Citation Nr: 1800775 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 11-06 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for an eye disorder. 2. Entitlement to service connection for a chronic sinus disorder. 3. Entitlement to service connection for nasal bleeding. 4. Entitlement to service connection for severe allergies. 5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 6. Entitlement to service connection for a sleep disorder. 7. Entitlement to service connection for congestive heart failure. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for prostate cancer. 10. Entitlement to service connection for a diabetes mellitus. 11. Entitlement to service connection for headaches. 12. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and anxiety. REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Marine Corps from September 1956 to October 1956. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over this case was subsequently transferred to the RO in Phoenix, Arizona and that office forwarded the appeal to the Board. In September 2016, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. In December 2016, the Board remanded the appeal for additional development. It is once again before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. 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 The Veteran in this case contends that a current sinus disorder is the result of nasal surgery he underwent during service and that the sinus disorder gave rise to the remaining claims. In December 2016, the Board remanded the appeal to obtain, inter alia, outstanding clinical records from the U.S. Naval Hospital in San Diego. The Board noted that service treatment records indicated that the Veteran had received treatment there but no such records were associated with the claims file. The Board directed the AOJ to contact the appropriate agency or entity to obtain all records associated with the Veteran from the U.S. Naval Hospital in San Diego from September 1956 to October 1956. The record shows that requests were directly sent to this facility in December 2016 and January 2017 but no response was received. In February 2017, a phone call to the facility was made but no one answered and although the caller left a voicemail, the phone call was not returned. The AOJ determined on this basis that further efforts to obtain these records were futile. The VA Manual observes that clinical treatment records are often not associated with a veteran's service treatment records because those facilities retain them for a certain number of years before sending them to the National Personnel Records Center (NPRC). See M21-1MR, Part III, Subpart iii, Chapter 2, Section B. In the case of treatment received at a Navy hospital, the Manual advises that such records are usually retained for about two years and then they are forwarded to the NPRC. Id. Accordingly, since no attempt to obtain these records from the NPRC has been made, the appeal must be remanded once again. In December 2016, the Board also requested an opinion as to the etiology of the sinus disorder. Specifically, the Board requested an opinion as to whether there is clear and unmistakable evidence that a sinus disorder preexisted service and whether there is clear and unmistakable evidence that a sinus disorder was not aggravated beyond its natural progression by service. The most recent opinion which addressed this question was in April 2017. While the examiner there found that there was clear and unmistakable evidence that the disorder preexisted service, he opined that "there is insufficient evidence to establish, with greater than 50 percent probability, that this [patient's] claimed condition...was permanently aggravated beyond its natural progression by military service." Again, the Board specifically requested an opinion as to (1) whether there is clear and unmistakable evidence that a sinus disorder preexisted service and (2) whether there is clear and unmistakable evidence that a sinus disorder was not aggravated beyond its natural progression by service. While this high evidentiary standard applies to both questions, the examiner only applied it to the first one. As such, an addendum opinion is required. Since the remaining appeals are predicated on the claim for service connection for a sinus disorder, adjudication of those appeals is deferred pending the development indicated below. 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 NPRC to obtain all records associated with the Veteran from the U.S. Naval Hospital in San Diego for the period from September 1956 to October 1956. 2. After associating any records obtained from #1 above or after determining that such records do not exist or that further efforts to obtain them would be futile, forward the entire claims file in electronic records and a copy of this remand to the author of the April 2017 VA opinion or other appropriate VA examiner for an addendum opinion. The examiner should indicate (1) whether there is clear and unmistakable evidence that a sinus disorder preexisted service and (2) whether there is clear and unmistakable evidence that a sinus disorder was not aggravated beyond its natural progression by service. The examiner is advised that the evidentiary standard of clear and unmistakable evidence applies to both questions. 3. After completion of the above, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. 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). _________________________________________________ GAYLE E. STROMMEN 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).