Citation Nr: 18151024 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-22 493 DATE: November 16, 2018 ORDER Entitlement to service connection for residuals of a fractured nose is denied. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for residuals of a fractured jaw is remanded. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for visual impairment, including blindness, due to treatment by the Department of Veterans Affairs, is remanded. FINDING OF FACT There is no evidence of a current disability related to the Veteran’s asserted fractured nose in service. CONCLUSION OF LAW The criteria for service connection for residuals of a fractured nose have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1965 to January 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2016, a Travel Board hearing was held before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is included in the claims file. This case was previously before the Board in August 2016. The Veteran’s claims were remanded for additional development and due process considerations. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. This letter explained the evidence necessary to substantiate the Veteran’s claims of entitlement to service connection, as well as explained the legal criteria for entitlement to such benefits. The letter also informed him of his and VA’s respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claims. The Veteran was afforded VA examinations responsive to the claim for service connection. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for residuals of a fractured nose Based on the evidence of record, the Veteran’s claim of entitlement to service connection for residuals of a fractured nose must be denied. Initially, the Board also notes that the Veteran has been granted service connection for sinusitis based on the Veteran’s reported history of facial trauma. Thus, this decision will address any residuals other than sinusitis. The April 2017 VA medical opinion concluded that the Veteran’s reported nasal fracture had resolved, and the examiner identified no residuals. The only residual identified in the examination reports is sinusitis, which as noted, is already service-connected. Thus, the Board finds that there is no current disability remaining upon which service connection can be based. In the absence of proof of current disability, the claim of service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There has been no finding of a current disability other than sinusitis, proximate to or during the pendency of the Veteran’s claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Thus, service connection for residuals of a nasal fracture is not warranted. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for residuals of a nasal fracture, and the claim is denied. REASONS FOR REMAND Whether new and material evidence has been received to reopen the claims of entitlement to service connection for right and left knee disabilities In the Board’s August 2016 remand, the RO was directed to obtain morning reports for May 1967 for the correct unit, as the prior request had been for the incorrect unit. However, it appears that the new request was not made for the correct unit. Thus, another request for these records should be undertaken. Entitlement to service connection for residuals of a fracture of the jaw The March 2017 opinion regarding the nature and etiology of any current residuals of the Veteran’s asserted jaw fracture is inadequate. The examiner notes a mandibular condition related to TMJ, but does not adequately address either the etiology of this condition or the basis for the onset for the condition. Thus, clarification is required. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for visual impairment, including blindness, due to nasal septal perforation surgery is remanded. The Board acknowledges that a medical opinion was obtained as to the Veteran’s claim of entitlement to a compensation benefits under the provisions of 38 U.S.C. § 1151 for vision impairment, including blindness, due to treatment by VA. However, the Board finds that the VA medical opinion is insufficient. The Veteran contends that he incurred additional disability, namely vision loss due to glaucoma, as a result of VA treatment; the Veteran alleges that his vision loss due to glaucoma is the result of septorhinoplasty, closure of septal perforations with reconstruction of the nose and temporalis fascia graft. The Board observes that the Veteran has not alleged any particular failures or errors as to the surgical treatment. The February 2017 VA examination report stated that the Veteran’s vision loss was related to the Veteran’s facial surgery. The contemporaneous medical opinion found that there was no evidence that the Veteran’s vision loss due to glaucoma was proximately caused by carelessness, negligence, or lack of proper skill, error in judgement, or similar instance of fault on the part of VA during the Veteran’s facial surgery in July 1996. The Board finds that the VA examiner’s findings are inconsistent with the evidence of record. To this point, the Board notes that the VA examination report and medical opinion do not provide any basis for the finding that the Veteran’s vision loss is a qualifying additional disability under the law, and there is also no explanation for the finding that the Veteran’s vision loss was not due to VA treatment. The Board also notes that the VA examiner did not address whether the Veteran’s vision loss could be proximately caused by an event not reasonably foreseeable. More significantly, the Board finds the opinion is inadequate for purposes of adjudication because the VA examiner provided no rationale for either finding and did not address any of the medical evidence of record. The Board notes that there were no complications noted in the July 1996 surgical report and the Veteran first reported decreased vision in February 1998. The VA examiner did not address February 1998 VA treatment records which indicate that the Veteran reported that his decreased peripheral vision was due to early onset glaucoma. Similarly, the VA examiner did not address the July 1998 VA medical record wherein the Veteran’s treating physician found that the Veteran’s decreasing peripheral vision was not related to his surgery to repair septal perforations. In particular, the treating physician indicated that a review of the surgical report showed nothing to explain the Veteran’s allegations of a relationship between the surgery and his decreasing vision; the treating physician stated that the Veteran’s decreasing vision may have been due to otitic hydrocephalus or an autoimmune reaction. When a veteran suffers an injury or an aggravation of an injury resulting in additional disability or death as the result of VA training, hospitalization, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death were service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). In determining whether a veteran sustained additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran’s condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, or died, does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. In addition, the proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. Determinations as to whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. As specified in 38 C.F.R. § 3.361(d)(2), in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. The matter is REMANDED for the following action: 1. Request the morning reports for May 1967 for information regarding the Veteran’s assertion that he was struck by a motor vehicle on May 25, 1967. The RO should request this information for the following unit: 319th USASA, 184th Battalion, Company B, 17th Field Station stationed in Germany at the time. 2. Return the file to the April 2017 examiner that rendered the opinion regarding the Veteran’s jaw condition, if the examiner is not available, send the file to another qualified examiner. The examiner should review the claims folder, including the service treatment records, the post service medical records, and the Veteran’s lay statements and testimony. The examiner should then render an opinion identifying all current disabilities related to the Veteran’s jaw, and for each identified disability of the jaw, render an opinion as to whether it is at least as likely as not that the identified disability is related to the Veteran’s active service. The examiner must provide a rationale based on the evidence of record and his or her medical knowledge to support his or her opinions. 3. Obtain an opinion from an appropriate VA medical professional. The claims file must be provided to and reviewed by the examiner. The VA examiner must address, with specificity, the medical evidence of record, including the July 1996 surgical report, February 1998 through July 1998 VA treatment records, and the February 2017 VA examination report and medical opinion. The VA examiner must address the following questions: (a) Whether it is as least as likely as not (50 percent probability or more) that the July 1996 septorhinoplasty, closure of septal perforations, and reconstruction of the nose with temporalis fascia graft caused an additional disability manifested by decreased vision? (b) If so, whether any such additional disability manifested by decreased vision was proximately caused by or the result of any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing treatment, (c) or whether any such additional disability manifested by decreased vision was proximately was due to an event that was not reasonably foreseeable? All opinions provided must be thoroughly explained, and an adequate rationale, with specific reference to the relevant evidence of record. (Continued on the next page)   4. Thereafter, readjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel