Citation Nr: 1612039 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 11-02 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco Texas THE ISSUES 1. Entitlement to service connection for pulmonary condition, including residuals of pneumonia, bronchitis, and chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for sinus disorder, including sinusitis and rhinitis. 3. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to January 28, 2014, and in excess of 50 percent from January 28, 2014 forward. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service from March 1956 to July 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2010 and October 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The May 2010 decision denied the Veteran service connection for pneumonia, bronchitis, and sinusitis, as well as PTSD. Following consideration of subsequent evidence, the RO granted the Veteran's PTSD claim in a December 2010 decision, and awarded an initial rating of 30 percent. In May 2011, the Veteran submitted a claim for an increase of his rating for PTSD, which the Board construes as a Notice of Disagreement. The Board is characterizing the issue as a one for a higher initial rating. The Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board via video-conference in July 2013. A transcript of that hearing has been associated with the claims file. An April 2014 rating decision increased the rating for PTSD from 30 percent disabling to 50 percent, effective January 28, 2014. The issues of entitlement to entitlement to service connection for a pulmonary condition, including residuals of pneumonia, bronchitis, and COPD, and entitlement to an increased rating for PTSD 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's allergic rhinitis at least as likely as not had its onset during active service. CONCLUSION OF LAW The criteria for service connection for allergic rhinitis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection for a Sinus Disorder Service connection means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (west 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). The Veteran has a current diagnosis of allergic rhinitis. In October 2012, Hamal Mubarak, M.D. stated that the Veteran had been his patient since May 2002 and that over the years he had treated him for sinusitis, allergic sinusitis, and allergic rhinitis. However, on VA examination in May 2012 the examiner concluded that the Veteran did not have sinusitis. This finding was based upon a thorough examination of the Veteran and an April 2012 computed tomography (CT) of the sinuses which showed that the frontal, ethmoid, sphenoid, and maxillary sinuses were clear, with no significant paranasal sinus disease shown. The VA examiner stated that the Veteran's history, examination, and normal CT provided clear and convincing that evidence that chronic sinusitis was not present. While the October 2012 examination report provided by Dr. Mubarak noted that he had treated the Veteran for sinusitis in the past, there were no actual findings of sinusitis on that examination. Therefore, the most probative evidence of record, consisting of the May 2012 VA examination report, shows that the Veteran does not have sinusitis. During service, the Veteran was treated for sinus problems. While the May 2012 VA sinus examiner concluded that it was less likely than not that the Veteran's chronic allergic rhinitis was related to service, another VA examiner stated that there was greater than a 50 percent probability that the Veteran's allergic rhinitis was related to service. See VA examiners' opinions, dated April 5, 2014 and April 8, 2014. Therefore, resolving doubt in the Veteran's favor, the Board finds that service connection for allergic rhinitis is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for allergic rhinitis is granted. REMAND In December 2013, the Board remanded the above claims, in part, for treatment records from Tricare. The RO sent a development letter in January 2014 requesting the addresses, approximate dates of treatment, and phone numbers to obtain the Veteran's treatment records and to complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for each health care provider. Although the Veteran did not respond, the Board reminds the RO that Tricare is a government program (Defense Health Agency) and the VA is obligated to make every effort to obtain them in accordance with M21-1MR, Part III, Subpart iii, 2.I.59 & 38 CFR 3.159(e). Retired Veterans can enroll in "Tricare for Life" as well as Medicare. The Veteran testified that he receives treatment for his PTSD from Tricare and Denton VA. (See Hearing Transcript p. 6). On remand, the RO must make every effort to obtain the Tricare records. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete VA treatment records, dated since January 2014. 2. Make arrangements to obtain the Veteran's complete treatment records from Tricare, dated since July 1980. See 38 C.F.R. § 3.159(c)(2) (Obtaining records in the possession of a Federal department or agency). 3. After the above records have been obtained, review the claims folder and make a determination as to whether additional VA examinations and/or opinions are required concerning the claims for service connection for a pulmonary disorder and an increased rating for PTSD. If so, schedule the Veteran for appropriate VA examinations. 4. Finally, readjudicate the claims on appeal. If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals