Citation Nr: 1338878 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-15 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for lipomas of the right chest wall and right upper quadrant of the abdomen. 2. Entitlement to service connection for asthma. 3. Entitlement to an initial compensable rating for residuals of a nasal fracture, status post septoplasty. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 2004 to March 2008. This case comes to the Board of Veterans' Appeals (Board) on appeal of April and June 2009 rating decisions of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). The case is currently under the jurisdiction of the RO in Muskogee, Oklahoma. In November 2011, a travel board hearing was held before the undersigned in Muskogee, Oklahoma. A transcript of the hearing is associated with the Veteran's claims file. 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 on his part. REMAND Regarding the claims of service connection for lipomas and asthma, the evidence of record includes the Veteran's testimony that he first noted the lipomas and was first treated for asthma while he was on active duty. Review of the Veteran's service treatment records (STRs) shows that he was treated for symptoms of coughing on several occasions during service and was assessed as having bronchitis. On VA examination in February 2009, less than a year from the Veteran's discharge from active duty, the diagnoses included asthma and lipomas. At that time, there was no opinion regarding any relationship with service rendered. A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The Board finds that, given the Veteran's testimony, a VA examination to ascertain the etiology of the lipomas and asthma is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (setting forth the criteria under which VA is required to obtain an examination). Regarding the Veteran's claim for an initial compensable rating for the residuals of a nose fracture, status post septoplasty, it is noted that during the Board hearing in November 2011, the Veteran testified that his disability had worsened since the most recent VA examination in February 2009, when, he stated, that his nose had not been specifically examined. It is noted that during an examination for evaluation of sleep apnea in March 2012 it was reported that the Veteran had a left septal deviation with 80 percent obstruction. The examination report did not indicate whether the 80 percent obstruction was of the left side only, or whether it was an 80 percent total obstruction. Given the evaluation criteria for evaluation of this disability, the question is crucial and must be resolved prior to appellate consideration. 38 C.F.R. § 4.97, Diagnostic Code 6502. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records should be obtained and added to the claims folder. 2. Following completion of the above, the RO/AMC should arrange for the Veteran to undergo medical examinations to ascertain the current nature and etiology of his lipomas and asthma. The examiners should be requested to render opinions regarding whether it is at least as likely as not (probability 50 percent or more) that the lipomas or asthma is related to service. The claims folder should be made available for review in connection with each examination. The examiner should provide complete rationale for all conclusions reached. 3. Following completion of the development requested in paragraph 1, above, the RO/AMC should arrange for the Veteran to undergo a medical examination to ascertain the current nature and extent of his nasal fracture residuals. X-rays and/or other diagnostic studies should be done, as deemed appropriate by the examiner. The examiner must provide a thorough description of the appellant's service-connected disorder and render objective clinical findings concerning the severity of the disability, in accordance with the pertinent rating criteria. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 4. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). 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. 2013). _________________________________________________ BARBARA B. COPELAND 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).