Citation Nr: 1300215 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-04 285A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for injuries of the face, including a nose fracture. 2. Entitlement to service connection for a left eye injury. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1943 to February 1946. The Veteran's face injuries claim comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal. The Veteran filed a Notice of Disagreement (NOD) in August 2007. The RO issued a Statement of the Case (SOC) in February 2010. In February 2010, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. The Veteran's left eye claim comes before the Board on appeal from a January 2008 rating decision of the VA RO in St. Petersburg, Florida, which denied the benefit sought on appeal. The Veteran filed a NOD in June 2008. The RO issued a SOC in February 2010. In February 2010, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. In March 2011, the Veteran testified at a Travel Board hearing. The Veteran testified that his claim for facial injuries includes an injury to the left side of the face. The Board has recharacterized the claim to reflect the Veteran's contention. A copy of the hearing transcript has been included in the claims file. In May 2011, the Board reopened the Veteran's previously denied claim of entitlement to service connection for injuries of the face. The Board then remanded this issue, along with the left eye claim, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. Upon remand, the VLJ who conducted the March 2011 Board hearing retired. In October 2012, the Board sent the Veteran a letter informing him of this and indicating he could have another Board hearing with another VLJ who would ultimately decide this appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. §§ 20.707, 20.717 (2012). The Veteran did not respond to this letter. Thus, the Board will decide his case based on the evidence currently of record. Id. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. The issues of: (1) entitlement to service connection for a disorder associated with an inability to urinate; and, (2) whether new and material evidence has been received to reopen a claim of service connection for emphysema, have been raised by the record in a June 2011 statement by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a left eye injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his current deviated right nasal septum is shown to be etiologically related to his active military service. CONCLUSION OF LAW Service connection for a deviated right nasal septum (previously claimed as injuries of the face, including a nose fracture) is established. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.304, 3.326(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the Board is granting the claim on appeal. Thus, there is no prejudice to the Veteran and no further discussion of the VCAA is required. II. Service Connection The Veteran seeks service connection for injuries of the face, including a nose fracture, from an in-service facial trauma. Service connection may be granted if it is shown that a veteran suffers from a disorder resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during the active military service of a pre-existing disorder beyond its natural progression. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish service connection, there must be: (1) a medical diagnosis of a current disorder; (2) medical or, in some cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between an in-service injury or disease and the current disorder. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a disorder was "noted" during the active military service; (2) evidence of post-service continuity of the same symptomatology; and, (3) medical or, in certain circumstances, lay evidence of a nexus between the present disorder and the post-service symptomatology. Evidence of a chronic disorder must be medical, unless it relates to a disorder to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current disorder to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 498 (1997). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2012). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will provide a summary of the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Here, regarding a current diagnosis, the Veteran was diagnosed with a deviated right nasal septum at the March 2012 VA examination. Thus, the Veteran has met the initial requirement of service connection. Regarding an in-service incurrence, the Veteran's statements and Board hearing testimony reflect his contention that he sustained facial injuries during his in-service invasion of Iwo Jima. The Veteran has indicated that a soldier struck him in the face with a rifle and knocked out many of his teeth. This incident is not documented in the Veteran's service treatment records (STRs). However, the Veteran's military separation examination, in addition to the December 2009 VA examination, reflects a diagnosis of loss of teeth and dentures. These findings were not reported on the Veteran's entrance into the military. Thus, the Board finds the Veteran's statements regarding the facial trauma to be both competent and credible, as they are supported by the medical evidence. Therefore, the Board concedes that the in-service facial trauma occurred. The Veteran's active military service ended in February 1946. Post-service, in August 1959, the Veteran was first treated for and diagnosed with a deviated right nasal septum and sinusitis by the VA Medical Center (VAMC). In March 2012, the Veteran was afforded a VA examination to assess the nature and etiology of his current facial injuries. He was diagnosed with a deviated right nasal septum at the examination. Following a review of the claims file, the VA examiner then determined that the Veteran's current deviated right nasal septum is at least as likely as not related to his active military service. The examiner reasoned that the Veteran's STRs are silent for any trauma during the Veteran's active military service. However, the examiner noted that the Veteran's right nasal septal deviation was documented in the rating decision dated in October 1960. In this regard, the Board notes that the October 1960 rating decision referred to the August 1959 VA treatment record for a deviated right nasal septum. The March 2012 VA examiner continued by stating that if the injury is conceded (per the December 3, 2010 VA examination), then the Veteran's current septal deviation "could be the result." The Board notes that the December 3, 2010, examination report was incorrectly labeled with the wrong date; the correct date is December 3, 2009, as shown by the examiner's opinion at the end of the report. Nonetheless, in the December 3, 2009, examination report, the examiner notes that VA has conceded that the in-service facial trauma occurred. Thus, since the in-service facial trauma has been conceded, the Board finds that March 2012 VA examiner's opinion links the Veteran's current deviated right nasal septum to his active military service. The Veteran was afforded another VA examination in December 2009, but no medical opinion regarding the Veteran's deviated right nasal septum was provided. Thus, there are no contrary medical opinions regarding the deviated right nasal septum in the claims file. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the Veteran is competent to report his symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He has indicated that ever since service, he has suffered from nose pain and drainage, all associated with a deviated right nasal septum. The Board also finds that the Veteran's statements are credible. In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Since his military discharge, the Veteran has argued that his current nose problems are due to the in-service facial trauma. See Board hearing transcripts dated in July 1960 and March 2011. The Veteran has never alleged an alternate etiology for his current nose problems. The lay evidence is also supported by the objective, medical record. The in-service incurrence of his facial trauma is supported by the medical evidence of missing teeth. Further, a VA medical examiner contributed the Veteran's in-service facial trauma to his current deviated right nasal septum diagnosis. Accordingly, given the STRs, the Veteran's lay statements, and the post-service VA medical opinion that attributes the Veteran's current deviated right nasal septum to his active military service, service connection is warranted. The evidence favors the Veteran's claim and there is no evidence holding otherwise. Service connection for a deviated right nasal septum is granted. ORDER The claim for service connection for a deviated right nasal septum (previously claimed as injuries of the face, including a nose fracture) is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. REMAND The Board has determined that further development of the Veteran's left eye claim is warranted. The Veteran seeks service connection for a left eye injury, claimed as due to an in-service facial trauma. Just prior to filing his service connection claim in August 2007, a VA treatment record dated in May 2007 diagnosed the Veteran with posterior vitreous detachment (PVD) of both eyes (OU). The Veteran was then afforded a VA eye examination in December 2009. The examiner concluded that there was no evidence of eye injury or trauma upon examination. However, the examiner indicated that the Veteran did suffer from dry eyes and decreased vision in his left eye. The examiner did not provide a medical opinion. Based on the Veteran's lay statements of left eye problems, the Board remanded the claim for a VA medical opinion to be obtained regarding the etiology of the Veteran's current left eye problems. In April 2012, the Veteran was afforded a VA examination. The examiner determined that the Veteran does not have a current eye disability. However, the examiner noted that the Veteran does have vision problems in his left eye, correctable by glasses. The April 2012 VA examiner did not provide a medical opinion. Thus, the aforementioned evidence establishes that the Veteran has a current left eye diagnosis, to include vision loss, dry eyes, and PVD. Regarding an in-service incurrence, the Veteran's statements and Board hearing testimony reflect his contention that he sustained facial injuries during his in-service invasion of Iwo Jima. The Veteran has indicated that a soldier struck him in the face with a rifle and knocked out many of his teeth. This incident is not documented in the Veteran's STRs. However, the Veteran's military separation examination, in addition to the December 2009 VA examination, reflects a diagnosis of loss of teeth and dentures. These findings were not reported on the Veteran's entrance into the military. Thus, the Board finds the Veteran's statements regarding the facial trauma to be both competent and credible, as they are supported by the medical evidence. Therefore, the Board concedes that the in-service facial trauma occurred. There is no VA etiology examination of record with respect to the Veteran's current left eye disorder. The threshold for finding a link between the current disorder and the active military service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Thus, as the record establishes the existence of a current disorder and in-service complaints related to a left eye disorder, a VA medical opinion is required to determine the nature and etiology of the disorder. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon, 20 Vet. App. at 83. Thus, the Board must again remand this claim for a VA addendum medical opinion to be obtained. Id. Additionally, the most recent outpatient treatment records from the VAMC in Bay Pines, Florida, are dated from January 2010. On remand, all pertinent records since this date should also be obtained and added to the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate all pertinent VA outpatient treatment records from the Bay Pines, Florida, VAMC dated since January 2010. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 2. The RO/AMC shall ask the April 2012 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran's current left eye disorder, to include vision loss, dry eyes, and posterior vitreous detachment. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and offer an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's current left eye disorder, to include vision loss, dry eyes, and posterior vitreous detachment, is related to his active military service, to include the conceded in-service facial trauma from a rifle butt. In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. After any additional development or notice deemed appropriate, the record should again be reviewed. The claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs