Citation Nr: 1756689 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-03 789 ) 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 allergic rhinitis, to include nasal polyps. 2. Entitlement to service connection for a sinus disorder. 3. Entitlement to service connection for an acquired psychiatric disorder (claimed as major depressive disorder). 4. Entitlement to a total disability based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1957 to May 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board denied each of these claims in a decision of June 2015. The Veteran perfected an appeal to the Court of Appeals for Veterans Claims (Court). The parties filed into a Joint Motion for Remand (Joint Motion) which was granted by the Court in September 2017. The Joint Motion signed by the Court vacated and remanded each of the Veteran's claims for appropriate action by the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND I. Rhinitis and Sinus Disorder In denying claims for rhinitis and a sinus disorder, the Board relied in part on a July 2016 VA examination. That VA examiner opined that the Veteran's rhinitis and sinus disorder were less likely than not related to service because service medical records did not show "diagnosis or treatment of sinusitis or allergic rhinitis" and were "silent for a nasal injury by being struck in the nose with a rifle during service." In its decision, however, the Board found that "the scar on the Veteran's nose substantiates that he was hit in the nose with a rifle during service []" and thus "an in-service injury has been presumed." Accordingly, the July 2016 VA examiner's opinion is based on the inaccurate factual premise that the Veteran did not suffer an in-service nose injury, and the Board erred in relying on it. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). There is also some question as to whether or not VA has fulfilled its duty to assist the Veteran in in obtaining evidence necessary to substantiate his claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As the Veteran's records were found to be fire related, VA has a heightened duty to assist the Veteran in developing a claim and to explain its findings and conclusions. See Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Veteran's December 2011 application for compensation listed his conditions as beginning October 10, 1957 but did not put an end date. In a December 2013 letter to the Veteran VA requested clarification of the month and year of any military treatment. The Veteran did not respond to this letter and VA did not perform a thorough search for any records not destroyed by fire. The Veteran also stated that he had undergone surgery on his nose around 1974 in San Juan at the Veterans hospital. A VA form 10-7131 from March 1970 refers to the same surgery. The earliest records from San Juan VA medical center obtained by VA are from 2005. A VA form 21-6789 from November 2013 notes that a negative reply was received for "VA treatment records SJ and NJ." However, the record does not contain a request for earlier San Juan VAMC records, nor any response to such a request. A remand is necessary to either conduct a thorough search for outstanding records or properly explain why such a search is not required. A remand is also necessary to either produce the missing request for pre-2005 San Juan VAMC records and the related negative response or to make a new attempt to obtain those records. Finally, a remand is warranted to obtain a new VA opinion, based on accurate factual premises, that addresses whether the Veteran's in-service nose injury is related to his rhinitis or sinus disorder. II. Acquired Psychiatric Disorder In January 2012, the Veteran was diagnosed with depressive disorder, NOS by a VA provider. Based on his belief that his depression was caused by service, the Veteran filed a claim for service connection for major depressive disorder. A July 2016 VA examiner, however, diagnosed the Veteran with a neurocognitive disorder with depressive symptoms, stating that the Veteran's symptoms did not fit the DSM-5 criteria for depressive disorder. Instead of then opining as to whether or not this condition was related to service, the examiner stated that they could not offer an etiological opinion related to depression because the Veteran did not fit that diagnosis at the time of the exam. In its December 2016 decision, the Board relied on the lack of a positive nexus opinion to deny service connection for major depressive disorder. Given the presence of a diagnosis during the period on appeal, as well as the Board's earlier concession of the Veteran's diagnosis, a remand is necessary to either provide a new VA examination or explain why the July 2016 examination report is sufficient on its own. III. TDIU The Veteran's request for TDIU is inextricably intertwined with his claims for service connection being remanded herein and, therefore, must be remanded as well. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (explaining that matters are inextricably intertwined where a decision on one issue would have a "'significant impact' upon another, and that impact in turn 'could render any review by this Court . . . meaningless and a waste of judicial resources'") (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)); see also June 2015 Board remand decision (finding that Veteran's "claim for a TDIU is inextricably intertwined with the claims for service connection"). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and again request that he provide a specific month and year of any military medical treatment for his rhinitis and sinus disorder. Then: A. If the Veteran responds with sufficiently specific information, conduct an appropriate search for any surviving relevant records during the time periods provided by the Veteran. If any records are obtained, associate them with the claims file. B. If the Veteran fails to provide sufficiently specific information, determine whether or not an appropriate search can be conducted based on the Veteran's statement that his conditions began October 10, 1957. If a search can be conducted, do so. If it such a search cannot be conducted, provide a written explanation as to why it cannot be conducted. Associate any records or explanation with the claims file. 2. Locate and associate with the claims file the negative response from San Juan VA Medical Centre referenced in the VA form 21-6789 from November 2013. A. If this response cannot be located, attempt to obtain records from any appropriate repository regarding the Veteran's VA treatment in San Juan before 2005. Specifically seek records related to his nose surgery in the 1970s. B. Document all attempts and responses. Any records obtained should be associated with the claims file. 3. Arrange to have the Veteran scheduled for an appropriate VA examination to determine the nature and etiology of the Veteran's psychiatric disorders. The claims file should be made available for review. The examiner should clearly identify all current psychiatric disability(ies) as well as any previous diagnoses that have been active during the period on appeal. Then, with respect to each such current and previously diagnosed disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by service. The examiner should specifically discuss: i. The diagnosis of depressive disorder, NOS, given by a VA doctor in January 2012. ii. The diagnosis of neurocognitive disorder with depressive symptoms, given by a VA examiner in July 2016. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 4. Readjudicate each of the Veteran's claims. 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). 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). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).