Citation Nr: 1315641 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 10-40 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for residuals of a rhinoplasty, claimed as sinusitis, from August 15, 2004; to a compensable rating for the period from January 1, 2006; and to any possible periods of convalescence after surgery pursuant to 38 C.F.R. § 4.30 (2012). 2. Whether there was clear and unmistakable error (CUE) in an April 7, 1971 rating decision that denied service connection for a nasal condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse and friend ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran's claim for service connection for the residuals of a rhinoplasty and awarded an initial 30 percent disability rating for the period from August 15, 2004, and a noncompensable disability rating for the period since January 1, 2006. In March 2012 correspondence, the RO denied the Veteran's claim that there was clear and unmistakable error (CUE) in an April 7, 1971 rating decision. In February 2013, the Veteran, his spouse, and a friend testified before the undersigned Veterans Law Judge during a Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. At the time of the hearing, the Veteran signed a waiver of initial RO consideration of new evidence he submitted to VA, including correspondence from his brother and from two private physicians. The Board notes that during the hearing the Veteran testified to several surgeries possibly related to his service-connected residuals of a rhinoplasty. Therefore, the higher rating claim on appeal should include the possibility of awarding a temporary total evaluation (TTE) for any period of convalescence after a surgery related to his service-connected disability, pursuant to the provisions of 38 C.F.R. § 4.30 (2012). The claim as listed on the title page has been modified to reflect this development. The Board also notes that during the hearing the issue of the CUE claim and of an earlier effective date for the grant of service connection for the residuals of a rhinoplasty was raised. Both a CUE claim and an earlier effective date claim in this instance attempt to do the same thing - to back date the grant of service connection to 1971 when service connection was originally denied as a preexisting developmental condition. During the hearing the Veteran testified that this was his objective. However, the Court has held that under VA law there is no basis for a freestanding earlier effective date claim from matters addressed in a final rating decision, such as the April 1971 rating action. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Therefore, the Board only adds the CUE claim to the list of issues on appeal but notes that the grant of his CUE claim would award the same benefit he would otherwise receive if he could validly raise the earlier effective date claim he mentioned during the hearing. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant, if further action is required. REMAND Unfortunately, a remand is required for the Veteran's claims listed on the title page. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Concerning the Veteran's claim for a higher rating for his service-connected residuals of an inservice rhinoplasty, the Board notes that the Veteran testified to a chronic disorder with constant swelling, constant drainage, and constant infections with purulent discharge and crusting after several surgeries. See 38 C.F.R. § 4.97, Diagnostic Code 6514 (2012) (criteria for rating chronic sinusitis). He also told the Board that while the July 2006 VA examiner found that his sinusitis symptoms had resolved by the time of a January 2006 X-ray study, he believed his service-connected disorder was essentially the same as it was in service back in 1970, despite three nasal surgeries. See Board hearing transcript at pp. 4-6, 9-10. The Veteran also testified that he sees five private doctors for this service-connected disorder and none at the VA Medical Center. Id. at 7. The Board informed the Veteran that such private medical evidence was relevant and should be associated with his claims file. The undersigned provided the Veteran and his representative an additional 60 days within which to provide this evidence and avoid a remand to the RO. This evidence has not been provided. Therefore, on remand, the RO/AMC should attempt to obtain and associate with the claims file all outstanding private medical records related to the Veteran's claims for higher ratings for his sinusitis disorder that are not already associated with the claims file. The Board notes that there are no private treatment records found in the claims file after November 2008 and that most medical records are dated before 2007. Thus, there are no medical records with which to rate the Veteran's disorder for at least half the period of time on appeal. While the Veteran submitted correspondence from two private physicians at the time of the hearing, the Board finds these statements are of a general nature and lack the criteria necessary to provide a rating under the relevant diagnostic criteria. The Board also notes that the Veteran and his witnesses testified to at least two post-service surgeries that may be related to his service-connected sinusitis disorder, including one in February 2012. Id. at pp. 5, 19. Thus, the possibility exists that the Veteran could be entitled to a temporary total evaluation (TTE), or temporary 100 percent rating, for one or more periods of convalescence after surgery performed when service connection was in effect. See 38 C.F.R. § 4.30 (for rating periods of convalescence). Thus, the private medical records sought on remand are also needed to document any post-service surgeries related to his service-connected disorder. In his Board testimony the Veteran conceded that his last VA examination of his sinusitis disorder was in July 2006, nearly seven years ago, and that it was conducted immediately after 35 months of radiation when the VA examiner found there were no symptoms of sinusitis. However, the Veteran testified that his symptoms now are worse than what was described and found in the July 2006 VA examination. See hearing transcript at p. 9. Therefore, a new and contemporaneous VA examination should be administered to determine the current severity of the Veteran's sinusitis disability. See 38 C.F.R. § 3.159 (2012); see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Concerning the Veteran's claim for CUE in an April 7, 1971 rating decision that denied service connection for a nasal condition, the Board notes that the Veteran attempted to file such a claim in September 2010. He complained that his service connection claim was denied based on a misdiagnosis and contrary to a proper application of the presumption of soundness found at 38 C.F.R. § 3.304 (b). A review of the claims file discloses that the RO denied the CUE claim in correspondence to the Veteran dated in March 2012. This correspondence listed six separate reasons why the RO thought the Veteran's September 2010 filing did not meet the criteria as a valid CUE claim. The Board's review of the claims file discloses no formal Notice of Disagreement (NOD) was ever filed to appeal the March 2012 denial. However, the Board will accept the Veteran's February 2013 hearing testimony and transcript as a timely NOD with the RO's March 2012 decision letter. See 38 C.F.R. §§ 20.200 and 20.201 (2012) (noting a NOD begins an appeal of an issue and that a NOD must be in terms reasonably construed as disagreeing with an adjudicative determination by an agency of original jurisdiction and express a desire for appellate review). As the RO has not had the opportunity to issue a Statement of the Case (SOC) addressing the CUE claim, the claim is remanded for the issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: (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. The RO/AMC should contact the Veteran and his representative and obtain the names, addresses and approximate dates of treatment for all medical care providers, especially the five private physicians referred to in his February 2013 Board hearing, who treated or who now treat the Veteran for his service-connected sinusitis disability and whose records have not been associated with the claims file. Of particular importance are private medical records documenting any nasal surgery conducted after service connection became effective for his sinusitis disability. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims file. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. The RO/AMC shall re-examine the Veteran's claim whether there was clear and unmistakable error (CUE) in an April 7, 1971 rating decision that denied service connection for a nasal condition. When no additional development is required, the RO/AMC should prepare a Statement of the Case in accordance with 38 C.F.R. § 19.29, unless this matter is resolved by granting the benefit sought, or by the Veteran's withdrawal of the Notice of Disagreement. If, and only if, the Veteran files a timely VA Form 9, Substantive Appeal, should this issue be returned to the Board. 3. After the development requested above has been completed, the RO/AMC should arrange for the Veteran to undergo a VA examination by an appropriate physician to determine the current severity of his sinusitis disorder. All indicated tests and studies are to be performed. Prior to the examination, the entire claims folder, including the transcript of the Veteran's February 2013 testimony, and copies of this remand and 38 C.F.R. § 4.97, Diagnostic Code 6513 must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. In the examination report, after examining the Veteran and reviewing the private medical evidence found in the claims file, the physician is requested to identify whether there is medical or lay evidence of near constant sinusitis, with headaches, pain, and tenderness of affected sinus as well as purulent discharge or crusting after repeated surgeries; the number of incapacitating episodes per year of sinusitis requiring weeks of antibiotic treatment; the number of non-incapacitating episodes per year of sinusitis characterized by headache, pain, and purulent discharge or crusting; or whether there is X-ray evidence of the Veteran's chronic sinusitis. These determinations should be made for each of the time periods currently in dispute: from August 15, 2004 to December 31, 2005; from January 1, 2006 to the present; and for any period before August 15, 2004 that may become relevant if the RO grants the Veteran's CUE claim. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After all development has been completed the RO/AMC shall adjudicate the Veteran's higher rating claims related to his service-connected residuals of an inservice rhinoplasty, to include, if applicable, any periods of convalescence after surgeries pursuant to 38 C.F.R. § 4.30. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). _________________________________________________ F. JUDGE FLOWERS 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) (2012).