Citation Nr: 21003275 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-62 418A DATE: January 21, 2021 ORDER Service connection for rhinitis is granted. REMANDED Service connection for a cervical spine disorder is remanded. Service connection for right upper extremity radiculopathy as secondary to a cervical spine disorder is remanded. Service connection for diverticulosis is remanded. Service connection for hypothyroidism is remanded. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran’s rhinitis began during his active service and has existed since that time. CONCLUSION OF LAW The criteria for service connection for rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to March 2002. This matter is on appeal from October 2015 and December 2016 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Roanoke, Virginia. In March 2020 the Veteran testified at a hearing before the undersigned Veterans Law Judge. Evidence pertinent to the matters on appeal was received contemporaneously with the Veteran’s March 2020 Board hearing and the Veteran has waived initial RO consideration of this evidence. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in March 2020. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). 1. Entitlement to service connection for rhinitis is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). 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 discharge 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) (2020). In addition, service connection for certain chronic diseases, including arthritis may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At his March 2020 Board hearing the Veteran asserted that he has recurrent rhinitis that had begun during his active service. Rhinitis was not noted on the Veteran’s November 1978 service entrance examination or the corresponding report of medical history. The Board finds that the evidence of record supports a finding of service connection for rhinitis. First, there is current rhinitis disability, as noted on a June 2018 private treatment record and the Veteran’s March 2020 VA active problems list. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Second, the Board finds that there was in-service disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service treatment records (STRs) note treatment for rhinitis, including in June 1999. Third, the Board finds that the evidence of record supports a finding that the Veteran’s rhinitis has existed since active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has provided competent and credible testimony of rhinitis symptoms that have consistently recurred since service. See Washington, 19 Vet. App. at 368; Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to state that he has had such symptoms since service, and the Veteran’s contentions in this regard are credible, as the statements are capable of lay observation and have been consistent. See Caluza, 7 Vet. App. at 511. Further, a June 2018 medical record from the Veteran’s private physician indicated that the Veteran’s rhinitis symptoms were both persistent and perennial. Although an October 2015 VA examiner opined that service did not give the Veteran rhinitis, they did not address whether rhinitis had onset during active duty, irrespective of whether it was caused by service. Thus, that opinion is not relevant to the theory upon which service connection rhinitis is granted and is assigned no probative value. The Board thus finds that the Veteran’s lay statements, confirmed in essence by the June 2018 record from the Veteran’s private physician, are sufficient to establish that rhinitis began during active duty and has existed since that time. Accordingly, service connection for rhinitis is warranted. REASONS FOR REMAND 2. Entitlement to service connection for diverticulosis is remanded. 3. Entitlement to service connection for hypothyroidism is remanded. Remand is required to obtain a VA examination and opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). A private medical record indicates that the Veteran underwent a CT abdominal scan in March 2003, approximately one year following his service discharge. In May 2000 during service the Veteran made complaints of tiredness and fatigue, and at the March 2020 Board hearing the Veteran stated that during his service he had been concerned about his blood pressure and cholesterol levels. A March 2020 active problem list noted both diverticulosis and hypothyroidism. Accordingly, as there are current disabilities, in-service events, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 3. Entitlement to service connection for a cervical spine disorder is remanded. Remand is required to obtain an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). At his March 2020 Board hearing the Veteran asserted that he has cervical spine disability that had resulted from the same activities (lifting missiles and heavy objects during service) for which he was granted service connection for right shoulder disability. In November 2016, a VA examiner opined that the Veteran’s cervical spine degenerative changes were less likely than not related to service. In doing so, the examiner appeared to rely solely on the lack of objective documentation of cervical spine treatment in the service treatment records and failed to address the Veteran’s lay statements of continuity of symptomatology. Accordingly, remand for an adequate examination is required. 4. Entitlement to service connection for right upper extremity radiculopathy is remanded. Remand is required as this issue is intertwined with other issues being remanded. The Veteran asserts that he has right upper extremity radiculopathy related to his cervical spine disability. The right upper extremity disability claim must be remanded as it is inextricably intertwined with the cervical spine issue being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after December 17, 2020. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his diverticulitis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diverticulitis (diagnosed just 12 months following service) had its onset in, or is otherwise caused by, the Veteran’s military service. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his hypothyroidism claim. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypothyroidism had its onset in, or is otherwise caused by, the Veteran’s military service, to include the complaints made by the Veteran in May 2000. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his cervical spine disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability had its onset in, or is otherwise caused by, the Veteran’s military service. The examiner must consider and discuss the Veteran’s lay statements wherein he has indicated that he has had cervical spine difficulties continuously since service. If the examiner finds that the Veteran has a cervical spine disorder related to service, the examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has right upper extremity radiculopathy that is caused or aggravated by the cervical spine disorder. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2020). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.