Citation Nr: 1328105 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-18 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a sinus condition, to include a deviated septum. 3. Entitlement to an initial compensable rating for social phobia. 4. Entitlement to an initial disability rating in excess of 10 percent for tremors. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from December 1986 to December 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for headaches and a sinus condition. The Veteran submitted a Notice of Disagreement (NOD) with this determination in May 2009 and perfected her appeal in March 2010. Additionally, in an August 2011 rating decision, the RO granted service connection for tremors and assigned a 10 percent disability rating, effective August 9, 2008. The Veteran submitted a NOD in with this determination in October 2011. After an April 2012 Statement of the Case (SOC) was provided, the Veteran submitted a June 2012 statement requesting additional time to fill out the Form 9 as she decided to obtain representation. The Board accepts this letter as a Substantive Appeal and currently has jurisdiction of the issue of entitlement to an initial disability rating in excess of 10 percent for tremors. Further, in a March 2012 rating decision, the RO granted service connection for social phobia and assigned a noncompensable disability rating, effective August 9, 2008. In a March 2013 letter, the Veteran expressed her desire to appeal this issue. The Board accepts this statement as a timely NOD to the claim of entitlement to an initial compensable disability rating for social phobia. In March 2013, the Board remanded the issues of service connection for headaches and a sinus condition on appeal to be schedule for a hearing. The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in June 2013. A written transcript of this hearing was prepared and incorporated into the evidence of record. The above development has now been completed and the claims are ready for review. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 A review of the record discloses further development is needed with respect to the Veteran's claims of entitlement to service connection for headaches and a sinus condition, and increased disability ratings for service-connected tremors and social phobia. As a preliminary matter, the Board notes that the Veteran's military service records, including her service treatment records (STRs), are not available for consideration. Multiple requests for information and a February 2009 Formal Finding of Unavailability confirm that all procedures to locate these records were followed, but unfortunately to no avail. The Board finds that additional attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2) and (3). When, as here, these service records are lost or missing, through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist her in developing her claim, and to explain the reasons and bases for the decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, merely because there are missing service records, while indeed unfortunate, does not obviate the need for the Veteran to still have medical nexus evidence supporting her claim by suggesting a correlation between her currently claimed conditions and her military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In other words, missing STRs do not lower the threshold for an allowance of a claim. There is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). Here, though, even without these missing records concerning her military service, the Board finds there is competent and credible evidence on file sufficient to accept the accidental in-service fall as true. This evidence includes August 2010 and March 2011 lay statements from the Veteran's in-service co-workers, family members, and a previous spouse, documenting the in-service incident and the residuals the Veteran suffered thereafter. Additionally, the Veteran submitted a January 2001 Settlement Agreement that discussed an accidental fall on January 29, 1999, when the Veteran was on active duty. The Veteran contends that the in-service fall accident resulted in a deviated septum, sinus issues, and ongoing headaches. At the June 2013 hearing, the Veteran reported that she had headaches and sinus pressure at the time of discharge in December 1999. Private treatment records show diagnoses of and treatment for headaches, allergic rhinitis, a deviated septum, and chronic sinusitis. The Veteran was afforded a VA examination in June 2011 to assess her headaches and sinus condition. After examining the Veteran, the VA examiner diagnosed her with chronic rhinitis and migraine headaches. The examiner concluded that the Veteran's sinus condition was less likely than not caused by or a result of a fall in service. There was no evidence in any records found that substantiates that the Veteran developed her chronic rhinitis secondary to her fall or at any time during her military service. There was no records indicating that she had been treated with any continuous medications for this as she stated and no records indicating that she had any type of surgery for this condition. Review of anatomy and medical literature in MD Consult indicated a mild contusion to the nose that did not cause a fracture would not cause any type of long standing problems further back in the sinuses, which are protected by bone. However, when rendering an opinion, the examiner failed to consider or discuss the Veteran's diagnosed deviated septum and it's relation to her fall and current sinus condition. Additionally, the examiner based his opinion on the fact that there were there was no documented medical evidence of the Veteran's ongoing medical condition. However, as noted in Buchanan v. Nicholson, the Board cannot determine that the Veteran's lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. 451 F.3d 1331 (2006). As such, the examination report is not adequate for rating purposes, and this matter must be remanded. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). The examiner also concluded that the Veteran's headaches were less likely than not caused by or a result of her fall during military service. There was no mention in the Veteran's private medical records of her having migraine headaches, and no indication in her pharmacy records from MacDill of ever being treated with medications that would be associated with migraines typically. There was no indication in medical literature review in MD Consult that minor falls associated with only minor facial trauma was associated with development of migraines. Significantly, however, in rendering this opinion, the examiner appears to have relied on an inaccurate factual history. In this regard, the examiner stated the there was no mention in the private medical records of the Veteran having migraine headaches. However, the MRI report of record notes that the Veteran had a history of trauma to the forehead, headaches, and poor balance. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). Therefore, a new VA examination is necessary to determine the Veteran's current sinus/nasal conditions and headaches, and whether they were caused by, or are otherwise related to, the Veteran's time in service or a service-connected disability. In the examination report, the examiner must acknowledge and discuss the Veteran's report of an in-service incident and continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, a remand is also necessary in order to obtain any outstanding private medical records. At the June 2013 hearing, the Veteran stated that she has been seen by her health group for years, however, only records dating back to 2010 were obtained. Additionally, the Veteran submitted a March 2012 Release and Consent form for Florida Medical Group, where she is receiving mental health treatment. Additionally, a September 2010 letter from Tampa General Hospital stated before records could be obtained, a signed and dated Authorization and Consent form need to be completed. However, it does not appear that any of the above stated records were obtained. Because it appears that there may be outstanding private treatment records that may contain information pertinent to her claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, a review of the record reflects that the Veteran filed a timely March 2013 NOD with respect to the RO's March 2012 rating decision granting a noncompensable rating for her service-connected social phobia. However, no subsequent action was taken to the Veteran's initial March 2013 NOD of the RO's March 2012 rating decision, such as supplying the Veteran with a Statement of the Case (SOC), in reference to her claim of entitlement to an initial compensable disability rating for social phobia. Where a notice of disagreement has been timely filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issues for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the Board finds that a remand is necessary for the issuance of a statement of the case for the issue of entitlement to an initial compensable disability rating for social phobia. Accordingly, the case is REMANDED for the following action: 1) The RO/AMC should contact the Veteran and request that she provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers, who have treated her for headaches, any sinus condition, social phobia, or tremors. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. Two attempts should be made to obtain relevant private records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2) The AMC should issue the Veteran a SOC pertaining to the issue of entitlement to an initial compensable disability rating for social phobia. 3) Additionally, schedule the Veteran for a VA examination to determine whether any of her current sinus/nasal conditions - deviated septum, chronic sinusitis, chronic rhinitis, or headaches - are related to the Veteran's service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed, and all findings should be reported in detail. The examiner should address the following: A. Diagnose the Veteran's current sinus/nasal conditions. The examiner should specifically state whether the Veteran currently suffers from a deviated septum, chronic sinusitis, or chronic rhinitis. B. For each diagnosis, provide an opinion as to whether it is at least as likely as not that the disorder is related to her active military service, to include an in-service injury where she fell through a sub floor and hit her head (picture of injury included). For purposes of making this determination, the examiner should accept this incident in-service as true. C. Additionally, provide an opinion as to whether it is at least as likely as not that the Veteran's headaches are related to her active military service, to include an in-service injury where she fell through a sub floor and hit her head (picture of injury included). For purposes of making this determination, the examiner should accept this incident in-service as true. Further, provide an opinion as to whether it is at least as likely as not that the Veteran's headaches were caused by her sinus/nasal conditions. Additionally, the examiner should state whether it is at least as likely as not that the Veteran's headaches were aggravated (permanently worsened) by her sinus/nasal conditions. Please specifically address whether there was any increase in severity of the Veteran's headaches that were proximately due to or the result of the Veteran's sinus/nasal conditions, and not due to the natural progress of the Veteran's headaches. In rendering these opinions, the examiner must review and discuss the Veteran's private treatment records, VA examination reports, hearing testimony, the lay statements discussing the in-service incident and the residuals the Veteran experienced thereafter, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims. If any issue is denied, the AMC should then provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant 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. 2012). _________________________________________________ WAYNE M. BRAEUER 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).