Citation Nr: 1751250 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 14-42 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a nose disorder, to include allergic rhinitis and deviated septum. 2. Entitlement to service connection for a respiratory disorder. 3. Entitlement to service connection for a psychiatric disorder. ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Army from November 1951 to December 1953. The Veteran's awards include the Combat Infantry Badge and the Korean Service Medal with 3 Bronze Stars. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The issues of entitlement to service connection for hearing loss and tinnitus have been raised by the record in a December 2012 statement (private medical opinion), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, he has a deviated septum as a result of combat service. 2. Resolving reasonable doubt in the Veteran's favor, he has sinusitis with allergic rhinitis as a result of combat service. 3. The medical and lay evidence of record does not show that the Veteran has a current respiratory disorder as a result of his military service. CONCLUSIONS OF LAW 1. A deviated septum was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). 2. Sinusitis with allergic rhinitis was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). 3. A respiratory disorder was not incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter provided in October 2012. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has provided assistance in developing the Veteran's claims. The claims file contains VA treatment records, VA examination reports, and the Veteran's statements. Attempts were made to obtain Social Security Administration records, but SSA responded that the records were no longer available. The Veteran's single service treatment record (his 1953 separation examination) is contained in the record. The remainder of his service treatment records are unavailable and were destroyed in a fire at the NPRC in St. Louis, Missouri, in 1973. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (adding that "[w]hen service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition"). Additionally, service connection may be established by the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a); 38 C.F.R. § 3.303 (a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154 (b); 38 C.F.R. § 3.304 (d). That section 1154(b) establishes an event and injury during service does not end the matter. The provision does not mean that a grant of service connection is presumed for veterans who were injured in combat. Section 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disability etiologically to the current disorder. Caluza v. Brown, 7 Vet. App. 498, 507 (1995); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Section 1154(b) does not establish entitlement to a grant of service connection for a combat veteran; rather, it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Even when the section 1154(b) combat presumptions apply, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty." Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Factual Background The Veteran argues that he warrants service connection for his "nose" condition, and that it affects his "respiration." Given the Veteran's overall statements, it appears he was seeking service connection for any nasal conditions which affected his ability to breathe through his nose. He alleged that during service his nose was fractured, and that his difficulty breathing began at that time and continued to the present. As noted above, the Veteran's service treatment records are unavailable except for his 1953 separation medical examination. The separation examination does not include a diagnosis of or an indication of nose or lung symptoms/disorders. The Veteran was noted to have scars on his forehead, left cheek, and left thumb. The record also noted the Veteran had "fainting spells, while in Korea, none now." There were no other symptoms or diagnoses listed. The earliest record post-service is from December 1954 when the Veteran was hospitalized for acute gastritis. The Veteran was afforded a VA aid and attendance examination in September 1994. He had complaints of dyspnea, frequent falls with vertigo, headache, running nose and itching nose. The diagnoses included allergic rhinitis. The examination report is fairly sparse. A separate neurological examination included the diagnosis of "episodes of dizziness, cause undetermined." An April 2011 sinus x-ray showed no significant nasal septum deviation. Minimal to mild mucosal thickening. Minimal chronic sinus disease was diagnosed. A June 2012 VA treatment record showed the Veteran sought treatment for chronic sinus infections and a refill of Flunisolide. The diagnosis was sinusitis. A September 2012 record diagnosed chronic rhinitis. He complained of pain in the nose, right nose area. He noted he had surgery in the 1950s at war. His nasal septum showed a healed scar on the right side. He was assessed with rhinitis-exacerbated, analgesics for pain. An April 2013 VA treatment record noted the Veteran had COPD status post pneumonia. He reported cough and clear sputum, without chest pain. It was noted he was last admitted in August 1997 for a nasal deviation. The VA problem list included deviated nasal septum from October 2001, chronic sinusitis from April 2001, and allergic rhinitis was from March 2005. Private physician N.A. OV, in December 2012, provided positive medical opinions regarding the Veteran's claims. She noted the Veteran had "respiratory difficulty through his right nostril; minimum quantity of air passes through it and he presents fatigue." She noted the Veteran had "an incident while at service where he received a gun shot while he had a protective cap on his head, causing him fall from the altitude he was working on, loss of consciousness, and nose fracture." The Veteran reported he had a nose deformity since then, with "respiratory problem." She noted he had surgery on his nose in 1972 to try to improve his problem, but the improvement was poor. She provided a positive nexus opinion between his current "nose problem, and respiratory problem" and his service. A January 2013 chest x-ray revealed right lower lobe infiltrate may represent atelectasis/pneumonia. A January 2014 sleep study diagnosed severe obstructive sleep apnea. A March 2014 pulmonary function test (PFT) showed there was a decrease in post-bronchodilator FEV1 from January 2014, consistent with worsening of mixed obstructive and restrictive lung disease. A September 2014 chest x-ray showed elevated left hemidiaphragm. Opacities at the left lower lobe may be related to atelectasis or developing airspace disease and/or small pleural effusion. In August 2017, the Veteran was afforded a sinusitis, rhinitis, and nose deformities examination. The examiner diagnosed allergic rhinitis and deviated nasal septum. The Veteran reported he suffered a nose fracture injury in service. Roughly 20 years later, he underwent surgery on his nose, and he stated that he has been "suffering from nasal respiratory since service," which has worsened over the years. March 2017 x-rays of the Veteran's sinuses showed no significant variation of the nasal septum, but did reveal significant enlargement of the intranasal soft tissues. The examiner noted there was evidence of chronic rhinitis on examination. The examiner provided a negative nexus opinion. The Veteran's complaints of "nasal traumatic fracture is less likely as not caused by or a result of separation examination forehead scar as there is no relationship with nasal complains neither evidence of scar on nose on separation examination." The examiner noted that the Veteran's treatment records had been destroyed, but that he reported falling after being shot and breaking his nose, but the separation examination only noted a mid-forehead scar and did not discuss the scar's origin. Also in August 2017, the Veteran was afforded a respiratory examination. The examiner erroneously noted that the Veteran had never been diagnosed with a respiratory condition. However, the Veteran denied a history of a respiratory condition while on service except for his nose respiratory problems. Deviated Septum The Veteran argues that he suffered a broken nose during combat service after he was shot in the helmet and knocked to the ground. His service treatment records are unavailable except for his separation examination. His separation examination includes that the Veteran had scars on his forehead and cheek. VA treatment records include the diagnosis of a deviated septum, and the Veteran has reported that he had surgery on his nose for his deviated septum in the 1970s. Those records are unavailable, but the Veteran his competent to report a prior surgery, and treatment records include that the Veteran has a scar on his right nostril. The 2017 examiner provided a negative nexus opinion because the Veteran's deviated septum was not listed on his separation examination. However, the Board finds that the evidence of facial scars fits with the Veteran's history of injury during combat and will provide the Veteran the benefit of the doubt. As such, entitlement to service connection for a deviated septum is warranted. Sinusitis/allergic rhinitis As stated in the preceding paragraphs, the Board finds the Veteran's report of an injury to his nose in service as credible. The record contains a positive nexus opinion between the Veteran's "nose respiratory" conditions and service in a 2012 private medical opinion. Notably, the 2017 VA examination was inadequate as it did not specifically provide a medical opinion for the Veteran's diagnosed allergic rhinitis, nor did it address his chronic sinusitis that was diagnosed in his VA treatment records. As such, the Board will apply the private medical opinion of a positive nexus between his "nose respiratory" conditions to the specific diagnoses in the record of allergic rhinitis and chronic sinusitis. As such, entitlement to service connection for sinusitis with allergic rhinitis is warranted. Respiratory The Board notes that the August 2017 VA examination was not adequate in that it did not address the respiratory diagnoses the Veteran had in his VA treatment records. VA treatment records indicated a diagnosis of COPD, obstructive sleep apnea, and noted that his PFTs showed restrictive and obstructive lung disease, without further elaboration on a diagnosis. Generally, once VA decides to provide a VA examination, it must then ensure that the examination is adequate before a decision can be made. However, in this instance, the Board will not remand for an additional examination because the Veteran has denied that he had a lung disorder or symptoms in service, or otherwise provided a statement that he has a pulmonary-respiratory disorder related to his service. Essentially, the Veteran was seeking service connection for his nasal conditions which resulted in a decreased ability to breathe through his nose. The Veteran and his 2012 private physician then referred to these issues as "respiratory" in that they related to his ability to breathe through his nose. Prior to elaboration from the Veteran, VA had separated his claim into one for a nose condition and one for a respiratory condition (meaning pulmonary). Although the Veteran has a "current disability" of pulmonary/respiratory disorders since he filed his claim (COPD, OSA, and episodes of pneumonia), he has denied that he had any respiratory/pulmonary disorders in service. As the record does not contain any service treatment records and the Veteran's denies any in-service respiratory/pulmonary symptoms, the second ("in-service incurrent or aggravation of an injury or disease"), and third ("a nexus, or link, between a current disability and an in-service disease or injury") prongs of a service connection claim are not fulfilled. As such, entitlement to service connection for a respiratory disorder is not warranted. For the Veteran's respiratory/pulmonary claim, the medical and lay evidence are against the claim. Accordingly, the benefit-of-the-doubt rule does not. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a deviated septum is granted. Entitlement to service connection for chronic sinusitis with allergic rhinitis is granted. REMAND In May 2016, the Veteran was afforded an initial PTSD examination. The examiner found that the Veteran did not meet the requirements for a diagnosis of PTSD or any other psychiatric disorder, under the DSM-V. Notably, the Veteran met Criterion A (stressor) for PTSD, but did not meet the criteria related to ongoing symptoms in order to warranted a diagnosis of PTSD. The Board, however, finds that the examination is inadequate as it provides little detail regarding the interview that took place. The examiner simply indicated "no response provided" under criteria B through F. The remarks section listed the criteria the Veteran did not meet, but only elaborated by saying the Veteran lived a "successful marital, parenting, social, and retired life." And that he was able to work for 26 years before retiring. Additionally, the Board notes that after the May 2016 VA examination, the Veteran was given the provisional diagnoses of depressive disorder and adjustment disorder in June 2016 (and December 2016/January 2017). The provisional diagnoses were given by a VA social worker, and the Veteran was provided medication by a VA psychiatrist. It does not appear that he was provided a formal psychiatric diagnosis. Although these diagnoses were provided following the death of his wife, they represent a possible current psychiatric disability. On remand, ongoing treatment records must be obtained and the Veteran must be afforded an additional VA examination. The Board notes that the 2012 positive medical opinion provided by the Veteran's private physician did not list a diagnosis. As the VA treatment records only contain a provisional diagnosis and the 2012 private physician and 2017 VA examiner did not provide a psychiatric diagnosis, the Board must remand for additional development. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate ongoing VA treatment records with the electronic claims file. 2. Schedule the Veteran for a VA psychiatric evaluation. After a review of the record and interview of the Veteran, the examiner should: a. List any/all diagnosed psychiatric disorders. In providing this list, address the provisional diagnoses provided in 2016 and 2017. b. For each diagnosed psychiatric disorder, is it at least as likely as not (50/50 probability or greater) that the psychiatric disorder is a result of the Veteran's military service? With regard to PTSD, the examiner should assume combat stressors the Veteran reports are accurate. c. complete explanation/rationale must be provided for each opinion expressed. 3. After the above is complete, readjudicate the Veteran's claim. If the claim remain denied, issue a supplemental statement of the case (SSOC). The Veteran and his representative should be given an opportunity to respond, before the case is returned to the Board. The Veteran and his representative have 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). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs