Citation Nr: 0007906 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-17 699A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased (compensable) original disability evaluation for a deviated nasal septum. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served in the National Guard. He had a period of active duty for training which extended from June to October 1972. This case comes before the Board of Veterans' Appeals (Board) by means of a June 1998 rating decision rendered by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein the RO assigned a noncompensable disability rating for a deviated nasal septum. The veteran appeals the assignment of this disability evaluation. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran deviated nasal septum is currently manifested by a 5 percent obstruction of the left nostril. 3. The evidence does not show marked interference with breathing space, a 50 percent obstruction of the nasal passage on either sides, or complete obstruction of the nasal passage on one side. CONCLUSION OF LAW The criteria for a compensable evaluation for a deviated nasal septum are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.31, 4.96, Diagnostic Code 6502 (1996), (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's increased rating claim is well grounded based on his complaints and medical records on file. 38 U.S.C.A. § 5107(a) (West 1991). Where, as in this case, the claimant is awarded service connection for the disability and subsequently appeals the RO's initial level of disability awarded, the claim continues to be well grounded as long as the rating schedule provides for a higher rating. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The veteran has not been prejudiced by the RO's or the Board's description of this claim as an "increased rating" even though this is an appeal of the original rating assigned by the May 1998 rating decision. The zero percent rating awarded for this disability was made effective from the date of claim, April 30, 1990, and hence, there is no need to address the question of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for a deviated nasal septum was granted by the Board in a February 1998 decision following the veteran's appeal of a March 1992 rating decision of the RO that denied service connection for residuals of injuries of the head, face, and nose. While the service medical records did not reveal any injury to the veteran's head, face, or nose, Board granted service connection for a deviated septum as the evidence showed that the veteran was diagnosed with this disability approximately two weeks after separating from active duty. Thereafter, the RO issued a rating action in June 1998 implementing the Board's February 1998 decision. A noncompensable rating was assigned with an effective date of April 30, 1990, the date of receipt of the veteran's original claim for service connection. The veteran perfected a timely appeal of the assignment of this noncompensable evaluation. The veteran contends that his deviated nasal septum is of such severity as to warrant a compensable rating. The Board finds that his contentions are not supported by the evidence. 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. The percentage ratings in the Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1999). The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (1999). It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1999). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1999). 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 (1999). The United States Court of Appeals for Veterans Claims (the Court) has held that for the purpose of appeals, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should be applied unless provided otherwise by statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The schedular rating criteria for evaluating respiratory disabilities were amended on October 7, 1996. The Board notes that, while the current appeal arises from a rating action issued subsequent to October 7, 1996, the current appeal is part of a "continuing appeal" of the veteran's claim of service connection for a nasal deviation filed in April 1990. See generally Grantham v. Brown, 114 F.3d 1156 (1997). Accordingly, the Board will apply whichever schedular criteria, as between those in effect prior to October 7, 1996, and those effective on that date, are more favorable to the veteran. The Board has reviewed the evidence and finds that a compensable disability evaluation is not warranted under either the criteria effective prior to October 7, 1996, or the criteria currently in effect. The veteran's deviated nasal septum is rated under 38 C.F.R. § 4.97, Diagnostic Code 6502. Under the criteria in effect prior to October 7, 1996 a noncompensable rating was assigned if the deviated nasal septum resulted in slight symptoms. A 10 percent was assigned if there was marked interference with breathing space. 38 C.F.R. § 4.97, Diagnostic Code 6502 (1996). The Schedule currently calls for a 10 percent evaluation if there is a 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502 (1999). The evidence shows that the veteran was treated in October 1972 for a deviated nasal septum. In June 1977 and July 1981, the veteran underwent surgery to correct this disability. In January 1991, the veteran underwent a VA examination. The examination report indicates that the veteran had difficulty breathing. X-ray examination revealed "maxillary antra sinusitis changes." The veteran's symptoms were attributed to a final diagnosis of "allergic rhinitis," rather than a deviated nasal septum. An April 1997 VA examination report indicates that the veteran complained of a nasal obstruction and difficulty breathing. The examination showed that the veteran septum was in the midline. There was minimal deformity of the right nasal bone inferiorly with a minimal convexity of the nasal septum to the right externally. A diagnosis of "nasal septum deviation" was rendered. An October 1998 statement from Dr. Jose Arrieta states that the veteran has a history of two surgical procedures to correct nasal obstruction with poor results. He indicates that the veteran is "almost a mouth breather due to almost complete (80%) obstruction of both nasal passages." At a January 1999 personal hearing before a Hearing Officer, the veteran stated that he experienced constant suppuration and discharge due to his deviated nasal septum. He indicated that both nostrils were completely blocked requiring him to breathe constantly through his mouth. As a result of his blocked nasal passage, his mouth and palate become dry requiring him to drink water and use over the counter medication such as Vicks lozenges. The most recent VA examination report, dated in February 1999, shows that the veteran continued to complain of difficulty breathing. The report indicates that there was mild interference with breathing in the left side of the nose and that the left nostril was 5 percent obstructed. No other symptoms were noted. The veteran had no speech impairment. Sinus x-rays were normal. The report indicates that there was no tenderness, purulent discharge, dyspnea, or crusting. The Board concludes that the criteria for a compensable rating for a deviated nasal septum are not met as the medical evidence does not show marked interference with breathing space, a 50 percent obstruction of the nasal passage on both sides, or complete obstruction of the nasal passage on one side. The Board has considered all the evidence of record including the October 1998 statement from Dr. Arrieta. The Board notes that, while he indicates that the veteran has almost complete obstruction in both nasal passages, the evidence does not contain any clinical treatment records from Dr. Arrieta. In June 1999, a request for medical records along with a signed form from the veteran authorizing the release of such records was furnished to Dr. Arrieta. In July 1999, Dr. Arrieta responded with a written statement on the medical release indicating that he had treated the veteran for chronic nasal obstruction since October 1972; however, Dr. Arrieta did not provide any medical records that would indicate that the symptomatology of the veteran's deviated nasal septum was of such severity to warrant an increased rating. The most recent medical evidence comes from a February 1999 VA examination report that shows that, while there is septal deviation, it is mild and results in a 5 percent obstruction of the left nostril. The examination report does not indicate that obstruction was manifested to any significant degree on the right side. While this report indicates that there is left side obstruction, it does not show that such obstruction is complete, as required by the diagnostic criteria for a compensable rating. It must also be noted that the medical evidence does not include any other clinical examination dated subsequent to February 1999 that would indicate that there is marked interference with breathing space, left side nasal obstruction is more severe than indicated at that time, or that there is obstruction of both sides to the degree that there is 50 percent obstruction. Consequently, a compensable rating is not warranted under either the current rating criteria or the rating criteria in effect prior to October 7, 1996. 38 C.F.R. §§ 4.31, 4.96, 4.97 (1996), (1999). The veteran's contentions and hearing testimony on appeal have been accorded careful and compassionate consideration; however, the Board concludes that the medical findings discussed above are more probative of the level of disability. It should be emphasized that the diagnoses and clinical findings rendered on the recent VA examinations are consistent with the medical history, described in detail above, and are essentially uncontradicted by any other recent medical evidence of record, especially in lieu of the fact that Dr. Arrieta did not supply clinical records to support his statement of disability. With regard to the above, the Board observes that the veteran is not shown to be qualified to render a medical diagnosis or opinion. Hence, his views as to the extent of functional impairment in his nose are specifically outweighed by the medical evidence of record cited above. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (lay assertions will not support a finding on questions requiring medical expertise or knowledge). In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (1999). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. In this regard, the schedular evaluation assigned in this case for the appellant's deviated septum disability is not inadequate. As the schedular criteria provide a basis to award increased compensation in this case for this disability, it does not appear that the appellant has an "exceptional or unusual" disability. Moreover, the Board finds no evidence of an exceptional disability picture. It is not shown by the evidence that the appellant has required frequent hospitalization in the remote or recent past for either his deviated septum disability. Thus, in the absence of any evidence which reflects that this disability is exceptional or unusual such that the regular schedular criteria are inadequate to rate it, the RO's failure to consider or to document its consideration of this section was not prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Finally, in reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against a rating above that now assigned, the doctrine is not for application. ORDER A compensable (or higher) original disability evaluation for a deviated nasal septum is denied. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals