Citation Nr: 1803535 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 15-24 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a sinus condition, to include as secondary to service-connected deviated septum. 2. Entitlement to service connection for a sinus condition, to include as secondary to service-connected deviated septum. 3. Entitlement to service connection for residuals of a left eardrum rupture. 4. Entitlement to service connection for a right foot disability, including secondary to a left foot disability. 5. Entitlement to service connection for a right leg disability, including as secondary to a left leg disability. 6. Entitlement to compensation for a left leg disability under the provisions of 38 U.S.C. § 1151. 7. Entitlement to compensation for multiple-joint arthritis under the provisions of 38 U.S.C. § 1151. 8. Entitlement to compensation for a left foot disability under the provisions of 38 U.S.C. § 1151. 9. Entitlement to compensation for a right hand disability under the provisions of 38 U.S.C. § 1151. 10. Entitlement to compensation for the residuals of broken ribs under the provisions of 38 U.S.C. § 1151. 11. Entitlement to compensation for a left eye disability under the provisions of 38 U.S.C. § 1151. 12. Entitlement to compensation for residuals of a left jaw fracture under the provisions of 38 U.S.C. § 1151. 13. Entitlement to compensation for residuals of a left-side facial fracture under the provisions of 38 U.S.C. § 1151. 14. Entitlement to compensation for a chin scar, also a residual of injury, under the provisions of 38 U.S.C. § 1151. 15. Entitlement to compensation for a left knee disability under the provisions of 38 U.S.C. § 1151. 16. Entitlement to a total disability rating based on individual unemployability (TDIU). (The issue of entitlement to an increased rating for postoperative residuals of a deviated nasal septum is addressed in a separate decision.) REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL Veteran and B.H. ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had active military service from October 1953 to October 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2010, the Veteran appeared before Veterans Law Judge (VLJ) Keith Allen and presented testimony addressing a claim for service connection for left index finger and left hand disabilities. He also presented testimony in support of each claim listed above, as well as for claims for service connection for posttraumatic stress disorder (PTSD) and postoperative residuals of a deviated nasal septum. A transcript of the hearing has been associated with the electronic claims file. In October 2010, the Board denied service connection for the left index finger and left hand disabilities and remanded the claims listed above, as well as claims for service connection for PTSD and postoperative residuals of a deviated nasal septum, for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). In June 2015, the RO issued a rating decision granting service connection for PTSD and postoperative residuals of a deviated nasal septum, which constituted a full grant of these claims. The RO also issued a SOC for the issues listed above and in July 2015, the Veteran submitted a timely VA Form 9 to perfect his appeal. In July 2016, the Veteran perfected an appeal of the initial rating assigned in June 2015 for postoperative residuals of a deviated nasal septum. In July 2017, the Veteran appeared before VLJ Lana Jeng and provided testimony in support of each of the claims listed above. He also provided testimony in support of his claim for an increased rating for postoperative residuals of a deviated nasal septum. A transcript of the hearing has been associated with the electronic claims file. A VLJ who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a) (2012). Thus, when a veteran has had a personal hearing before two separate VLJs during the appeal and these hearings covered a common issue, as they have in this case, a third VLJ is assigned to the panel after the second Board hearing has been held. The United States Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that a veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Thus, in a November 2017 letter, the Veteran was offered the opportunity for a third hearing before a third VLJ. However, in a November 2017 response, the Veteran declined to appear at a third hearing. Thus, no further hearing will be conducted for the issues on appeal. Regarding the claim for an increased rating for postoperative residuals of a deviated nasal septum, the Veteran testified before VLJ Allen regarding the matter of service connection. When the RO granted service connection, that appeal was fully satisfied. The Veteran started a new appeal contesting the ratings assigned for postoperative residuals of a deviated nasal septum and he testified about this issue only before VLJ Jeng. As such, this issue is addressed in a separate Board decision. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a sinus condition and left eardrum rupture and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In January 2008, the RO denied service connection for a sinus condition; the Veteran did not appeal the rating decision or submit new and material evidence within the one year period. 2. Since January 2008, the Veteran has presented evidence that is both new and material to his claim for service connection for a sinus condition. 3. The Veteran does not have a right foot or right leg disability as a result of service or that is due to or aggravated by a service-connected disability. 4. The Veteran's airplane accident causing left leg disability, arthritis of multiple joints, left foot disability, right hand disability, residuals of broken ribs, left eye disability, residuals of a left jaw fracture, left-side facial fracture, chin scar, and left knee disability, did not occur while the Veteran was participating in training, services, or a compensated work therapy program provided or authorized by VA as part of an approved rehabilitation program under 38 U.S.C. chapter 31 or 38 U.S.C. 1718. CONCLUSIONS OF LAW 1. The January 2008 rating decision that denied service connection for a sinus condition is final. 38 U.S.C. § 7105(c) (200); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2007). 2. New and material evidence has been presented to reopen the claim of service connection for a sinus condition. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156 (2017). 3. The criteria for service connection for a right foot disability, including secondary to a left foot disability, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for a right leg disability, including as secondary to a left leg disability, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for entitlement to benefits under 38 U.S.C. § 1151 for left leg disability, arthritis of multiple joints, left foot disability, right hand disability, residuals of broken ribs, left eye disability, residuals of a left jaw fracture, left-side facial fracture, chin scar, and left knee disability have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The duty to notify was satisfied by way of letters sent to the Veteran in July 2008, February 2009, June 2009, and March 2010 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters informed the Veteran of the evidence required to substantiate the claims and of his and VA's respective duties for obtaining evidence. All necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and identified private treatment records. The Veteran submitted lay statements, witness statements, medical records, and other evidence in support of his claims such as news articles, flight logs, and receipts. The Veteran and his spouse also had the opportunity to set forth their contentions during the hearings before VLJ Allen and VLJ Jeng. The RO official or VLJ who conducts a hearing must fulfill two duties. See 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. 488; 38 C.F.R. § 3.103 (c)(2) (2017). This was done during both Board hearings as the VLJs noted the issues on appeal, asked questions, and elicited information that indicated what information and evidence was necessary to prove the claims. Additionally, to the extent possible, VA obtained the relevant evidence and information needed to adjudicate these claims. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conducting of the Board hearings. The Veteran was not afforded VA medical examinations for his 38 U.S.C. § 1151 claims as his claims are denied herein as a matter of law. He also was not provided examinations for the right foot or right leg disabilities as the evidence does not show that his claimed disabilities may be related to service or to any service-connected disability. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In January 2008, the RO denied service connection for a sinus condition because the Veteran did not provide evidence of a current disability. The Veteran did not submit a notice of disagreement or provide new and material evidence within one year of the rating decision; therefore the decision became final. Since January 2008, the Veteran has provided evidence showing diagnosis and treatment of sinus conditions such as chronic rhinitis and sinusitis. Accordingly, the Board finds that the evidence is new and material to the claim and that the claim is reopened for consideration on the merits. To this extent, the appeal is granted. As discussed in the remand section below, additional development is necessary before the Board can adjudicate entitlement to service connection. III. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) medical, or other competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical or other competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, the Veteran seeks service connection for a right foot disability, as secondary to a left foot disability, and a right leg disability, as secondary to a left leg disability. See Correspondence, March 25, 2010. As noted above, for service connection, there must be a current disability. In this case, the treatment records do not show a diagnosis of the right foot or right leg. Treatment records show complaints of bilateral foot pain and the Veteran's lay statements indicate that he has right foot and right leg pain. See Correspondence received January 4, 2010, dated December 21, 2009. VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Regarding the Veteran's lay statements, the Board notes that as a general matter, a layperson is not competent to provide evidence as to complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See 38 C.F.R. § 3.159(a)(2); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Routen v. Brown, 10 Vet. App. 183, 186 (1997). In this case, the Veteran does not have the requisite medical expertise to identify the underlying cause and etiology of his right foot or right leg pain, as these matters are not readily observed by laypersons. Consequently, the Veteran's statements are not sufficient to find that he has a current right foot or leg disability for compensation purposes. The Board points out that there is no evidence that the reported right leg and right foot pain are related to service or that it has been continuous since service. The service treatment records are silent for complaints or treatment related to the right lower extremity and the clinical examination at separation from service was normal. More importantly, the Veteran does not allege a direct relationship between his right leg and right foot pain and service. The Veteran claims that his pain is due to left foot and left leg injuries he sustained during an airplane accident in 1960. See Correspondence received January 4, 2010, dated December 21, 2009. However, the Veteran is not service-connected for the left foot or left leg and as discussed below, compensation for these injuries under 38 U.S.C. § 1151 is not warranted. As such, even if the Board considers the symptom of pain as a disability, service connection is not warranted on a direct basis and cannot be granted on a secondary basis. Based on the foregoing, the Board finds that the preponderance of the competent evidence weighs against a finding that the Veteran has a current disability of the right leg and right foot for VA purposes. The benefit of the doubt rule is not applicable and the claims are denied. IV. Compensation under 38 U.S.C. § 1151 The Veteran claims that he is entitled to compensation under 38 U.S.C. § 1151 for a left leg disability, arthritis of multiple joints, a left foot disability, a right hand disability, residuals of broken ribs, a left eye disability, residuals of a left jaw fracture, a left-side facial fracture, a chin scar, and a left knee disability as a result of an airplane accident that occurred while he was training to become a pilot. He argues that his training qualifies as training and rehabilitation services as defined in 38 C.F.R. § 3.361(d)(3). For the purpose of establishing entitlement to section 1151 benefits, a disability is a qualifying additional disability if it was not the result of the Veteran's willful misconduct and the disability was proximately caused (A) by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under 38 U.S.C. § 3115) as part of an approved rehabilitation program under chapter 31 of this title [38 U.S.C. §§ 3100 et seq.], or (B) by participation in a program (known as a "compensated work therapy program") under 38 U.S.C. § 1718. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(a)-(d). First, there must be evidence of additional disability, as shown by comparing the Veteran's condition before and after the training and rehabilitation services, or compensated work therapy (CWT), in question. 38 C.F.R. § 3.361(b). VA considers each body part or system separately. The additional disability must not be the result of the Veteran's willful misconduct. 38 U.S.C. § 1151(a). Second, the additional disability must be caused by training and rehabilitation services, or a CWT program furnished to the Veteran by VA under 38 U.S.C. chapter 17 or chapter 31. 38 C.F.R. § 3.361(c), (d)(3). To establish that the provision of training and rehabilitation services or a CWT program proximately caused a veteran's additional disability, it must be shown that the veteran's participation in an essential activity or function of the training, services, or CWT program provided or authorized by VA proximately caused the disability. It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized. Generally, benefits under 38 U.S.C. chapter 31 are provided to veterans with service-connected disabilities rated at a certain percentage. In fact, the title of the chapter is "Training and Rehabilitation for Veterans with Service-Connected Disabilities." Benefits under 38 U.S.C. § 1718 pertain to rehabilitative services provided to veterans while they are receiving hospital, nursing home, or domiciliary care furnished by the Secretary. In determining whether § 1151 compensation is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After reviewing the evidence, the Board finds that compensation under 38 U.S.C. § 1151 for a left leg disability, arthritis of multiple joints, a left foot disability, a right hand disability, residuals of broken ribs, a left eye disability, residuals of a left jaw fracture, a left-side facial fracture, a chin scar, and a left knee disability is not warranted. First, the evidence does not show that the Veteran received his flight school training while receiving hospital, nursing home, or domiciliary care furnished by the Secretary. As such, his flight school training does not qualify as a CWT program under 38 U.S.C. §1718. Second, regarding chapter 31 benefits, the Board acknowledges that the Veteran was in flight school to obtain a private and commercial pilot license in 1960, that VA benefits paid for his flight instruction, and that while finishing his flight hours for certification, he was involved in an accident resulting in multiple injuries. However, at the time of the accident, the Veteran's training was not part of an approved rehabilitation program under 38 U.S.C. chapter 31. As discussed above, chapter 31 provides training and rehabilitation benefits for veterans with service-connected disabilities. At the time of the Veteran's training in 1960, he had no service-connected disabilities. Moreover, a receipt dated January 13, 1960 from the aviation school shows that the Veteran's tuition was paid for by the G.I. Bill. In a July 2008 statement, the Veteran also acknowledged that his training was funded by the GI Bill. Unfortunately, the GI Bill is not a benefit under 38 U.S.C. chapter 31. The Board acknowledges the Veteran's argument that his flight school qualifies as an approved flight training course under 38 C.F.R. § 21.4263; however, Title 38, Part 21 of the Code of Federal Regulations merely implements 38 U.S.C. chapter 31 benefits for vocational rehabilitation and education. Again, in 1960, the Veteran did not have service-connected disabilities and he did not qualify for vocational rehabilitation benefits. Based on the foregoing, since the Veteran was not participating in training provided or authorized by VA as part of an approved rehabilitation program under 38 U.S.C. chapter 31 or chapter 17 at the time of his accident in 1960, compensation under 38 U.S.C. § 1151 for a left leg disability, arthritis of multiple joints, a left foot disability, a right hand disability, residuals of broken ribs, a left eye disability, residuals of a left jaw fracture, a left-side facial fracture, a chin scar, and a left knee disability must be denied as a matter of law. ORDER New and material evidence having been received, the claim for service connection for a sinus condition is reopened, and to this extent, the appeal is granted. Service connection for a right foot disability is denied. Service connection for a right leg disability is denied. Compensation for a left leg disability under the provisions of 38 U.S.C. § 1151 is denied. Compensation for multiple-joint arthritis under the provisions of 38 U.S.C. § 1151 is denied. Compensation for a left foot disability under the provisions of 38 U.S.C. § 1151 is denied. Compensation for a right hand disability under the provisions of 38 U.S.C. § 1151 is denied. Compensation for the residuals of broken ribs under the provisions of 38 U.S.C. § 1151 is denied. Compensation for a left eye disability under the provisions of 38 U.S.C. § 1151 is denied. Compensation for residuals of a left jaw fracture under the provisions of 38 U.S.C. § 1151 is denied. Compensation for residuals of a left-side facial fracture under the provisions of 38 U.S.C. § 1151 is denied. Compensation for a chin scar, also a residual of injury, under the provisions of 38 U.S.C. § 1151 is denied. Compensation for a left knee disability under the provisions of 38 U.S.C. § 1151 is denied. REMAND The Veteran seeks service connection for a sinus condition, to include as secondary to his service-connected postoperative residuals of a deviated nasal septum, and for residuals of a ruptured left eardrum. The Board apologizes for the delay but finds that additional development is necessary before adjudicating these claims. Regarding the sinus condition, the Veteran indicated that he has had sinus problems since service and that his problems started after his surgery for a deviated septum. The RO granted service connection for postoperative residuals of a deviated nasal septum in June 2015. The Veteran has not been provided a Compensation and Pension examination to determine whether any sinus condition is related to service or is due to or has been aggravated by his service-connected postoperative residuals of a deviated nasal septum. Accordingly, the Board finds that a remand is necessary to obtain an opinion addressing the relationship of any sinus disability diagnosed during the pendency of the claim to service and/or his service-connected postoperative residuals of a deviated nasal septum. Regarding the left eardrum, the Veteran is competent to report that he ruptured a blood vessel and observed blood draining from his left ear during service. He is also competent to report that he has had ear infections since service. In support of his claim, his wife submitted statements indicating that he has had constant ear infections since service, which occasionally involved drainage of bloody fluid onto his pillow while he slept. She is competent to report her observations of the Veteran's ear symptoms and notably, since they got married while he was on active duty, she had the opportunity to observe his symptoms immediately upon his return from service. April and June 2010 VA treatment records show a diagnosis of cholesteatoma of the left ear and recurrent ear infections. See also VA treatment records dated June 2017. Given the foregoing, since the Veteran is competent to report symptoms during and since service and because the evidence shows a current left ear disability, the Board finds a remand is necessary to schedule a VA examination to obtain an opinion indicating whether any current left ear disability is related to service. Finally, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the other issues remanded herein and with the issue of entitlement to an increased rating for postoperative residuals of a deviated nasal septum, which is addressed in a separate Board remand. Therefore, although the Board regrets the additional delay, the issue of entitlement to a TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). On remand, any outstanding records should be obtained. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file updated VA treatment records, if any, and any identified private treatment records. All efforts to obtain additional evidence must be documented in the electronic record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his sinus disability. The examiner must be provided access to the electronic claims file and he or she must indicate review of these items in the examination report. All necessary testing must be completed, and a complete history should be elicited. The examiner should identify all current sinus disabilities. In doing so, clearly identify all sinus disabilities diagnosed since the beginning of the claim, even if they have since resolved, and identify the date of diagnosis. For each current sinus disability (i.e., shown since the beginning of the claim), to include chronic rhinitis and sinusitis, opine whether it is at least as likely as not (50 percent or greater probability) that the disability is related to service or has been aggravated (permanently worsened) by postoperative residuals of a deviated nasal septum. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In the rationale, the examiner should address the lay statements from the Veteran indicating symptoms present since service. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his left ear disability. The examiner must be provided access to the electronic claims file and he or she must indicate review of these items in the examination report. All necessary testing must be completed and a complete history should be elicited. The examiner should identify all current disabilities of the left ear. For each current disability, to include cholesteatoma, opine whether it is at least as likely as not (50 percent or greater probability) that the disability is related to service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In the rationale, the examiner should address the lay statements from the Veteran and his wife indicating left ear symptoms present since service. 4. Then, readjudicate the Veteran's claims for service connection on appeal. If the benefits sought remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. 5. After ensuring that the development is completed in this remand order and in the separate remand order addressing entitlement to an increased rating for postoperative residuals of a deviated nasal septum, readjudicate the claim for a TDIU. If the claim for TDIU remains denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. 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. §§ 5109B, 7112 (2012). _______________________ _______________________ LANA K. JENG S.B. Mays Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs