also affected his ability to work. See Hearing Transcript at 11, 15-16 (November 2019). The Veteran denied that his service-connected bilateral hearing loss affected his ability to retain gainful employment. The Board finds that the evidence does not show that the Veteran was precluded from performing the physical and/or mental acts required for gainful employment. During the pendency of the appeal, the Veteran underwent three VA PTSD examinations in which all the examiners indicated that while the Veteran had some difficulty in occupational situations due to his PTSD, there was no interference with focus, attention, or concentration so as to preclude his ability to perform the mental acts required for gainful employment. Furthermore, the record does not demonstrate that the Veteran's post-nasal septoplasty residuals prevented him from performing the mental and/or physical acts required for gainful employment. Indeed, the Veteran's contention that he suffered interrupted sleep from having to clean out his nose, resulting in fatigue and occupational impairment, is not supported by the record as there is no indication that the Veteran's nasal condition impaired his earning capacity as a truck driver. See e.g. VA examination (September 2012). Notably, the Veteran's service-connected disabilities did not interfere with functions of the upper or lower extremities. The Board acknowledges that the Veteran's PTSD was significant, and it is reasonable to assume that there were some jobs that he could not perform due to symptoms such as anger and irritability. However, neither the lay nor the medical evidence tends to support that his service-connected disabilities precluded his ability to perform the acts required for employment, but rather it was functional impairment caused by nonservice-connected disorders. Although the Veteran testified that he was unable to maintain his job as a truck driver primarily due to the impact of his PTSD symptoms on his mental functioning, the Board finds that statement lacks credibility in view of the other evidence of record. In that regard, SSA records show that the Veteran stopped working in March 2009 because of a large detached right retina and low back disabilities. Additionally, during the July 2020 VA PTSD examination, the Veteran stated that he stopped working in 2009 as a long-haul truck driver only because he was disqualified from passing an eye examination due to his detached retina. He also reported that prior to this event, he had no problems with his mood or mental health issues that affected his work in any way. See C&P Exam (July 2020). In conclusion, the evidence of record does not more nearly reflect that the Veteran's service-connected disabilities caused impairment in his physical and/or mental functions so as to preclude him from engaging in gainful employment. Here, the preponderance of the evidence shows that the Veteran stopped working in 2009 in his occupation as a long-haul truck driver due to nonservice-connected disabilities related to his eyes and low back. In arriving at this determination, the Board has considered the evidence throughout the appeal period holistically, to include the Veteran's service-connected disabilities, employment history, educational history, and all other relevant factors. Lastly, it is noted that difficulty with employment due to service-connected disability is contemplated by, and compensated under, the VA rating schedule, and is not equivalent to being unable to secure and maintain gainful employment. Essentially, the assigned ratings for the Veteran's PTSD throughout the appeal period already contemplate industrial impairment. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages represent the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations). During the appeal period prior to November 10, 2016, on balance, the weight of the evidence is against finding that there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Thus, referral to the VA Director of Compensation is not warranted. 38 C.F.R. § 4.16(b). See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Further, on balance, the weight of the evidence is against finding that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities alone from November 10, 2016. Accordingly, the claim for entitlement to TDIU is denied, to include referral for consideration of an extraschedular TDIU. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.