Citation Nr: A21014283 Decision Date: 08/26/21 Archive Date: 08/26/21 DOCKET NO. 200428-81447 DATE: August 26, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent for service-connected deviated nasal septum with internal nasal valve malfunction is denied. REMANDED Entitlement to a disability evaluation in excess of 10 percent for service-connected degenerative arthritis of the spine is remanded. FINDING OF FACT The Veteran's service-connected nasal disability is assigned a 10 percent disability rating, as it is shown to cause a complete obstruction on the left side. The Veteran is not shown to have polyps, rhinoscleroma, or granulomatous conditions throughout the appeal period. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected deviated nasal septum with internal nasal valve malfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.97, Diagnostic Codes 6502, 6522-6524. REASONS AND BASES FOR FINDING AND CONCLUSIOS The Veteran served on active duty in the United States Air Force from November 2011 to November 2018. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision. In April 2020, VA received the Veteran's 10182 Notice of Disagreement (NOD). The Veteran selected the Direct Review docket. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2019). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran's nasal disability is evaluated as deviation of the nasal septum with internal nasal valve malfunction under Diagnostic Code 6502. A maximum 10 percent evaluation is warranted for traumatic deviation with 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. A 10 percent evaluation is the only disability rating available under this diagnostic code. See 38 C.F.R. § 4.97, Diagnostic Code 6502. As the highest possible evaluation under the Diagnostic Code assigned has been awarded, the Board will assess this claim under other potentially applicable diagnostic codes. Under Diagnostic Code 6522, a 10 percent rating is provided for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage of both sides or complete obstruction on one side; and a 30 percent rating is provided for allergic or vasomotor rhinitis with polyps. See 38 C.F.R. § 4.97, Diagnostic Code 6522. Under Diagnostic Code 6523, a 10 percent evaluation is warranted for bacterial rhinitis with permanent hypertrophy of turbinates and with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 50 percent evaluation is warranted for rhinoscleroma. See 38 C.F.R. § 4.97, Diagnostic Code 6523. Under Diagnostic Code 6524, for granulomatous rhinitis, a 100 percent is warranted for Wegener's granulomatosis, lethal midline granuloma; and, a 20 percent is warranted for other types of granulomatous infection. See 38 C.F.R. § 4.97, Diagnostic Code 6524. In the December 2018 VA examination, the Veteran was diagnosed with a deviated nasal septum and turbinate hypertrophy. The Board reflects that the Veteran was noted to have a diagnosis of chronic sinusitis in September 2014 during the examination, although the examiner noted that the Veteran did not have any symptoms of sinusitis on examination at that time. The examiner noted that there was continued left nostril obstructed breathing, although none of the criteria under Diagnostic Codes 6502 or 6522 through 6524 were addressed by this examiner. A July 2019 VA otolaryngology consult note shows the Veteran was seen for symptoms of severe nasal obstruction. He reported significant nasal obstruction for about three or four years that included multiple trials of Flonase. The treatment provider noted the Veteran had a septoplasty performed due to severe leftward deflection of septal deviation. The Veteran reported initial improvements with his symptoms after the septoplasty, but he continued to have significant obstruction. He stated during the recovery period he was hit in the nose while playing football and during a follow up ENT visit it was confirmed that his nose was in adequate state of healing and it had not been further deviated. He reported no complaints of sinus disease, denied any facial pain or pressure, and no purulent drainage. He reported he did not require antibiotics for any acute sinus infections over the last five years. He denied any recent fevers, chills, chest pain or shortness of breath. He also denied any new breathing concerns, dysphagia, or voicing problems. He did acknowledge some seasonal allergies due to environmental allergens resulting in sneezing and dry eyes, however, he stated he does not have these symptoms during his daily life. The treatment provider found that his nasal obstructive symptoms are independent of his allergic symptoms when he is exposed to seasonal allergies. The Veteran underwent another VA examination in August 2019. The examiner noted a diagnosis of a deviated nasal septum, allergic rhinitis with turbinate hypertrophy, and internal nasal valve malfunction. With regards to the Veteran's rhinitis, it was noted that the Veteran had permanent hypertrophy of the nasal turbinates. There was no evidence of polyps, granulomatous rhinitis, rhinoscleroma, Wegener's granulomatosis, lethal midline granuloma, or any other granulomatous infection. The examiner did not answer whether there was complete obstruction on either side as a result of rhinitis. Examination of his deviated nasal septum demonstrated that it was non-traumatic in nature with complete obstruction on the left side but not complete obstruction on the right side; there was not at least 50 percent obstruction on both sides during the examination. The examiner noted that the Veteran's nasal disability did not impact his ability to work. In a September 2019 addendum, the August 2019 examiner clarified that the Veteran's nasal value dysfunction was a progression of his deviated nasal septum disability, and as noted in her August 2019 examination report, resulted in complete left-sided nasal obstruction. The August 2019 examiner additionally appears to have indicated that the Veteran's allergic rhinitis and turbinate hypertrophy were related to service. A December 2019 VA otolaryngology consult note shows the Veteran was seen for a postoperative follow-up for his nasal valve repair. The Veteran reported he was doing well since his surgery. He also reported tremendous improvement with his breathing and feels no restriction of breathing at most times. He denied any new drainage or swelling from the nose. The Veteran reported his hyposmia was quite evident prior to surgery but has improved and he is now smelling additional scents. The treatment provider noted there has been no change in his ear, no areas of erythema or swelling. Upon external examination the treatment provider found there were no areas of swelling or fluctuance, and the incision was intact without any erythema or drainage. On anterior rhinoscopy bilaterally the treatment provider found, there was mild crusting of the area of the incision that was easily removed without any significant pain. The treatment provider noted upon removal of the bolster there was good approximation of the conchal and posterior skin without any signs of deformity and his ears looked equal on anterior view. The treatment provider observed on tidal breathing and deep breathing, there was no apparent nasal valve collapse, which was present prior to surgery. In a January 2020 addendum, it was noted that the August 2019 VA examiner was no longer available, but that she should have completed the rhinitis portion of the examination. That examiner clarified in that report that the rhinitis section in the August 2019 examination section should have been completed to indicate that the Veteran had rhinitis. The examiner noted that the Veteran did not have complete obstruction on either side due to rhinitis, although there was permanent hypertrophy of his turbinates. There was no evidence of polyps, granulomatous rhinitis, rhinoscleroma, Wegener's granulomatosis, lethal midline granuloma, or any other granulomatous infection. Based on the foregoing, the Board finds that the evidence demonstrates the Veteran's rhinitis was manifested by complete obstruction on the left side. See 38 C.F.R. § 4.97, Diagnostic Code 6502. While he has both deviated septum and allergic rhinitis with permanent hypertrophy of his turbinates, it would be pyramiding to assign a separate 10 percent rating under either Diagnostic Codes 6522 or 6523 in this case, as those codes contemplate the same symptomatology as Diagnostic Code 6502, i.e., nasal obstruction. The same symptomatology cannot form the basis for assigning separate ratings. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Accordingly, the Board cannot assign a separate compensable evaluation beyond what has already been awarded in this case under Diagnostic Code 6502. Higher evaluations beyond 10 percent are available with evidence of polyps, rhinoscleroma or granulomatous conditions under Diagnostic Codes 6522-6524. However, throughout the appeal period, there is no evidence of polyps, rhinoscleroma, or granulomatous conditions. Consequently, higher and/or separate compensable evaluations under Diagnostic Codes 6522-6524 are not warranted in this case based on the evidence of record. The Board acknowledges the Veteran's assertions that his nasal disability is more severe than evaluated and that he manifests constant sinus pain and discharge. See July 2019 statement. The Veteran is competent to report his symptoms and his statements are credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to determine the severity of his nasal condition, as it is outside the scope of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the most probative evidence, VA examination reports and VA treatment records, demonstrate that the currently assigned rating is appropriate. Accordingly, an evaluation in excess of the currently-assigned 10 percent evaluation is not warranted for the Veteran's nasal disability, and that claim must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 4.7, 4.97, Diagnostic Codes 6502, 6522-6524. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran asserts that he is entitled to a higher rating for his service-connected degenerative arthritis of the spine because he believes the rating does not represent the severity of his back condition. See July 2019 statement. The Veteran was afforded a VA examination in September 2019. After review of this examination report, the Board finds this examination is inadequate. The examination report indicated that the Veteran reported no flare-ups. However, this contradicts the evidence of the record. First, within the examination report the Veteran reported he has a baseline 3/10 pain in left low/mid back which increases to 7/10 at times. He also reported that his back is worse with bending and lifting. Second, in his July 2019 statement he reported that does experience flare-ups. Lastly, VA treatment records document a physical therapy visit in July 2019 indicating flexion loss of 75 percent due to increased pain and 25 percent loss of left/right rotation due to increase pain. VA obtained a February 2020 VA addendum opinion regarding clarification for functional loss during flare-ups. The examiner noted the Veteran reported increased pain which is specifically provoked by activity. The examiner determined the Veteran does have flare-ups. However, in regard to additional loss of function during flare-ups the examiner stated it is "unlikely." In support of this conclusion the examiner explained that during the July 2019 physical therapy visit the Veteran specifically asked for ROM testing because of his claim, thus "suggesting the possible introduction of bias." The examiner also cited to the August 2019 examination report, explaining that during the examination the Veteran pushed through the pain and had almost normal range of motion with no functional loss noted. Based on the foregoing, the Board finds that the evidence of record is inadequate as such evidence does not adequate address the Veteran's functional impairment during flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, a predecisional duty to assist error exists in this case and a remand is necessary in order to obtain another examination that remedies this deficiency. The matters are REMANDED for the following action: Ensure that the Veteran is scheduled for a VA examination to determine the current severity of his degenerative arthritis of the spine disability with an examiner who has not previously participated in this case. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. (a) Elicit testimony from the Veteran regarding the additional symptoms and functional impairment he experiences during flares of symptoms or with repeated use over time. Document the Veteran's lay testimony in the examination report. (b) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups, and following repetitive use or repeated use over time, due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain or increased functional impairment as a result of flare-ups, repetitive use or repeated use over time, the examiner must offer an opinion as to whether there would be additional limits on functional ability, to include estimation of the additional loss of range of motion. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. Full range of motion testing must be performed where possible. The thoracolumbar spine should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, Associate 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.