Citation Nr: 1604854 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 12-30 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for deviated septum. 2. Entitlement to service connection for carpal tunnel syndrome of the right wrist. 3. Entitlement to service connection for carpal tunnel syndrome of the left wrist. 4. Entitlement to service connection for a heart disorder. 5. Entitlement to an initial compensable evaluation for hypertension. 6. Entitlement to an initial compensable evaluation for gastroesophageal reflux disorder (GERD) with gallbladder disease. 7. Entitlement to service connection for pseudofolliculitis barbae. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to October 1987 and from January 1989 to March 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2010 and August 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Board notes that the AOJ initially deemed the Veteran's June 2011 notice of disagreement (NOD) to be untimely and instead accepted it as a new claim for benefits. However, in a May 2012 rating decision, the AOJ reversed that decision based on a finding of clear and unmistakable error. Therefore, the NOD was timely and this appeal properly stems from the June 2010 rating decision. A Board hearing was scheduled in October 2015; however, the Board received notification of cancellation that same month. Therefore, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2015). In the Veteran's November 2015 and December 2015 appellate briefs, the Veteran included argument on entitlement to service connection for hypertensive retinopathy and entitlement to an increased evaluation for hypertensive heart disease. Although a statement of the case (SOC) was issued on these issues in March 2014, the Veteran did not submit a substantive appeal. Therefore, those issues are not before the Board. The issue of entitlement to service connection for a right shoulder disorder has been raised by the record in a June 2014 statement, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2015). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The issues of entitlement to service connection for carpal tunnel syndrome of the right wrist, carpal tunnel syndrome of the left wrist, service connection for a heart condition with murmur, pseudofolliculitis barbae, a heart disorder with murmur, an initial compensable evaluation for hypertension, and an initial compensable evaluation for GERD with gallbladder disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has a deviated nasal septum that was incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for deviated septum are approximated. 38 U.S.C.A. § 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Given the fully favorable disposition of this matter, the Board finds that that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a deviated septum that was incurred during service. Service treatment records show that he was noted to have intermittent nasal obstruction and a deviated septum in 1988. In a March 2010 VA examination report, the examiner noted a slight convex deviation of the nasal septum to the right. The diagnosis was deviated septum. An August 2014 VA examination showed deviated nasal septum, mild with intermittent sinusitis. The examiner opined that it was as least as likely as not incurred in the service because it is documented in the service treatment records. The record shows an in-service diagnosis of deviated septum that has existed since that time without evidence of any intercurrent injury. Accordingly, the Board finds that service connection for a deviated nasal septum is granted. ORDER Service connection for a deviated septum is granted. REMAND The issues of entitlement to service connection for carpal tunnel syndrome of the right wrist, carpal tunnel syndrome of the left wrist, an initial compensable evaluation for hypertension, and an initial compensable evaluation for gastroesophageal reflux disorder (GERD) with gallbladder disease are remanded to determine if there are relevant private treatment records that have not been associated with the claims file. In the August 2014 VA examination reports related to each of the issues on appeal, the examiner indicated that he reviewed "faxed records from private physicians." The claims file does not contain private records indicating that they were transmitted by fax. Therefore, remand is necessary to seek clarification regarding these records and to obtain them, if necessary. The issue of service connection for a heart disorder with murmur must be remanded for a clarifying opinion. In the August 2014 VA exam, the examiner opined that the Veteran has a benign heart murmur that was noted in service and an essentially negative echocardiogram and CT angiogram. The examiner then found no chronic issues. The Board finds this opinion to be conflicting as the examiner noted both a murmur and no chronic issues. Therefore, a clarifying opinion is necessary to opine as to whether the Veteran's murmur constitutes a disability for VA purposes. The issue of entitlement to service connection for pseudofolliculitis barbae must be remanded for the issuance of an SOC. The Veteran disagreed with the June 2010 rating decision in his June 2011 notice of disagreement; however, the AOJ did not include this issue in the August 2012 statement of the case. Where the record contains a notice of disagreement as to an issue, but no SOC, the issue must be remanded to the originating agency to issue a SOC and to provide the claimant an opportunity to perfect the appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an SOC concerning his claim for service connection for pseudofolliculitis barbae. Advise him that he still needs to file a timely substantive appeal in response to the SOC to perfect an appeal to the Board concerning this claim. 38 C.F.R. §§ 20.200, 20.302(b) (2015). Also advise him of the time limit for perfecting the appeal of this claim. Only if he perfects an appeal of this additional claim should it be returned to the Board for further consideration. 2. Return the claims file to the August 2014 examiner and request the examiner to identify with specificity the "faxed records from private physicians" as referred to in his examination report. Once the records are identified, the AOJ shall confirm that the records are associated with the claims file. 3. If the August 2014 examiner is unavailable or if the examiner is unable to provide clarification, contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant private medical records. Subsequently, and after securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. If any additional relevant records are received pursuant to the above request, determine if new VA examinations are necessary and, if so, afford the Veteran VA examinations and opinions to determine whether he has bilateral carpal tunnel syndrome as due to service and to assess the severity of his service-connected hypertension and GERD with gallbladder disease. 5. After any additional records are associated with the claims file, obtain a clarifying opinion from the August 2014 VA examiner, or a suitable alternative, as to whether the Veteran's heart murmur constitutes a current disability for VA purposes. The claims file must be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Review each examination or opinion report to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). 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 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs