Citation Nr: 1336374 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 07-32 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of a postnasal fracture with scar. 2. Entitlement to an initial rating in excess of 10 percent for allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and T.J. ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from December 2000 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in May 2010. A transcript of that hearing has been associated with the claims file. The Board remanded this case for further development in September 2010 and January 2013. With regard to the issue decided below, the Board finds that there has been substantial compliance with the remand directives and may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). As will be discussed below, another rating decision was issued in April 2013 in which the Appeals Management Center (AMC) in Washington, DC, granted the Veteran's claim for service connection for allergic rhinitis and assigned a disability rating of 10 percent. In September 2013, the Veteran's representative submitted a written brief to the Board in which he also claimed that the Veteran was entitled to an increased evaluation for allergic rhinitis. Such a statement could be construed as a notice of disagreement with the April 2013 rating decision. However, a statement of the case has not been issued, and the Board is required to remand, rather than refer, this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. 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 Board further notes that the issue of entitlement to an increased evaluation for the Veteran's service-connected left hand disability was referred to the Agency of Original Jurisdiction (AOJ) in the Board's September 2010 and January 2013 remands. A review of the file indicates that no action has been taken with regard to this issue. Nevertheless, as this issue is not currently on appeal, the Board does not have jurisdiction over the issue, and it is again referred to the AOJ for appropriate action. The issue of entitlement to an initial increased rating for allergic rhinitis in excess of 10 percent is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has not been shown to currently have residuals of a postnasal fracture that are related to his military service. CONCLUSION OF LAW Residuals of a postnasal fracture were not incurred in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in March 2006, prior to the initial decision on the claim in September 2006. He was also sent a letter in September 2010 after which the case was readjudicated in a supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). Therefore, with respect to the timing requirement for the notice, the Board concludes that to decide this appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the March 2006 and September 2010 notice letters about the information and evidence that is necessary to substantiate his claim for service connection and of the division of responsibilities in obtaining such evidence. The September 2010 letter also explained how disability ratings and effective dates are determined. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and all available VA medical records are associated with the claims file. The Board also notes that the Veteran requested that the RO obtain his dental records from the Portsmouth Naval Hospital. A review of the record shows that the RO did request the Veteran's inpatient and outpatient dental records from that facility in May 2007, but received a response indicating that there were no records. The Veteran again requested that the RO obtain dental records from this facility in his September 2007 VA Form 9. He suggested that the RO had obtained general medical records, but not dental records. The RO then requested inpatient medical records from the facility for the relevant time period. The Portsmouth Naval Hospital responded by producing radiology records, but notified the RO that there were no inpatient or outpatient records for the Veteran. As such, the RO has attempted to obtain all medical and dental records from the Portsmouth Naval Hospital and has associated any such existing records with the Veteran's file. Any further attempt would be futile, as the facility has affirmatively indicated that they do not have any other available records. The Board also remanded the Veteran's claim in January 2013, in part, because he had had indicated that he was treated for nasal fractures at Sentara Hospital in Norfolk, Virginia. The Board notes that the Appeals Management Center (AMC) sent an authorization form to the Veteran in January 2013 for signature so that it could obtain these records. However, the Veteran did not return a completed form, nor did he submit the records himself. Consequently, VA does not have the necessary authorization to request such records, which may have been helpful to his claim. It is ultimately a claimant's responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. 38 C.F.R. § 3.159. The Board further points out that the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, the Veteran and his representative signed and returned a waiver of the 30-day waiting period dated in April 2013 and indicated that they had no additional evidence to submit for the claim. There is no indication from the Veteran, his representative, or the claims file that there are any outstanding, available records, except for those that the Veteran has not authorized VA to obtain. The Veteran was also afforded VA examinations in April 2006 and March 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed in greater detail below, the Board finds that the March 2013 examination and medical opinion were adequate, as they were predicated on a review of the Veteran's medical history as well as on a physical examination. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The disorder at issue in this case is not listed as a chronic disease in the regulation. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for residuals of a postnasal fracture with scar. The Veteran contends that he has postnasal fracture residuals, including a scar, that were incurred in service. He testified at his May 2010 hearing that his nose was fractured during an altercation. He also told the April 2006 VA examiner that he was kicked in the face during boot camp. Radiology records from the Portsmouth Naval Hospital do show that the Veteran was seen in November 2004 for nasal fractures, which would have been during the month prior to his separation from service. A computed tomography scan (CT scan) revealed minimally displaced fractures of the right nasal bone, septum, and bilateral nasal process of the maxilla with associated soft tissue swelling. The Veteran's private doctor, Dr. D.R. (initials used to protect privacy), also noted a recent nasal fracture at an appointment in December 2004. As such, the evidence does show that the Veteran sustained an injury in service, and the remaining question is whether he has any residuals related thereto. The April 2006 VA examiner noted that the Veteran reported fracturing his nose in 2000 during bootcamp. A physical examination at that time revealed a mild deviation of the septum to the right, but there was no loss of the bone or any part of the nose. It was also noted that there was a hyperpigmented melanin line over the bridge of the nose whether the fracture occurred measuring 3.0 cm in length and .5 cm wide. However, the examiner stated that he would need to review x-rays before rendering a diagnosis. In another section of the report, the examiner listed the diagnosis as allergic rhinitis, which is already service-connected. While he did note that the Veteran's mild deviated septum and nasal obstruction were related to his nasal fracture, he further noted that there was no evidence of nasal fracture or residual after review of the Veteran's x-rays. On the other hand, the March 2013 VA examiner reviewed the Veteran's claims file and reported medical history and performed a physical examination after which she concluded that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. In so doing, she observed that the Veteran's CT scan in service showed a nasal bone deviation that was minimal within 12 hours of the accident. The current physical examination showed no left nasal septal deviation with a more than 50 percent nasal obstruction that was more likely associated with the Veteran's service-connected allergic rhinitis. The previous scar could no longer be seen, which was documented in photography done as part of the examination. The examiner specifically indicated in the findings that she was unable to locate or measure any nasal area facial scar. There was a superficial, nontender, nonadherent, left supraorbital linear scar measuring 1 centimeter by .30 centimeters, but the Veteran himself indicated that that it was not the scar associated with his nasal fracture. There was also no internal scarring of the mucus membranes in either nares. Therefore, the examiner concluded that a scar could not be related to the injury because it does not exist and no septal deviation was found. The only finding on examination was the nasal obstruction, which is already contemplated in the 10 percent rating for the Veteran's service-connected allergic rhinitis. The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). After weighing the evidence, the Board finds the March 2013 VA examiner's opinion to be most probative. There is no indication that the April 2006 VA examiner reviewed the claims file, and he specifically noted that he needed to review x-rays before he could render a diagnosis. In another section of the report, the examiner even indicated that there was no x-ray evidence of a fracture or residuals. Notably, the CT scan from November 2004 was obtained after the April 2006 VA examination, and thus, he was unable to consider the in-service findings. He further stated that the injury occurred in 2000 rather than 2004. Thus, the April 2006 VA examiner appeared to have an inaccurate or incomplete factual premise. In contrast, the March 2013 VA examiner offered her opinion based on a thorough and detailed review of all of the evidence, including the Veteran's service treatment records and post-service treatment records, and she offered a thorough rationale for the opinion reached that is clearly supported by the evidence of record. Indeed, the examiner specifically discussed the findings of the CT scan in service showing only a minimal deviated nasal septum and performed a physical examination that appears to have included a thorough evaluation of the Veteran's nose and skin. Although she did find one scar, the Veteran himself indicated that it was not from his nasal fracture in service. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). In this case, and based on the foregoing, the Board attaches the greatest probative weight to the findings and opinion of the March 2013 VA examiner who had the benefit and review of all pertinent medical records, performed a thorough physical examination, and provided a rationale supported by the record. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for residuals of a postnasal fracture with scar. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection is not warranted. ORDER Service connection for residuals of a postnasal fracture with scar is denied. REMAND In an April 2013 rating decision, the Appeals Management Center (AMC) granted the Veteran's claim for service connection for allergic rhinitis and assigned a disability rating of 10 percent effective from August 31, 2005. In September 2013, the Veteran's representative submitted a written brief that seemed to disagree with the 10 percent evaluation for allergic rhinitis. However, a statement of the case (SOC) has not been issued. Under these circumstances, a remand is necessary for the issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO/AMC should issue a statement of the case addressing the issue of entitlement to a higher initial evaluation for allergic rhinitis. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO/AMC should advise the appellant that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. The appellant 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 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs