Citation Nr: 1237254 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-15 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an ear, nose, and throat (ENT) condition. 2. Entitlement to service connection for sinusitis, to include as secondary to an ENT condition. 3. Entitlement to service connection for an esophagus condition, to include as secondary to an ENT condition. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from March 1954 to January 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Houston, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In January 2010, the Veteran and his wife testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In March 2010, the Board denied entitlement to service connection for an ENT condition, for sinusitis, and for an esophagus condition. In December 2010, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion to remand these three issues to the Board. In September 2011, the Board remanded these three issues for further evidentiary development. In a September 2011 decision, the Board denied entitlement to service connection for a chronic lung disability. Because a final Board decision was rendered with regard to this issue, it is no longer a part of the current appeal. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Except for two March 1954 records from the Office of the Surgeon General and a January 1956 service separation examination report, the Veteran's service treatment records were found to be fire-related, and all efforts to obtain such records have been unsuccessful. The Veteran was notified in an August 2006 letter of the fire-related status of his service treatment records. The Board is mindful that, in a case such as this where service records are unavailable, VA has a heightened obligation to assist the Veteran in the development of his claims. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The record reflects that the Veteran is receiving disability benefits from the Social Security Administration (SSA). A request must be made to the SSA for all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). ENT Condition The Veteran contends that he broke his nose during service and that such injury led to an ENT condition. With regard to the ear component of an ENT condition, the Board notes that the Veteran is already service-connected for bilateral hearing loss and for tinnitus; therefore, these disorders are not construed to be part of any issue currently on appeal. The available service treatment records are negative for any ear disability. In a September 2009 VA treatment record, more than 50 years after his service discharge, he was assessed with right otitis media. With regard to the nose component of an ENT condition, the Veteran has made conflicting statements about how he broke his nose in service. In a December 2005 statement, he alleged that he was forced to stand at attention in service for an extended period of time while he was ill, which caused him to pass out and fall on his face, breaking his nose in several places. At his January 2010 Board hearing, he testified that he broke his nose in service when someone punched him in the nose. The available service treatment records are negative for any nasal fracture or nose disability. The first post-service medical records documenting a nose disability are dated in 1998 and 1999, more than 40 years after his service discharge, when he was diagnosed with septal deviation, turbinate hypertrophy, and chronic rhinitis. He underwent septoplasty with bilateral turbinate reduction in June 1999. With regard to the throat component of an ENT condition, the available service treatment records document that the Veteran was diagnosed with acute pharyngitis in March 1954. At his January 1956 service separation examination, his mouth and throat were evaluated as normal. In a September 2009 VA treatment record, more than 50 years after his service discharge, he was assessed with pharyngitis. As the record reflects that the Veteran was diagnosed with pharyngitis in service as well as during the period of the current claim, he is to be scheduled for an appropriate VA examination to determine the nature of any current throat disorder, and to obtain an opinion with adequate supporting rationale regarding the relationship between any such disorder and any incident of his military service. Sinusitis The Veteran contends that he broke his nose during service and that such injury led to sinusitis. He also contends that his current sinusitis is the result of an ENT condition (which is not currently service-connected). As outlined above, the Veteran has made conflicting statements about how he broke his nose in service. The available service treatment records are negative for any nasal fracture, nose disability, or sinusitis. The medical evidence reflects that he was not treated for a nose disability until 1998, more than 40 years after his service discharge. VA treatment records dating from 2001 through 2012 reflect that the Veteran's current medical problem list includes sinusitis. The claim for service connection for sinusitis is inextricably intertwined with the claim for service connection for an ENT condition; the final outcome of the ENT condition claim could materially affect the result of the sinusitis claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The sinusitis claim must be readjudicated after the ENT condition claim is readjudicated following the completion of the development requested on remand. Esophagus Condition The Veteran contends that he broke his nose during service and that such injury led to an esophagus condition. He also contends that his current esophagus condition is the result of an ENT condition (which is not currently service-connected). As outlined above, the Veteran has made conflicting statements about how he broke his nose in service. The available service treatment records are negative for any nasal fracture, nose disability, or esophagus condition. VA treatment records dating from 2005 through 2012 reflect that the Veteran's current medication list includes Omeprazole, which is used to treat gastrointestinal reflux disease. The claim for service connection for an esophagus condition is inextricably intertwined with the claim for service connection for an ENT condition; the final outcome of the ENT condition claim could materially affect the result of the esophagus condition claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The esophagus condition claim must be readjudicated after the ENT condition claim is readjudicated following the completion of the development requested on remand. Accordingly, the case is REMANDED for the following: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is required.) 1. Contact the SSA and request copies of all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. If provided by disc, print out the records and associate the copies with the claims file. Any negative search result is to be noted in the record and communicated to the Veteran. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any throat disorder (claimed as an ENT condition). The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to determine the nature of any current throat disorder. All required testing must be performed. Based on the examination and review of the record, the examiner is to opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed throat disorder is related to any incident of the Veteran's military service. The examiner is to specifically consider and address the Veteran's diagnosis of pharyngitis in service in March 1954 and his diagnosis of pharyngitis during the period of the current claim in September 2009. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal for service connection for an ENT condition, followed by the claims on appeal for service connection for sinusitis and for an esophagus condition. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).