Citation Nr: 1605766	
Decision Date: 02/16/16    Archive Date: 03/01/16

DOCKET NO.  12-30 917	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for the residuals of a broken nose.

2.  Entitlement to service connection for diabetic retinopathy.

3.  Entitlement to service connection for chloracne.

4.  Entitlement to an initial rating higher than 60 percent for coronary artery disease (CAD).

5.  Entitlement to an initial compensable rating for penile deformity with erectile dysfunction.

The Veteran's claims regarding entitlement to service connection for skin cancers of the right bicep and scrotum and entitlement to special monthly compensation (SMC) for loss of use of the legs will be addressed in a separate decision.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Gibson


INTRODUCTION

The Veteran served on active duty from May 1968 to December 1969, with additional periods of active duty for training.

This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2015, the Veteran had a personal hearing before the undersigned VLJ, which covered the issues addressed in this Decision and Remand, as well as the issues of service connection for skin cancers of the right bicep and scrotum and SMC for loss of use of the bilateral legs.  These last three issues were also subject to a hearing before a different VLJ in May 2010.  Because two VLJs have considered evidence in those claims, the Veteran is entitled to a panel decision and another hearing with the third member of the panel before the claims are adjudicated.  Arneson v. Shinseki, 24 Vet. App. 379 (2011).  He will be notified of his rights regarding these three claims by separate letter.

The issue of entitlement to an increased rating for hearing loss was raised by the Veteran during his November 2015 hearing, but 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.  38 C.F.R. § 19.9(b) (2015). 

In this decision, the Board is granting service connection for the residuals of a broken nose.  The remaining issues required additional treatment and are REMANDED to the AOJ.


FINDING OF FACT

The Veteran's residuals of a broken nose and subsequent septoplasty are a result of an injury sustained in combat.


CONCLUSION OF LAW

The criteria are met for service connection for the residuals of a broken nose and subsequent septoplasty.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015); Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015).  Service connection may also be granted for a disease diagnosed after discharge, where all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2015).
In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, satisfactory evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).

A combat veteran may invoke the section 1154(b) presumption to show both that an event that allegedly caused disability occurred in service and that the claimed disability itself was incurred in service.  Reeves v. Shinseki, 682 F.3d 988, 999   (Fed. Cir. 2012).

The Veteran alleges he broke his nose when a 155 Howitzer fell on him during combat operations in August 1969.  The record contains a number of Buddy statements indicating the 155 Howitzer fell while he and other soldiers were firing rounds in support of infantry, and that the Veteran refused to seek medical care after the incident.  The Veteran is in receipt of the Bronze Star Medal with V, which shows he engaged in combat with the enemy.  As this injury conforms to the circumstances, conditions, and hardships of such service, the Board finds he has established that it occurred while in service.

The record shows the Veteran underwent a septoplasty in 1990 for his deviated septum.  He continues to have symptoms as a result of his broken nose.  He has not been provided a VA examination, but his contentions are consistent with his combat service.  38 U.S.C.A. § 1154(b).  Accordingly, VA must presume the occurrence of the in-service injuries.  Further, the Board finds that he is competent to report his resulting symptoms since the combat injury, and also that his account of having pain since that time is credible.  There are no opinions addressing a relationship to service; thus, the Board finds that the evidence is insufficient to rebut the presumption that his broken nose and subsequent residuals of a septoplasty became manifest due to his combat service.  See Reeves.  Service connection is therefore warranted for the residuals of a broken nose and subsequent septoplasty.

ORDER

Service connection is granted for the residuals of a broken nose and subsequent septoplasty.


REMAND

The Veteran's remaining claims require additional development.

In regard to diabetic retinopathy, the record does not contain a diagnosis.  The Veteran reported that he was meeting with his VA physician on or around November 23, 2015, to address this issue.  This record must be located.  In any event, a medical opinion should be obtained that addresses conflicting evidence.  The bulk of his records show no retinopathy; however, a June 2010 VA treatment records suggests a diagnostic test showed results suggesting retinopathy.  On remand, this must be addressed.

In regard to chloracne, the record is not clear as to whether he has been diagnosed with it during the relevant appeal period.  A 2004 VA treatment record shows a history of chloracne, but 2005 and 2006 VA treatment records say it had burnt out and was not present.  He has been treated for "other" acne fairly consistently since that time.  On remand, a medical opinion must be obtained as to whether he has it now or any time during the appeal period, and if so, whether it is related to service.

In regard to CAD, the Veteran has alleged an increase in severity, thus an updated examination should be obtained.

In regard to erectile dysfunction due to penile deformity, the VA examinations on record do not adequately address whether he has a deformity.  The August 2012 VA examination report indicated the Veteran declined examination of the penis, which he has denied in a September 2012 statement.  The Veteran and his wife both allege deformity due to scar tissue.  His records show suggest deformity, in that the base of his penis is slightly larger and flatter at the base when inflated.  His records also show some urological symptoms, including a urinary tract infection some dribbling in 2006, which should be addressed. 

No updated treatment records have been associated with the claims files since 2012.  Accordingly, a complete set of VA treatment must be associated with the file, as well as any relevant private treatment.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify all treatment he has had for his diabetes, eyes, skin, chloracne, heart, penile implant, and urological symptoms.  Make arrangements to obtain all records not already associated with the claims file.

Specifically, ensure that VA diabetic and/or optic records from the week of November 23, 2015, are associated with the claims file.  

2.  After receipt of records, schedule the Veteran for an appropriate examination for an opinion on whether the Veteran has diabetic retinopathy.  His records through August 2012 show no retinopathy, however, a June 2010 record seemed to suggest that DM digital or DM dilated funduscopic examination showed retinopathy.  The examiner is asked to provide an opinion on whether diabetic retinopathy is present or has been present at any time during the appeal period.  All opinions are to be supported with explanatory rationale.

3.  Schedule the Veteran for an appropriate examination for an opinion on whether he has chloracne.  His records show a history of chloracne listed in 2004, but that it was burnt out and there were no signs of it in 2005 and 2006.  He has been treated for "other" acne with a topical cream.  The examiner is asked whether he has had chloracne at any time during the relevant appeal period, and if so, to provide an opinion on whether it is as likely as not (50 percent or greater probability) that it is related to herbicide exposure in Vietnam.  All opinions are to be supported with explanatory rationale.

4.  Schedule the Veteran for an appropriate examination for a report on the current severity of coronary artery disease.  All appropriate testing should be conducted.

The examiner is asked whether the Veteran has chronic congestive heart failure; or, a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent?

All opinions are to be supported with explanatory rationale.

5.  Schedule the Veteran for an appropriate examination for an opinion on whether the Veteran has a deformity of the penis.  The Veteran alleges a deformity due to excess scar tissue as a result of numerous penile pump implants.  All opinions are to be supported by explanatory rationale.

Further, the record shows urological symptoms, including urinary tract infection in 2006, and slow urination (dribbling).  The examiner is asked to conduct a urological examination and provide an opinion on whether it is as likely as not (50 percent or greater probability) that any of his symptoms are caused or aggravated (permanently increased in severity beyond normal progression) by his penile implants.
All opinions are to be supported by explanatory rationale.

6.  Following completion of the above directive, review the claims file to ensure compliance with this remand.  If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action.

7.  Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal.  If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response.  Thereafter, return the file to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the 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).




______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs