Citation Nr: 1321961 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-22 777 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial, compensable rating for status post nasal fracture with deviated septum. 2. Entitlement to service connection for a skin disorder of the neck and face, to include pseudofolliculitis barbae (PFB). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to January 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2008 rating decision in which the RO awarded service connection for status post nasal fracture with deviated septum, assigning a noncompensable rating, effective November 26, 2007; as well as denied service connection for a skin disorder of the neck and face. In July 2008, the Veteran's representative filed a notice of disagreement (NOD) on his behalf. The RO issued a statement of the case (SOC) in June 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. A current VA examination is required to adequately consider the Veteran's claim for a higher initial rating for his status post nasal fracture with deviated septum. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous evaluation where necessary to reach a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The United States Court of Appeals for Veterans Claims has held that where the Veteran claims that a service-connected disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (noting that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). In May 2008, the Veteran underwent a VA examination for his status post nasal fracture with deviated septum. Subsequently, the Veteran submitted a private medical opinion by an ear, nose and throat (ENT) physician, dated September 2009, which suggested a worsening of the Veteran's disability and that he be evaluated by a VA ENT physician. Additionally, in a June 2013 brief, the Veteran's representative asserted that the Veteran's disability had worsened since his May 2008 VA examination. As the evidence of record suggests that the Veteran's status post nasal fracture with deviated septum has increased in severity since the most recent VA examination, conducted more than five years ago, a new examination, performed by an ENT physician, is required on remand. Turning to the Veteran's service connection claim for a skin disorder of the neck and face, the Board also finds that another VA examination is warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. In this regard, service records include the report of a January 1974 entrance examination, showing that the Veteran entered service with clinically normal skin. In September 1974, he was treated for pseudofolliculitis due to shaving. A follow-up in October 1974 noted "Pseudo - seems to be under control at the time." The Veteran was prescribed shaving powder and instructed to shave once every 6 days. At the Veteran's January 1976 service separation, his skin was again found clinically normal. Post service, the Veteran's VA treatment records, dated November 2006 through October 2012, are devoid of any skin complaints, and an October 2008 entry notes that the Veteran had "normal skin turgo, no skin lesions noted." In February 2009, the Veteran underwent a VA examination, at which time the examiner found that the Veteran did not have a current skin disorder, and therefore did not render an opinion with respect to the etiology of the Veteran's claimed skin disorder. However, a private treatment note, authored by a dermatologist and dated in September 2009, reflects a diagnosis of PFB, and the examiner's notation that, at the time of examination, he exhibited three active lesions. The private physician did not offer an opinion as to the etiology of the Veteran's PFB. Accordingly, on remand, the Veteran should be reexamined to determine whether he has a current skin disability, and if so, whether such had its onset in or is otherwise medically related to service. Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent evidence. Pertinent to the claim for service connection for a skin disorder, the Veteran's representative has asserted that the Veteran was given a shaving profile (to not shave) during service, and that VA should obtain the Veteran's service personnel records. As these service records are potentially pertinent Federal records, VA has a duty to attempt to obtain these records. See 38 U.S.C.A. § 5103A (West 2002). The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to both claims on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The Veteran should identify any VA facility(ies) at which he received treatment for either disability under consideration, at any time since his discharge from service. In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication each claims should include consideration of all additional evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Contact the National Personnel Records Center, and/or any other appropriate facility (ies), to obtain the Veteran's service personnel records. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain any outstanding, pertinent VA records of evaluation and/or treatment of the Veteran since his discharge from service. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination by an ENT physician, at a VA medical facility, for evaluation or his status post nasal fracture with deviated septum. The entire claims file, to include a complete copy of this REMAND must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays, if necessary) should be accomplished, and all clinical findings should be reported in detail. The examiner should clearly identify all current residuals of the Veteran's nasal fracture with deviated septum, specifically indicating whether the Veteran has 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The examiner should set forth all examination findings, along with complete rationale for the conclusion(s) reached, in a printed (typewritten) report. 6. Also after all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA examination, by a dermatologist, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be provided to the physician designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his/her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current skin disability(ies). Then with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that disability had its onset in or is otherwise medically related to service. In rendering the requested opinions, the examiner should specifically consider and address all pertinent records-in particular, STRs showing treatment for pseudofolliculitis during service but that the Veteran separated with clinically normal skin; and post-service medical records, including the report of a February 2009 VA examination showing no skin disorder, and a private treatment note, dated in September 2009, indicating that the Veteran had a diagnosis of pseudofolliculitis barbae, and that he exhibited three active lesions on examination-as well as the Veteran's assertions. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence (to include all that added to the record since the last adjudication of the claims) and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).