BVA9503233 DOCKET NO. 92-00 739 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for postoperative residuals of a nasal fracture. 2. Entitlement to a compensable disability rating for residuals of a fracture of the fifth metacarpal of the right hand. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Margaret L. Peak, Associate Counsel INTRODUCTION The veteran had active service from August 1986 to August 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California. The claim was remanded by the Board in October 1992, was returned in January 1995, and is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran disagrees with the decisions of the RO declining to increase the disability ratings of his service connected disorders. He contends that his left nostril is completely plugged, and that he is unable to breathe out of it. He contends also that the cosmetic appearance of his nose is undesirable and unattractive, and that he has a constant nasal discharge from the nostril that remains open. He also maintains that the residuals of the fracture of the fifth metacarpal of the right hand have worsened such that his hand becomes tired and painful after five minutes of physical activity. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a 20 percent disability rating for postoperative residuals of a nasal fracture and that the preponderance of the evidence is against a compensable disability rating for residuals of a fracture of the right fifth metacarpal. FINDINGS OF FACT 1. Postoperative residuals of a nasal fracture include marked interference with breathing space, and obvious disfigurement without exposure of both nares. 2. Residuals of a fifth metacarpal fracture of the right hand produce residual discomfort with writing and extended use of hand tools. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for postoperative residuals of a nasal fracture, including obstructed breathing and cosmetic disfigurement have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.24, Part 4, Codes 6501-6504 (1993). 2. The criteria for a compensable disability rating for residuals of a fracture of the fifth metacarpal of the right hand have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b), 4.3, 4.7, 4.40, Part 4, Code 5299-5227 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking increased disability ratings for postoperative residuals of a nasal fracture, and for residuals of a fracture of the fifth metacarpal of the right hand. As an initial matter, the Board finds his claims to be "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say, he has presented claims that are not implausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the VA's duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). The evidence does warrant the assignment of a 20 percent rating for postoperative residuals of a nasal fracture, but not a compensable rating for residuals of a fracture of the hand. Service medical records show that in 1987, the veteran suffered a nasal injury that aggravated a pre-existing injury, and also fractured the fifth metacarpal of his right hand. He was granted service connection for residuals of both nose and hand fractures from the date of his separation from service in 1989. In the original rating decision, from June 1990, the RO noted that the current VA ear, nose and throat (ENT) examination showed narrowing of the nasal passage with obvious nasal deformity consisting of a left lateral displacement and almost complete obstruction of the right nasal canal. The disorder was rated at 10 percent. The VA examination of the veteran's right hand showed an old fracture of the fifth metacarpal and proximal phalanx. It was noted that there was loss of knuckle prominence over the right fifth metacarpophalangeal joint with flexion of the fifth finger, however he was noted to have retained full manual dexterity and made a complete functional recovery. A noncompensable disability rating was assigned for residuals of the hand fracture. It is the veteran's present contention that both disorders have worsened since then. He maintains that his left nasal passage is completely blocked, that he has a constant, clear nasal discharge from the nose, and that as a result of his disorder, the appearance of his nose is undesirable and unattractive. The veteran is right handed, and he asserts that he suffers pain in his right hand after five minutes when using it for writing or other purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). The Board attempts to determine the extent to which the veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 410 (1993). Where an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Here, the RO initially rated the veteran's nasal disability for traumatic deflection of the nasal septum, under Diagnostic Code (DC) 6502 of the Rating Schedule. The veteran's hand disability was rated as analogous to that for ankylosis of a finger other than the thumb, index, or middle finger, under DC 5227. When the claim first came before the Board, it was remanded for further development. The Board directed that the veteran be given VA examinations by appropriate specialists for the purpose of determining the current nature and severity of his service connected disorders. The RO was directed to reevaluate the veteran's disorders in light of the reports of those examinations, and also to consider the veteran's nasal disorder under DC 6504, for scarring or loss of part of the nose. The veteran underwent VA ENT and orthopedic examinations in January 1993. Reports of X-rays of his nose and right hand are available, as is the report of the orthopedic examination. The report of the VA ENT examination was apparently lost, and a second nose and sinus examination took place in August 1994. The RO reconsidered the veteran's claims based on the reports of those examinations. The noncompensable disability rating for his hand injury was continued, and the Board agrees with that evaluation. Pursuant to the remand directions, the RO considered the veteran's nasal injury under DC 6504. Under that code, a 10 percent disability was found for obvious deformity of the nose; however, the veteran's combined rating was retained at 10 percent. The decision contains no reference to the previously awarded 10 percent disability rating under DC 6502. The Board disagrees with the trading off of one residual disability for another. Functional disability, described as interference with the breathing space; and cosmetic disability from obvious deformity are separate residuals of the same injury. These must be rated separately and the ratings combined under combined ratings table found at 38 C.F.R. § 4.25. I. Residuals of postoperative nasal fracture. The most recent X-rays of the veteran's nose were taken in January 1993, and were interpreted as showing slight deformity of the nasal bone, likely secondary to a prior fracture, with no evidence of acute fracture. The most recent VA examination of the veteran's nose took place in August 1994, at which time his subjective complaints were of left nasal obstruction, clear rhinorrhea, and dissatisfaction with the cosmetic appearance of his nose. On examination, there was a bulge in the junctional region of the lower lateral and upper lateral cartilage. The nasal vestibule was stenotic, greater on the left than on the right. The nasal cavities were narrow, and the left would collapse on inspiration. The mucosa was within normal limits. The septum was straight and without perforations. The inferior turbinates were enlarged on the left, and the middle meati showed no purulent discharge. The olfactory area could not be fully evaluated, and there was no clinical evidence of current sinusitis. The floor of the nose, the inferior meatus, the middle turbinate, the spheno-ethmoidal recess and the superior turbinates were all normal. The diagnoses were; external and internal deformity; nasal obstruction secondary to that deformity; and rhinitis. Under DC 6502, traumatic nasal deflection of the septum, with only sight symptoms, is non compensably disabling. With marked interference with breathing space, the rating is 10 percent. As noted earlier, where an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Therefore, despite the finding on examination that the septum was straight and without perforations, a 10 percent disability rating remains appropriate, as the breathing space on the left shows marked interference on inspiration. Where there is scarring of, or loss of part of the nose, a 10 percent disability rating may be assigned for loss of part of one ala, or other obvious disfigurement. Where the scarring or loss exposes both nares, the rating is 30 percent. 38 C.F.R. Part 4, Code 6504. The veteran has complained of his dissatisfaction with the appearance of his nose, however, no photograph or clear description of the deformity is of record. The original rating decision granting service connection contained the statement that there was obvious nasal deformity consisting of a left lateral displacement and almost complete obstruction of the right nasal canal. In the record, the only specific reference to the appearance of the veteran's nose is the VA examiner's observation, in August 1994, of a bulge in the junctional region of the lower lateral and upper lateral cartilages. This may well constitute an obvious disfigurement, which entitles the veteran to a 10 percent rating, however there is no evidence to warrant the assignment of the next higher 30 percent rating. Where there is chronic atrophic rhinitis, disability may be assessed under DC 6501, which provides disability ratings of 10 percent, 30 percent, and 50 percent. Though the veteran has complained of chronic rhinitis, his mucosa was found to be within normal limits, and there is no medical evidence that the rhinitis is atrophic. Therefore a rating under this code would be inappropriate. The evaluation of the same disability under various diagnoses is termed pyramiding, and is to be avoided. 38 C.F.R. § 4.14. Here, however, the residuals of the veteran's service connected nose fracture include both functional and cosmetic elements. Where, as here, the disabilities are distinct, the veteran is entitled to combine the ratings for different disabilities pursuant to 38 C.F.R. § 4.25. See, Estaban v. Brown, 6 Vet.App. 259 (1994). II. Residuals of right fifth metacarpal fracture. The veteran's right hand disability is rated under DC 5227, as analogous to ankylosis of a finger other than the thumb, index or middle finger. This code provides that ankylosis of other than those three fingers, regardless of whether it is the major or the minor extremity, is noncompensably disabling. The veteran's hand was most recently examined in January 1993. X-rays showed deformity of the fifth metacarpal head, consistent with prior boxer's type fracture. There was no acute fracture, and no evidence of soft tissue swelling or degenerative change at that time. His subjective complaints were pain in the right ring and little fingers dorsally with writing and when using hand tools for more than five minutes. On physical examination, some irregularity was palpable in the fifth metacarpal. When examined for functional defects, the veteran's fingers flexed symmetrically to the mid-palmar crease. He had active flexion, extension and abduction. Sensation was grossly intact to the ring and little fingers. Capillary refill was excellent to the ring and little fingers. He was able to make a full fist. He extended the fingers fully when all together, but had extensor lag when extending only the little finger. Proximal interphalangeal joints had full extension and flexion in those two fingers, as in the other hand. No intrinsic contracture was noted. The diagnosis was status post probable fracture of the right fifth, and possibly the fourth metacarpal, with extensor lag of the little finger if extended actively by itself, with residual discomfort with writing and extended use of hand tools. The Rating Schedule includes ratings for amputations and ankylosis of individual fingers, and for functional impairment of joints. The veteran's complaints do not correspond to any of these rating codes. The report of the examination does not reveal functional disability in the right hand, except that the veteran complains of pain. Where determining functional disability, there is a duty to include an evaluation of the veteran's pain. 38 C.F.R. § 4.40. This regulation instructs that weakness must be considered "as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled." The regulation adds that claims of dysfunction due to pain must be supported by adequate pathology and visible behavior of the claimant, and that little used parts of the musculoskeletal system "may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like." Using those criteria, a review of the examination reports of the veteran's hand does not show evidence of disuse. They show no measurable functional impairment in the use of the hand. Without questioning the sincerity of the veteran's complaint of pain in his hand, the Board must note that review of the applicable diagnostic codes seems to indicate a clear intent on the part of the Rating Schedule to consider minimal dysfunction in the fourth and fifth fingers to be a noncompensable disability. According to the Rating Schedule, ankylosis in fingers other than the thumb, index and middle fingers is noncompensable, regardless of the dominance of the hand involved. Without more, the Board cannot award a compensable evaluation for residual discomfort in those same fingers. There is no indication in the record that the current schedular evaluation for either of the veteran's disabilities is inadequate to evaluate the impairment of his earning capacity due to the disability at issue. Neither does either disability present such an exceptional or unusual disability picture as to render impractical the application of the regular schedule of standards. Therefore, the provisions of 38 C.F.R. § 3.321, relating to extraschedular evaluations, are not applicable here. The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991), and finds no section that provides a basis upon which to assign a higher disability evaluation. ORDER A disability rating of 20 percent for postoperative residuals of a nasal fracture is granted subject to regulations governing monetary awards. A compensable disability rating for residuals of a fracture of the fifth metacarpal of the right hand is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.