Citation Nr: 0814416 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-32 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a nasal disorder. 2. Entitlement to a rating in excess of 10 percent for low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from December 1965 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The veteran testified before the undersigned at a hearing held in February 2005. The Board remanded this case in August 2005. The Board's August 2005 remand requested that the RO issue the veteran a statement of the case (SOC) addressing the issue of service connection for throat disability and the issue of entitlement to an effective date earlier than March 30, 2004, for the award of service connection for residuals of an injury to the nasolacrimal duct. The record shows that a responsive SOC was issued in August 2006. Thereafter, no further communication from either the veteran or his representative was received with respect to the above two issues until February 2008. At that time, and apparently because the RO's certification of the appeal listed those two issues, the representative listed the referenced issues as on appeal, but offered no argument as to either matter. The RO's certification of an issue to the Board is an administrative act which does not serve to confer jurisdiction on the Board. See 38 C.F.R. § 19.35 (2007). Given that the veteran has not expressed any interest in pursuing an appeal of the issues of service connection for throat disability and entitlement to an effective date earlier than March 30, 2004, for the award of service connection for residuals of an injury to the nasolacrimal duct, and as the mention of those issues in the representative's February 2008 statement appears to have been based on the RO's certification of the issues rather than a belief that the referenced issues are on appeal, the Board finds that the veteran is not currently pursuing an appeal of the above issues. The issue of entitlement to a rating in excess of 10 percent for low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's current nasal disorder originated in service. CONCLUSION OF LAW The veteran's nasal disorder is due to a disease or injury that was incurred in active duty. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2007), VA has certain duties to notify and assist the veteran in his appeal. However, given the favorable action taken hereinbelow, further discussion explaining how VA complied with those laws is unnecessary. The Board notes in passing that although the RO never advised the veteran of the information and evidence necessary to substantiate the initial rating assigned and the effective date for the grant of service connection in the event his claim was successful, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the RO can rectify this in the course of implementing the Board's decision in this case. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The service medical records show that the veteran was treated in December 1971 for a laceration under his right eye. X-ray studies of the right orbit and sinus were negative at the time, but later X-ray studies in March 1973 demonstrated mucosal thickening of the right maxillary sinus, compatible with chronic right maxillary sinusitis. At an April 1975 VA examination, the veteran reported the service facial injury, and indicated that he was experiencing facial nerve damage. Clinical examination of the sinuses revealed no abnormalities. At an August 1982 VA examination the veteran mentioned the facial injury in service, and reported current complaints including uncontrolled discharge from the right nostril. Physical examination of the sinuses revealed swollen turbinates. The examiner concluded that the veteran had no general medical disease. On file are VA treatment records for May 1994 to June 2004. The records show that in October 1996 the veteran reported developing rhinorrhea following trauma to his nose; physical examination was normal, but he was diagnosed as having rhinitis. Treatment records for 2002 show that he reported a history of facial trauma in service, with subsequent intermittent right nasal discharge and congestion. Diagnostic studies in 2002 showed variable, but abnormal, sinus findings, and a computed tomography scan in July 2002 showed a polypoid mass in the right inferior turbinate. Physical examinations in 2002 demonstrated enlargement of both turnbinates, and the veteran underwent several excisions during the year of right turbinate masses; the pertinent diagnoses were recurrent nasal polyposis and polypoid rhinitis versus neoplasm, and the masses were noted to intermittently obstruct nasolacrimal duct flow. In April 2004 he presented with large inferior turbinates and an undulated septum; the veteran was diagnosed as having vasomotor rhinitis with turbinate hypertrophy. At a November 2002 VA examination, the veteran discussed the service laceration injury, and indicated that his current symptoms included excessive right nasal discharge. In October 2004, service connection was granted for residuals of an injury to the nasolacrimal duct of the right eye. At his February 2005 hearing before the undersigned, the veteran described his service facial injury, and explained that a growth had been removed from his nasal passage. At a December 2005 VA examination, the veteran reported that since his service facial injury, he had experienced right- sided rhinorrhea, and nasal obstruction (worse on the right). He also reported undergoing removal of a right inferior turbinate mass in 2002, which was considered consistent with an allergic polyp. Physical examination showed a right polypoid inferior turbinate with hypertrophy of the right turbinate and left inferior turbinate. The examiner concluded that it was at least as likely as not that the veteran's nasal disorder was causally related to the facial injury in service. She repeated her conclusion in a June 2006 addendum. Service medical records document that the veteran sustained an injury to his face, and X-ray studies during service demonstrated abnormal sinus findings. Although there is no post-service medical records documenting nasal complaints until around 1982, the Board finds credible the veteran's assertion that he nevertheless had experienced nasal symptoms regularly since service. The post-service medical records document the presence of nasal disorders including rhinorrhea and recurrent nasal polyps. In support of the veteran's claim is the report of the December 2005 VA examination. The examiner for that evaluation specifically concluded that it was at least as likely as not that the veteran's current nasal disorder is etiologically related to the service injury. The December 2005 opinion is the only medical opinion of record addressing the etiology of the veteran's claimed nasal disorder. Given the documented facial injury and positive sinus X-ray findings in service, the veteran's account of continuity of nasal symptomatology since that injury, and the December 2005 examiner's opinion linking the current nasal disorder to service, the Board finds the evidentiary record serves to establish that it is at least as likely as not that the veteran's current nasal disorder originated in, or is otherwise etiologically related to his period of service. Accordingly, by extending the benefit of the doubt to the veteran, service connection for a nasal disorder is warranted. ORDER Entitlement to service connection for a nasal disorder is granted. REMAND The veteran contends that the evaluation currently assigned his lower back disorder does not accurately reflect the severity of that disability. Service connection is in effect for lumbosacral strain. The August 2005 remand requested that the RO afford the veteran a VA examination which was to "delineate all manifestations of the veteran's low back disability, to include any . . . neurologic abnormalities . . . ." The veteran thereafter attended VA orthopedic and neurologic examinations in December 2005. The orthopedic examiner noted that the veteran denied using assistive devices, but complained of occasional unsteadiness or falls; that examiner diagnosed the veteran as having degenerative disc disease. The neurologic examiner, after noting that prior electrodiagnostic studies of the lower extremities had been negative for pertinent pathology, apparently observed the presence of mild right foot drop on examination. He also found, though, that the veteran's deep tendon reflexes were worse in the left ankle than in the right. The examiner diagnosed the veteran as having chronic post-traumatic low back pain syndrome, but did not include any diagnosis with respect to foot drop. The neurologic examiner also did not address whether the foot drop represented a neurologic abnormality associated with the lower back disorder. The Board points out that although past electrodiagnostic studies have demonstrated the presence of peroneal neuropathy, the medical records do not indicate that the veteran had a foot drop, although a June 1999 VA examination noted a one-week history of foot drop in 1989, which had resolved. The rating criteria for evaluating disorders of the spine specify, with respect to a service-connected spinal disorder, that any associated objective neurologic abnormalities are to be separately evaluated. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2007). Consequently, given the inconsistencies in the examination report (such as the absence of a corresponding diagnosis of foot drop), and as the neurologic examiner did not, in any event, indicate whether any neurologic abnormality represented a manifestation of the veteran's low back disability, the Board finds that further VA examination of the veteran is required. The Board also notes that the veteran apparently received VA vocational rehabilitation benefits during the course of this appeal. His vocational rehabilitation folder should be obtained. The Board lastly notes that while the veteran received notice under 38 U.S.C.A. § 5103(a) in October 2002 as to his increased rating claim, in a recent opinion the United States Court of Appeals for Veterans Claims (Court) established enhanced notification duties with respect to increased rating claims. Specifically, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held that a notice letter must inform the veteran that, to substantiate a claim, he or she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement. The Court specifically took issue with a notice letter advising the appellant that to substantiate his claim, the evidence must show that his disorder had "gotten worse." In this case, the October 2002 correspondence did not provide the veteran with the type of notification now required by Vazquez-Flores, specifically as to the need for evidence showing the effect of any worsening on the claimant's employment and daily life. The letter instead advised the veteran that to substantiate his claim, the evidence must show that the condition at issue had increased in severity. Although the veteran arguably demonstrated, through his February 2005 testimony, actual knowledge of the need for evidence as to the effect on employment, he has not evidenced actual knowledge as to the need to show the effect on daily life. On remand, the veteran should be provided with appropriate 38 U.S.C.A. § 5103(a) notice. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should send the veteran a letter that complies with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), with respect to his increased rating claim. The letter must advise the veteran of the information and evidence necessary to substantiate his increased rating claim with the specificity required by Vazquez- Flores, particularly as to the need for medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The letter must specifically inform the veteran which portion of the evidence is to be provided by the claimant, which part, if any, the RO will attempt to obtain on his behalf, and a request that the veteran provide any evidence in his possession that pertains to his claim. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 2. The RO should contact the veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private who may possess additional records pertinent to his claim. With any necessary authorization from the veteran, the RO should attempt to obtain and associate with the claims files any medical records identified by the veteran which have not been secured previously. 3. If the RO is unsuccessful in obtaining any medical records identified by the veteran, it should inform the veteran and his representative of this and ask them to provide a copy of the outstanding medical records. 4. The RO should obtain the veteran's VA vocational rehabilitation folder. 5. Thereafter, the RO should arrange for VA orthopedic and neurologic examinations of the veteran by physicians with appropriate expertise to determine the nature, extent and severity of the veteran's service-connected low back disability. All indicated studies, including range of motion studies in degrees, should be performed. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The physicians should identify any objective evidence of pain or functional loss due to pain. Any specific functional impairment due to pain should be identified, and the examiners should be requested to assess the extent of any pain. The physicians should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physicians should so state. The neurologic examiner should specifically indicate, with respect to any degenerative disc disease found, whether the veteran has experienced incapacitating episodes (i.e., periods of acute signs and symptoms due to an intervertebral disc syndrome (IVDS) that require physician prescribed bed rest and treatment by a physician) of IVDS over the past 12 months, and if so, identify the total duration of those incapacitating episodes over the past 12 months. The neurologic examiner should also identify any associated objective neurologic abnormalities, including any foot drop. The examiner should also set forth findings relative to neurologic impairment evident from the veteran's IVDS. Any abnormal sciatic, peroneal, popliteal or other nerve findings due to IVDS should be described in detail and the degree of paralysis, neuritis or neuralgia should be set forth (i.e. mild, moderate, severe, complete). The examiners should also provide an opinion as to the impact of the veteran's low back disability on his employability. The rationale for all opinions expressed should be explained. The claims files must be made available to and reviewed by the examiners. 6. The RO should then prepare a new rating decision and readjudicate the remaining issue on appeal. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs