Citation Nr: 0001253 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-09 958A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased (compensable) rating for residuals of a nasal fracture. 2. Entitlement to an increased rating for a gynecological disability, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. L. Wright, Associate Counsel INTRODUCTION The veteran served on active duty from May 1991 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) from two rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 1996, the RO established service connection for gynecological problems and assigned a noncompensable evaluation. The veteran filed a Notice of Disagreement with that rating in February 1997 and the RO issued a Statement of the case later that month. The veteran then filed her substantive appeal in March 1997. In June 1998 the RO denied the veteran's claim for an increased (compensable) rating for residuals of a nasal fracture, status post septoplasty. She filed a Notice of Disagreement with that decision in July 1998. After the RO issued a Statement of the Case later that same month, the veteran perfected her claim by filing a substantive appeal in August 1998. FINDINGS OF FACT 1. It was factually ascertainable as of March 3, 1998, that veteran's service-connected residuals of a nasal fracture resulted in a 50 percent obstruction of the nasal passage on both sides. 2. The veteran underwent a septoplasty on March 11, 1998, and a temporary total rating for convalescence was assigned from March 11, 1998, to May 1, 1998. 3. The veteran has refused to report for VA examination to ascertain the current severity of her service-connected residuals of a nasal fracture, and there is no evidence subsequent to May 1, 1998, showing that this disability is still manifested by a 50 percent obstruction of the nasal passage on both sides. 4. The veteran's service-connected gynecological disability is manifested by heavy menstrual bleeding with dizziness and abdominal pain, but no lesions involving the bowel or bladder. CONCLUSIONS OF LAW 1. The schedular criteria for assignment of a 10 percent disability evaluation for residuals of a fracture of the nasal septum were met from March 3, 1998. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.400, 4.7, 4.96, 4.97 Diagnostic Code 6502 (1999). 2. The schedular criteria for assignment of a 10 percent disability evaluation after April 30, 1998, for residuals of a fracture of the nasal septum have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.400, 4.7, 4.96, 4.97 Diagnostic Code 6502 (1999). 3. The schedular criteria for assignment of a rating in excess of 30 percent for the veteran's gynecological disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.116, Diagnostic Code 7629 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The essence of the veteran's claim is that the ratings assigned for two service-connected disabilities do not adequately portray the severity of her symptomatology. Specifically, with regards to her residuals of a nasal fracture, she has reported problems with breathing through her nose, sinuses, and snoring. She also indicated that her nose had a very large hump and that she feels self-conscious about it. She argues that she is entitled to a higher evaluation for that disability. Further, she contends that her menstrual cycles are characterized by intense bloating and pain and that she experiences heavy bleeding and dizziness with her periods. Increased Rating for Residuals of a Nasal Fracture A veteran who submits a claim for benefits under laws administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a). A mere allegation that a service- connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffree v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased evaluation is well grounded. Once a veteran has presented a well-grounded claim, VA has a duty to assist him in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a). The record reveals that the RO has made efforts to develop the evidence. However, it appears that the veteran has failed to report for scheduled examinations. In this regard, the Board stresses to the veteran that VA's duty to assist her is not a one-way street. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). In view of the veteran's express statement that she will not report for a VA examination, the Board finds that further action is required to meet the duty to assist. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Historically, service connection for a deviated nasal septum was established by rating decision dated November 1996. A noncompensable evaluation was assigned. On March 11, 1998, the veteran underwent a septoplasty and a temporary 100 percent evaluation was assigned for convalescence from March 11, 1998, to May 1, 1998. Effective May 1, 1998, the noncompensable evaluation resumed. Evidence relating to the veteran's disability consists of private medical treatment records. The Board initially notes that a VA examination was ordered for the veteran in August 1998 to evaluate her disability. However, the veteran failed to report for this examination, scheduled for September 1998. The veteran was called regarding the missed appointment and a letter was sent to the veteran in October 1998 explaining the importance of the VA evaluation. The veteran replied in November 1998 indicating that she simply could not take any more time off of work to come in for an evaluation. The Board notes that a VA examination would be helpful in this matter but proceeds to adjudication, as the veteran is unable to undergo further VA examination. The private medical records consist of a March 3, 1998, "second surgical opinion" from Emmanuel D. Noche, M. D. and a March 1998 surgery report from Jack B. Booth, M. D. Dr. Noche examined the veteran's nose and examination showed that the nose had a straight dorsum but with a very prominent hump. There was a palpable bony ledge in the right side of the nasal bone pyramid externally. This was probably the site of a fracture three years prior. The septum was deviated to the left at the level of the middle turbinate. There was a prominent bony projection to the left inferior meatus. There was about an 80 percent obstruction of the left nostril and 50 percent in the right side. The examiner noted that the veteran had nasal obstruction due to the significant nasal septal deviation. He recommended that the veteran have a septoplasty performed. On March 11, 1998, the veteran did undergo a nasal septoplasty. The veteran's disability has been assigned a noncompensable evaluation pursuant to other criteria set out in 38 C.F.R. § 4.97, Diagnostic Code 6502. This code provides that traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. Symptomatology less than that warrants the noncompensable evaluation. The evidence here suggests that a 10 percent evaluation, the maximum allowed in this rating code, is warranted from March 3, 1998. In a letter of that date, Dr. Noche indicated that the veteran experienced 80 percent blockage to the left and 50 to the right. As the medical evidence shows she had a traumatic deviation of the nasal septum with at least 50 percent blockage on both sides, a 10 percent evaluation is warranted from March 3, 1998. There is no supporting medical evidence showing such a degree of obstruction prior to this date. Moreover, as there is no evidence that obstruction of the nasal passages to a degree so as to warrant a 10 percent rating after the surgical procedure, the Board must agree with the RO assignment of a noncompensable rating from May 1, 1998 (after expiration of the temporary total rating for convalescence after the surgery). Gynecological Disability This is an original claim placed in appellate status by a notice of disagreement (NOD) taking exception with the initial rating award dated November 1996. Accordingly, this claim must be deemed "well grounded" within the meaning of 38 U.S.C.A. § 5107(a), and VA has a duty to assist the veteran in the development of facts pertinent to the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). Under these circumstances, VA must attempt to obtain all such medical evidence as is necessary to evaluate the severity of the veteran's disabilities from the effective date of service connection through the present. This obligation was satisfied by the examinations and records described below, and the Board is satisfied that all relevant facts have been properly and sufficiently developed. As briefly indicated above, service connection for this disorder was established by rating decision dated November 1996. At that time, the RO assigned a noncompensable evaluation. This evaluation was increased to 10 percent by rating decision dated October 1997. The rating was then increased to 30 percent disabling in June 1998. These ratings were all effective July 31, 1996 and the 30 percent evaluation is still under appeal at this time. Service medical records show that the veteran experienced gynecological problems while in service. The veteran reported painful and irregular menses many times in service, including on her entrance examination. Specifically, she reported abdominal pain in October 1991 and was diagnosed with chronic abdominal pain in April 1992. In March 1992 she was diagnosed with chronic pelvic pain of unclear etiology. She had a normal gynecological examination in March 1992. As problems continued, she was diagnosed with "rule out PAD vs. endometriosis" in August 1992. In November 1992 the veteran underwent a laparoscopy for pelvalgia with negative findings. Her symptoms were treated with birth control pills and she had a satisfactory Pap smear in August 1993. However, in October 1993 a laparoscopy and colonoscopy showed endometrial cells and atypical glandular and squamous cells of uncertain significance. She was diagnosed with a probable ovarian cyst and ruptured ovarian cyst in November 1993. Since service, the veteran has sought VA outpatient treatment and undergone a VA examination for evaluation. Records from November 1996 to February 1998 describe the veteran's treatment and ongoing symptomatology. In November 1996, she reported irregular menstrual periods and lower abdominal discomfort. In January 1997 she again reported having periods with heavy clots and dizziness. A Pap smear showed degenerative structures suggestive of trichomonads and reactive cellular changes associated with inflammation. In June 1997, x-rays of the pelvis showed a prominent endometrial canal and the right ovary could not be visualized. Otherwise, the examination was unremarkable. In July 1997 a diagnosis of mild adenomyosis was provided and the doctor cited a negative laparoscopy in 1992, the veteran's recent pregnancy and a hematocrit of 41 as facts ruling out endometriosis. She still reported heavy period for seven days in September 1997. In March 1998 a surgical pathology report showed scant fragments of weakly proliferative endometrium and currettings. She had pelvic pain, refractory dysfunctional uretal bleeding. The veteran underwent VA examination in September 1996. The examiner noted that the veteran's had symptoms of irregular menses, menometrorrhagia, nausea, vomiting and abdominal pain with bloating and pelvic pain. The examiner noted the veteran was treated with birth control pills and Depo- Provera. Pelvic examination revealed normal external genitalia and a normal escutcheon. The introitus was normal. There was left adnexal tenderness. No cervical motion tenderness or evidence of infection was noted. She was diagnosed with chronic pelvic pain secondary to chronic endometriosis, there was no current evidence of pelvic inflammation. The was a history abnormal Papanicolaou smear. The examiner further noted no removal of any kind of the uterus and no displacements or adhesions. There was no removal or atrophy of the ovaries. The rectovaginal examination was normal with no malignant or tubercular processes. There was no voluntary sterilization. The veteran was ultimately diagnosed with endometriosis, quiescent and history of abnormal Pap smear, currently resolved. The veteran's symptomatology has been rated as 30 percent disabling under criteria laid out in 38 C.F.R. § 4.116, Diagnostic Code 7699-7629. That code provides that a 30 percent evaluation is warranted where there is Endometriosis with pelvic pain or heavy or irregular bleeding not controlled by treatment. A 50 percent evaluation is warranted where there are lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. After carefully reviewing the evidence, it is the decision of the Board that the veteran's symptomatology does not warrant an increase to 50 percent disabling in this matter. The Board notes that the veteran experiences frequent, heavy bleeding during her periods and that she has reported experiencing pelvic pain. The Board also notes that the veteran's use of medication has at times provided relief, but as she continues to report pain and heavy bleeding, this treatment has not successfully controlled her symptoms. However, the evidence is not sufficient to establish that the veteran has ever had lesions involving the bladder or bowels shown by laparoscopy. The veteran has reported abdominal pain, but there is no evidence of bladder or bowel symptomatology. In light of the foregoing, a 50 percent evaluation is not established in this matter. Similarly, the evidence does not establish that the veteran is entitled to a higher evaluation pursuant to any other diagnostic code relating to gynecological disorders as her uterus and ovaries are intact and there is no evidence of rectovaginal fistula or malignant neoplasms. Conclusion With regard to both issues, there is no evidence that an extraschedular evaluation is warranted. The potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that either service connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission of either issue for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) as to both issues. However, there is not a state of equipoise of the positive evidence with the negative evidence with regard to either issue so as to otherwise permit a favorable determination. ORDER Entitlement to a 10 percent evaluation from March 3, 1998, to March 11, 1998, for residuals of a nasal fracture is warranted. To this extent, the appeal is granted. Entitlement to a compensable evaluation for residuals of a nasal fracture prior to March 3, 1998, and after April 30, 1998, is not warranted. Entitlement to an evaluation in excess of 30 percent for the veteran's gynecological disability is not warranted. To this extent, the appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals