Citation Nr: 0004321 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 95-12 188 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an increased (compensable) rating for a deviated nasal septum and postoperative residuals of a submucous resection. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran served on active duty from January 1944 to June 1946 and from January 1951 to September 1953. This case comes to the Board of Veterans' Appeals (Board) from an October 1993 RO decision which denied an increased (compensable) rating for a deviated nasal septum and postoperative residuals of a submucous resection, and denied service connection for sinusitis both on a direct and secondary basis. In April 1997, the Board remanded the case to the RO for further evidentiary development. In an April 1999 decision, the RO granted service connection for sinusitis and assigned a noncompensable rating. Therefore, the sole issue to be addressed by the Board in the present decision is the veteran's appeal for a compensable rating for a deviated nasal septum and postoperative residuals of a submucous resection. It is noted that, in an undated statement submitted subsequent to the RO's April 1999 decision, the veteran's representative appears to have submitted a notice of disagreement with the noncompensable rating assigned to the veteran's service-connected sinusitis. As this issue is not presently on appeal, the Board refers it to the RO for appropriate action. FINDING OF FACT The veteran's service-connected deviated nasal septum and postoperative residuals of a submucous resection are currently manifested by a deformed nose, a 30 percent obstruction of the left nares, and no more than slight symptoms. CONCLUSION OF LAW The criteria for a compensable rating for a deviated nasal septum and postoperative residuals of a submucous resection have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.97, Code 6502 (1996 and 1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from January 1944 to June 1946 and from January 1951 to September 1953. A review of his service medical records shows that in May 1952 the veteran was struck across the bridge of the nose by a flying baseball bat while watching a ball game, causing a laceration (he is service-connected for a scar on the bridge of the nose). Later that month, he was seen with a complaint of pain around the nose and eyes and difficulty breathing. On a March 1973 VA examination of the nose, there was a septal deviation to the left with some obstruction. A May 1974 VA hospital summary shows a complaint of intermittent pain in the nose with persistent partial nasal obstruction on the left. An examination revealed left partial nasal obstruction with septal deviation of the left. The veteran underwent a submucous resection. The discharge diagnoses included nasal septal deviation, traumatic. In an October 1978 Board decision, service connection for deviated nasal septum with submucous resection, as the result of trauma, was established. On a December 1978 VA examination of the nose, the nasal septum was straight but the left inferior turbinate was hypertrophic, causing some degree of obstruction. In a January 1979 decision, the RO implemented the Board's October 1978 decision and assigned a noncompensable evaluation to the service-connected deviated nasal septum with submucous resection. On a December 1987 VA physical examination for purposes of domiciliary admission, the external nose, mucosa, septum, and turbinates were found to be within normal limits. A February 1991 VA hospital summary indicates that the veteran was hospitalized in January 1991. He was continued on Benadryl during the course of his stay. There was no reference to treatment of his nose during the hospitalization. A September 1991 VA hospital summary indicates that the veteran was hospitalized in August 1991 for a variety of complaints which did not pertain to his nose. On admission, the veteran reported that he required Benadryl and another medication to sleep. There was no reference to treatment of his nose during the hospitalization. A June 1992 VA outpatient record indicates that the veteran reported he was doing fine and that he slept well with his medications, which included Benadryl. At a November 1992 RO hearing before a hearing officer, the veteran raised the issue of an increased rating for his service-connected deviated nasal septum with submucous resection. He testified that he has had trouble breathing through his nose since the 1970s; that he had to sleep propped up because the drainage and mucous bothered him; that he experienced headaches and frequent drainage; that he had crusting in his nose once in a while; that he took Benadryl to help him rest; and that his symptoms have worsened over the years since his injury in service. On a November 1992 VA examination, the veteran complained of occasional periods of pain in the nose and irritating mucous drainage after sneezing. On examination, the external nose and nasal vestibule were of normal appearance. The right and left nasal cavities appeared normal. The septum was on midline, and there was a small opening between the nasal cavities, just anterior to the septum. The floor of the nose, the meatus, and turbinates were normal. There was no discharge, and the turbinates were pink and without inflammation. The sphenoethmoid recesses were normal to palpation. There was no irritation, inflammation, or abnormalities with respect to the olfactory area, but the veteran denied an ability to smell. X-rays of the nasal bones revealed a bony structure of the ethmoids that appeared to be rather thickened. The diagnoses were thickening of the ethmoids, membrane thickening of the maxillary antra, and status post nasal septal surgery (resolved). A January 1993 VA outpatient record indicates that the veteran slept well and was on medication including Benadryl every night. An August 1993 VA outpatient record indicates that the veteran slept fairly well and was on Benadryl every night. In an October 1993 decision, the RO denied an increased (compensable) rating for the veteran's service-connected deviated nasal septum, status post submucous resection. In his August 1994 notice of disagreement, the veteran stated that his headaches were worsening and the mucous from his nose drained into his lungs mostly at night. He asserted that none of his symptoms were well-controlled with his daily medication. A December 1994 VA discharge summary indicates that the veteran was in domiciliary care from November 1993 to December 1994. He was diagnosed with several ailments, none of which pertained to his nose. There was no reference to any treatment for his nose during the course of his stay. An April 1995 VA discharge summary indicates that the veteran was hospitalized for psychiatric treatment from December 1994 to March 1995. His medications on admission included Benadryl every night, and his discharge medications included diphenhydramine every night. There was no reference to any treatment for his nose during the course of his stay. A November 1995 VA psychiatric discharge summary indicates that the veteran reported, on a review of systems, that he had clear nose drainage which he associated with his sinuses. An examination revealed a notch in the right nostril from surgical removal of a skin lesion. A May 1996 VA discharge summary indicates that the veteran was in domiciliary care from April to May 1996. He was diagnosed with several ailments, to include chronic sinusitis. He was on Benadryl every night during his stay. There was no reference to any treatment for his nose during the course of his stay. An October 1996 VA discharge summary indicates that the veteran was in domiciliary care from July to October 1996. He was diagnosed with several ailments, none of which pertained to his nose. There was no reference to any treatment for his nose during the course of his stay. In April 1997, the Board remanded the case to the RO for further development, to include obtaining treatment records and a current VA examination. A May 1997 VA discharge summary indicates that the veteran was in domiciliary care from February to May 1997. His medications at discharge included Benadryl every night. There is no reference to any treatment for his nose during his stay. On a January 1999 VA examination, the veteran had no complaints about his nose other than chronic sinusitis. He reported the last time he required antibiotics for his sinuses or nose was in 1980. He stated that he had no problems with interference with breathing through his nose. He reported that he had no dyspnea at rest or on exertion but that he occasionally became congested. As for treatment, he reported that at bedtime he took Benadryl, which he bought himself. His other reported symptoms were frontal headaches. On examination, there was a deformed nose with a "Y-shaped" unsightly, nontender scar at the base of the nose. The veteran had a 30 percent obstruction of the left nares, and the right nares was completely open. There was no drainage, and the mucosal was normal inside the nose. There was no purulent drainage, no tenderness, and no crusting. X-rays of the nasal bones revealed no bony abnormalities. The diagnoses were status post fractured nose with chronic maxillary sinusitis demonstrated on X-rays and chronic ethmoid sinusitis; a deformed nose with unsightly scars; and a 30 percent obstruction of the left nares. The examiner remarked that the veteran had a deviated nasal septum in the posterior aspect of the nose which caused a 30 percent obstruction of the left nares, although X-rays did not demonstrate the deviated nasal septum. The examiner stated that the postoperative residuals of the submucous resection included the chronic sinusitis. Later VA medical records from 1999 show the veteran resided in the domiciliary for an extended period, and he received intermittent hospital treatment for a psychiatric condition and for physical conditions including chronic obstructive pulmonary disease. These records do not describe impairment or treatment from a deviated nasal septum. II. Analysis Initially, it is noted that the veteran's claim for a compensable rating for his deviated nasal septum and postoperative residuals of a submucous resection is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is satisfied that all relevant evidence has been properly developed and that no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. During the course of the veteran's appeal, the regulations pertaining to rating diseases of the nose and throat were revised. See 61 Fed.Reg. 46720 (September 5, 1996). The veteran's service-connected deviated nasal septum was initially evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6502 (effective prior to October 7, 1996). Under this code, a 0 percent rating is warranted for traumatic deflection of the nasal septum with only slight symptoms. A 10 percent rating is warranted for deflection of the nasal septum with marked interference with breathing space. On October 7, 1996, the rating criteria for the veteran's service-connected disability were revised and are still found in 38 C.F.R. § 4.97, Diagnostic Code 6502. Under the revised code, a 10 percent rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. When the requirements for a compensable rating under this code are not shown, a 0 percent rating is assigned. 38 C.F.R. § 4.31. As the veteran's claim for an increased rating for a deviated nasal septum and postoperative residuals of a submucous resection was pending when the regulations pertaining to diseases of the nose and throat were revised, he is entitled to the version of the law most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the prior or current rating criteria may apply, whichever are most favorable to the veteran. In this case, the VA outpatient, hospital, and domiciliary care records show that the veteran has not received treatment specifically for his service-connected deviated nasal septum in a very long period of time. The records do show that he has continually taken Benadryl at night, which the veteran indicated at the 1992 hearing helped him to rest. The November 1992 VA examination revealed essentially normal findings with regard to his service-connected deviated nasal septum. In January 1999, the veteran underwent another VA examination wherein he was found to have a deformed nose with a 30 percent obstruction of the left nares. The veteran's right nares was not found to have any obstruction. Moreover, the veteran reported on the examination that he did not have any problems pertaining to interference with breathing through his nose and that he did not have dyspnea at rest or on exertion. Although X-rays of the nasal bones showed no bony abnormalities on examination, the examiner remarked that the veteran had a deviated nasal septum in the posterior aspect of his nose. The examiner also commented that chronic sinusitis should be included as a residual of the submucous resection; however, as noted in the introduction, sinusitis is a separately rated service-connected disability and the evaluation for sinusitis is not the subject of the instant appeal. Considering all the evidence and the old and new rating criteria of Code 6502, the Board finds that a compensable rating is not warranted. The medical evidence does not reflect that the veteran's deviated nasal septum has caused marked interference with breathing space or that there is a 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. There are only slight symptoms, which warrant a 0 percent rating under the old rating code; and since the requirements for a compensable rating under the new rating code are not shown, a 0 percent rating is warranted pursuant to 38 C.F.R. § 4.31 Under either the old or new rating criteria, the disability picture more nearly approximates the criteria for a noncompensable rating rather than a 10 percent rating, and the assignment of the lower rating of 0 percent is proper. 38 C.F.R. § 4.7. For the above-stated reasons, the preponderance of the evidence is against the claim for an increase in the noncompensable rating for a deviated nasal septum and postoperative residuals of a submucous resection. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable rating for a deviated nasal septum and postoperative residuals of a submucous resection is denied. L. W. TOBIN Member, Board of Veterans' Appeals