Citation Nr: 1808512	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  08-09 775A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for rhinitis.  

2.  Entitlement to a rating in excess of 30 percent for trigeminal nerve damage with sensory impairment and hyperesthesia on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1).  

3.  Entitlement to a rating in excess of 50 percent for sinusitis with headaches and maxillary sinus fracture residuals on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1).  


REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel


INTRODUCTION

The Veteran had active service from June 1973 to November 1973.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the New Orleans, Louisiana, Regional Office of the Department of Veterans Affairs (VA) which denied an increased rating for sinusitis with maxillary sinus fracture residuals.  In August 2005, the Board denied an increased rating for the service-connected sinus disability.  The Veteran appealed to the United States Court of Appeals for Veterans Claims.  

In June 2006, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Partial Remand; vacated that portion of the August 2005 Board decision which denied an increased rating for the service-connected sinus disability; and remanded the Veteran's claim to the Board for additional action consistent with the Joint Motion for Partial Remand.  In October 2006, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction for additional development.  

In June 2007, the Agency of Original Jurisdiction increased the rating for the service-connected sinus disability from 10 percent to 30 percent, effective April 29, 2002.  In December 2007, the RO denied an increased rating for trigeminal nerve damage with sensory impairment and hyperesthesia.  In February 2009, the Board remanded the Veteran's claims for increased ratings for the trigeminal nerve disability and the sinus disability to the Agency of Original Jurisdiction for additional development.  

In July 2010, the Board remanded the Veteran's claim for an increased rating for the trigeminal nerve disability to the Agency of Original Jurisdiction for additional development.  In March 2011, the Board denied a schedular rating in excess of 30 percent for the trigeminal nerve disability and remanded the issues of a rating in excess of 30 percent for trigeminal nerve disability on an extraschedular basis; a rating in excess of 30 percent for the sinus disability; and a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) to the Agency of Original Jurisdiction for additional development.  

In June 2012, the RO increased the rating for the sinus disability from 30 percent to 50 percent, effective April 29, 2002, and granted TDIU, effective August 18, 2010.  In September 2013, the Board remanded the issues of a rating in excess of 30 percent on an extraschedular basis for the trigeminal nerve disability; a rating in excess of 50 percent on an extraschedular basis for the sinus disability; and TDIU for the period prior to August 18, 2010 on an extraschedular basis to the Agency of Original Jurisdiction for additional development.  

In April 2014, the RO denied service connection for rhinitis.  In June 2014, the Board denied a rating in excess of 30 percent for the trigeminal nerve disability on an extraschedular basis; a rating in excess of 50 percent for the sinus disability on an extraschedular basis; and TDIU for the period prior to August 18, 2010.  The Veteran appealed to the United States Court of Appeals for Veterans Claims.  

In February 2015, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Partial Remand; vacated that portion of the June 2014 Board decision which denied ratings in excess of 30 percent for the trigeminal nerve disability on an extraschedular basis and a rating in excess of 50 percent for the sinus disability on an extraschedular basis; and remanded those claims to the Board for additional action consistent with the Joint Motion for Partial Remand.  In June 2015 and July 2016, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction for additional development.  




FINDINGS OF FACT

1.  Service connection is in effect for sinusitis with headaches and maxillary sinus fracture residuals; trigeminal nerve damage with sensory impairment and hyperesthesia; diplopia; post-operative left orbital floor fracture residuals with left rectus muscle injury; and left upper eyelid laceration residuals.  

2.  It is at least as likely as not that recurrent rhinitis has been aggravated by the service-connected sinusitis with headaches and maxillary sinus fracture residuals; trigeminal nerve damage with sensory impairment and hyperesthesia; and post-operative left orbital floor fracture residuals with left rectus muscle injury.  


CONCLUSION OF LAW

The criteria for service connection for aggravation of recurrent rhinitis are met.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran asserts that service connection for recurrent rhinitis is warranted as the claimed disability has been aggravated by the service-connected disabilities.  

Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012).  Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2017).  Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disability has aggravated a nonservice-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  Service connection is currently in effect for sinusitis with headaches and maxillary sinus fracture residuals; trigeminal nerve damage with sensory impairment and hyperesthesia; diplopia; post-operative left orbital floor fracture residuals with left rectus muscle injury; and left upper eyelid laceration residuals.  

The Veteran's service medical records do not refer to rhinitis.  

Written statements dated in December 2006 and December 2008 from D. Batie, M.D., state that doctor had treated the Veteran for chronic rhinitis.  The doctor commented that the Veteran's "rhinitis began after an armed services related injury in 1974 -a blowout fracture" and "his rhinitis has been persistent since this injury."  

A March 2014 VA respiratory examination report states that the Veteran was initially diagnosed with allergic rhinitis in 1973.  The examiner concluded that the diagnosed allergic rhinitis "was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness."  The VA physician commented that "the orbital fracture and maxillary fracture that occurred while in the military and repair would have no correlation with his allergic rhinitis" and the "allergic rhinitis is a separate entity from his service-connected sinusitis and facial fractures."  He clarified that "allergic rhinitis is due to contact with allergens and would not be triggered by sinus surgery no facial fractures."  The doctor neither noted or otherwise addressed Dr. Batie's statements as to the etiological relationship between the service-connected disabilities and the diagnosed recurrent rhinitis nor advanced any opinion as to whether the service-connected disabilities had aggravated the rhinitis.  Because of those deficiencies, the VA examination report is of limited probative value.  

The Board finds that the evidence is in at least equipoise as to whether the diagnosed recurrent rhinitis was aggravated by the service-connected sinusitis with headaches and maxillary sinus fracture residuals; trigeminal nerve damage with sensory impairment and hyperesthesia; and post-operative left orbital floor fracture residuals with left rectus muscle injury.  Dr. Batie concluded that the diagnosed recurrent rhinitis was etiologically related to the multiple service-connected disabilities.  The March 2014 VA examination report is not adequate to demonstrate that the rhinitis was not aggravated by the multiple service-connected disabilities.  Therefore, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for recurrent rhinitis.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).  


ORDER

Service connection for aggravation of recurrent rhinitis by service-connected disabilities is granted.  


REMAND

Because of the Board's award of service connection for recurrent rhinitis and as the symptoms associated with that disability are intertwined with those of the service-connected trigeminal nerve and sinus disabilities, the Board finds that the issues of entitlement to a rating in excess of 30 percent for trigeminal nerve damage with sensory impairment and hyperesthesia on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1) and a rating in excess of 50 percent for sinusitis with headaches and maxillary sinus fracture residuals on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1) should be readjudicated.  In readjudicating the issues, the Agency of Original Jurisdiction should review the May 2017 VA neurological examination report and the June 2017 addendum thereto which establish that the Veteran has been diagnosed with tic douloureux.  

VA clinical documentation dated after January 2016 is not of record.  VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims.  Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he provide information as to all treatment of the trigeminal nerve and sinus disabilities after January 2016, including the names and addresses of all health care providers whose records have not already been provided to VA.  Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record.  If identified records are not obtained, then notify the Veteran.  38 C.F.R. § 3.159(e) (2017).  

2.  Associate with the record any VA medical records for examination and treatment not already of record, to specifically include provided after January 2016.  

3.  Readjudicate the claims on appeal.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then return the case to the Board.  

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).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112 (2012).  



_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs