Citation Nr: 21077392 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-19 967 DATE: December 29, 2021 ORDER The issue of whether new and material evidence has been received to reopen a claim of service connection for a disability manifested by upper back and left scapular pain is denied. Entitlement to service connection for a deviated nasal septum is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for an acquired psychiatric disability is denied. REMANDED The issue of whether a March 2002 rating decision, which granted a 10 percent rating for migraines, constituted clear and unmistakable error (CUE) is remanded. The issue of whether an August 2002 rating decision, which denied a claim of service connection for a disability manifested by upper back and left scapular pain, constituted CUE is remanded. Entitlement to an initial compensable rating for sinusitis is remanded. Entitlement to an earlier effective date than July 5, 2011, for a 60 percent rating for pseudofolliculitis barbae is remanded. Entitlement to an earlier effective date than July 5, 2011, for a 50 percent rating for migraines is remanded. Entitlement to an earlier effective date than July 5, 2011, for an award of service connection for sinusitis is remanded. FINDINGS OF FACT 1. The record evidence shows that, in a rating decision issued in April 2010, the RO denied a request to reopen a previously denied claim of service connection for a disability manifested by upper back and left scapular pain; this decision was not appealed and became final. 2. The record evidence shows that the Veteran, without good cause, failed to report for multiple VA examinations in August 2011 and in March 2013. 3. The record evidence shows that the Veteran does not experience any current disability due to his claimed deviated nasal septum which is related to active service. 4. The record evidence does not show that either the Veteran's cervical spine disability or acquired psychiatric disability is related to active service. CONCLUSIONS OF LAW 1. The issue of whether new and material evidence has been received to reopen a claim of service connection for upper back and left scapular pain is denied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 3.655 (2020). 2. The criteria for service connection for a deviated nasal septum have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.655 (2020). 3. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.655 (2020). 4. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.655 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1993 to September 2000. This matter has a long and complicated procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 rating decision, the RO granted a claim of service connection for tinnitus. There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned. Accordingly, an issue relating to service connection for tinnitus is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (1997). A virtual Board hearing was held in August 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board notes that the issue of whether an August 2002 rating decision, which denied a claim of service connection for allergies, was the product of CUE, is the subject of a separate appeal docketed under docket # 19-14 913A. Thus, it is not before the Board in this appeal. The Board observes that, in an April 2010 rating decision, the AOJ denied the Veteran's request to reopen a previously denied claim of service connection for a disability manifested by upper back and left scapular pain. The Veteran did not appeal this decision and it became final. See 38 U.S.C. § 7104 (2012). He also did not submit any relevant evidence or argument within 1 year of the April 2010 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for a disability manifested by upper back and left scapular pain is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board finally notes that the Veteran, without good cause, failed to report for multiple VA examinations scheduled in August 2011 and in March 2013. Notice of these examinations was mailed to him at his correct mailing address at that time and was not returned to VA as undeliverable by the postal service. Evidence which was expected to be obtained at these examinations could not be obtained. Neither the Veteran nor his attorney has provided good cause for his failure to report for these examinations. He asserted at his August 2021 hearing that he never received notice of these examinations. See Board hearing transcript dated August 6, 2021, at pp. 11. These assertions do not meet the accepted definition of good cause for failure to report for an examination. The Board notes in this regard that the Court has held that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While Ashley dealt with the regularity of Board procedures, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level. The Court specifically held in Mindenhall that a statement of an appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. In other words, the Veteran's assertions in his August 2021 Board hearing testimony that he never received notice of VA examinations scheduled in August 2011 and in March 2013 are insufficient to overcome the presumption of regularity that the RO mailed these notices to him at his correct mailing address of record and they were not returned as undeliverable by the postal service. The Board next notes that a Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). Given the Veteran's failure to report for these examinations, the Board finds that his request to reopen a previously denied claim will be denied and his service connection claims will be rated on the evidence of record (as outlined below). See 38 C.F.R. §§ 3.655(a)-(b) (2020). The Board finally notes that the Veteran and his attorney keep submitting duplicate evidence in support of this appeal. They are advised to stop doing this because it only delays adjudication of these claims. Service Connection 1. Whether new and material evidence has been received to reopen a claim of service connection for a disability manifested by upper back and left scapular pain The Board finds that the issue of whether new and material evidence has been received to reopen a claim of service connection for a disability manifested by upper back and left scapular pain must be denied as a matter of law. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that this claim be reopened in statements on a VA Form 21-526b dated on June 27, 2011, and date-stamped as received by the RO on July 5, 2011. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted in the Introduction, the Veteran, without good cause, failed to report for VA examination scheduled for the purpose of determining the nature and etiology of his claimed disability manifested by upper back and left scapular pain in August 2013. Evidence which was expected to be obtained at these examinations could not be obtained. As also noted in the Introduction, his mere assertion of non-receipt of a VA examination notice provided in his August 2021 Board hearing testimony is insufficient to overcome the presumption that the RO mailed the examination notice to him at his correct mailing address of record, and it was not returned as undeliverable by the postal service. See Mindenhall, 7 Vet. App. at 271. The Board next notes that, where a Veteran fails to report for examination in connection with a reopened claim for a benefit which was denied previously, that claim shall be denied. See 38 C.F.R. § 3.655(b). Thus, the Board finds that the issue of whether new and material evidence has been received to reopen a claim of service connection for a disability manifested by upper back and left scapular pain is denied as a matter of law. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to service connection for a deviated nasal septum The Board next finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a deviated nasal septum. The Veteran essentially contends that he incurred a deviated nasal septum during active service and experienced continuous post-service disability. The record evidence does not support his assertions regarding the existence of current disability due to a deviated nasal septum which could be attributed to active service. It shows instead that he does not experience any current disability due to a deviated nasal septum which is related to active service. As noted in the Introduction, because the Veteran failed to report for VA examinations when they were scheduled in August 2011 and in February 2013, his original service connection claim for a deviated nasal septum will be rated on the record evidence. See 38 C.F.R. §§ 3.655(a)-(b) (2020). The available service treatment records show no complaints of or treatment for a deviated nasal septum. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a deviated nasal septum. Contrary to the Veteran's lay assertions and hearing testimony, it shows instead that he does not experience any current disability due to his claimed deviated nasal septum which is attributable to active service. For example, on private outpatient treatment in February 2009, no relevant complaints were noted. Physical examination showed a septal deformity in the right nasal cavity with 75 percent nasal obstruction. The assessment included deviated nasal septum. On VA sinusitis Disability Benefits Questionnaire (DBQ) in March 2019, no relevant complaints were noted. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. A history of bilateral turbinate reduction surgery was noted. The VA examiner stated that the Veteran did not have a deviated nasal septum. Physical examination showed greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis and permanent hypertrophy of the nasal turbinates. Sinus x-rays showed negative paranasal sinuses and no evidence of congestion. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a deviated nasal septum at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). Contrary to the Veteran's lay assertions and Board hearing testimony, the record evidence shows that he does not experience any current disability due to his claimed deviated nasal septum. Although the Board recognizes that he was diagnosed as having a deviated nasal septum in February 2009, the record evidence also indicates that he had nasal surgery in 2012 which reduced the size of his bilateral nasal turbinates which may have resolved his deviated nasal septum. In any event, his most recent VA examination in March 2019 showed that no deviated nasal septum was present, and his sinus x-rays were negative (or normal). More importantly, the March 2019 VA examiner specifically found that the Veteran did not have a deviated nasal septum. The Board finally notes that a history of a diagnosis of deviated nasal septum was noted on a private treatment record dated in June 2019 when he complained of and sought treatment for migraines at a private hospital. This appears to be a reference to a historical diagnosis of a deviated nasal septum and not an indication of any current disability due to his claimed deviated nasal septum. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a deviated nasal septum. In summary, the Board finds that service connection for a deviated nasal septum is not warranted. 3. Entitlement to service connection for a cervical spine disability and for an acquired psychiatric disability The Board finally finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for a cervical spine disability and for an acquired psychiatric disability. He essentially contends that he incurred each of these disabilities during active service and experienced continuous post-service disability. The record evidence does not support his assertions regarding an etiological link between either of these disabilities and active service. As noted elsewhere, because the Veteran failed to report for VA examinations in August 2011 and in March 2013, his service connection claims for these disabilities will be rated on the record evidence. See 38 C.F.R. §§ 3.655(a)-(b) (2020). The record evidence does not support granting service connection for either a cervical spine disability or for an acquired psychiatric disability. The Board notes initially that the available service treatment records show no complaints of or treatment for either of these claimed disabilities. This is not necessarily fatal to the currently appealed claims. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The post-service evidence also does not support granting service connection for a cervical spine disability or for an acquired psychiatric disability. Contrary to the Veteran's lay assertions and Board hearing testimony, it shows instead that, although he has complained of and sought treatment for both of these disabilities since his service separation, there is no evidence that either of them is related to active service. The Veteran's post-service VA outpatient treatment records show ongoing complaints of and treatment for a cervical spine disability and for an acquired psychiatric disability. For example, VA magnetic resonance imaging (MRI) scan of the cervical spine taken in March 2009 showed mild degenerative disc changes in the mid-cervical spine "with varying degrees of spinal stenosis." On VA outpatient treatment in July 2010, the Veteran's complaints included job frustration. He had been married for 14 years but separated from his wife for over 1 year. He slept 6 hours a night when he took trazodone. "His sleep schedule is disrupted by his work schedule. He has interests in genealogy and spending time with his family. There has been no change in his motivation for these activities. His energy level has declined, and he reports decreased concentration." He had friends but did not spend time with them due to his work schedule. He is close to his 2 siblings. He had no problems getting along with others and no problems with anxiety, anger, a short temper, or violence. Mental status examination of the Veteran showed full orientation, normal speech, normal and coherent thought processes, no unusual thought content, good insight and judgment, and no suicidal or homicidal ideation. The Axis I diagnosis was adjustment disorder with depressed mood. As noted in the Introduction, the Veteran failed to report for VA examinations scheduled in August 2011 and in March 2013 for the purpose of determining the nature and etiology of his cervical spine disability and acquired psychiatric disability. Evidence which was expected to be obtained from these examinations could not be obtained. Neither the Veteran nor his attorney has provided any explanation or good cause for why he failed to report for these examinations. In other words, the Veteran clearly failed to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson, 3 Vet. App. at 480. The record evidence shows that the Veteran complained of and sought treatment for both a cervical spine disability and an acquired psychiatric disability since his service separation. Unfortunately, there is no evidence currently of record relating either of these disabilities to active service. And, as noted elsewhere, the Veteran failed to report for VA examinations scheduled for the purpose of determining the nature and etiology of these disabilities. In summary, given the Veteran's failure to report for examinations in connection with these original service connection claims, the Board finds that the claims of service connection for a cervical spine disability and for an acquired psychiatric disability must be denied as a matter of law. See Sabonis, 6 Vet. App. at 430. REASONS FOR REMAND 1. Whether a March 2002 rating decision, which granted a 10 percent rating for migraines, constituted clear and unmistakable error (CUE) is remanded. 2. Whether an August 2002 rating decision, which denied a claim of service connection for a disability manifested by upper back and left scapular pain, constituted CUE is remanded. 3. Entitlement to an initial compensable rating for sinusitis is remanded. 4. Entitlement to an earlier effective date than July 5, 2011, for a 60 percent rating for pseudofolliculitis barbae is remanded. 5. Entitlement to an earlier effective date than July 5, 2011, for a 50 percent rating for migraines is remanded. 6. Entitlement to an earlier effective date than July 5, 2011, for an award of service connection for sinusitis is remanded. The Board notes that, in a rating decision dated on February 16, 2017, and issued to the Veteran and his attorney on March 3, 2017, the RO assigned a higher 60 percent rating effective July 5, 2011, for the Veteran's service-connected pseudofolliculitis barbae (PFB). The RO also assigned a higher 50 percent rating effective July 5, 2011, for his service-connected migraines. The RO further granted service connection for sinusitis and assigned a zero percent (non-compensable) rating effective July 5, 2011. The RO finally concluded that a March 2002 rating decision, which granted a 10 percent rating for migraines, and an August 2002 rating decision, which denied a claim of service connection for a disability manifested by upper back and left scapular pain, were not the product of CUE. The Veteran disagreed with the March 2017 rating decision in statements on a VA Form 21 0958, "Notice Of Disagreement," dated on March 13, 2017, and date-stamped as received electronically by VA that same date. To date, however, the RO has not promulgated a Statement of the Case (SOC) on any of these claims. The Veteran's attorney confirmed on the record at the August 2021 virtual Board hearing that these issues had not been the subject of an SOC. See Board hearing transcript dated August 6, 2021, at pp. 2-3. The Court has held that, where a claimant files a notice of disagreement and the RO has not issued an SOC, the issue must be remanded to the RO for an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, the Board finds that, on remand, the RO should promulgate an SOC on the issues of: (1) Whether a March 2002 rating decision, which granted a 10 percent rating for migraines, constituted clear and unmistakable error (CUE); (2) Whether an August 2002 rating decision, which denied a claim of service connection for a disability manifested by upper back and left scapular pain, constituted CUE; (3) Entitlement to an initial compensable rating for sinusitis; (4) Entitlement to an earlier effective date than July 5, 2011, for a 60 percent rating for pseudofolliculitis barbae; (5) Entitlement to an earlier effective date than July 5, 2011, for a 50 percent rating for migraines; and (6) Entitlement to an earlier effective date than July 5, 2011, for an award of service connection for sinusitis. The matters are REMANDED for the following action: Promulgate a Statement of the Case (SOC) on the issues of: (1) Whether a March 2002 rating decision, which granted a 10 percent rating for migraines, constituted clear and unmistakable error (CUE); (2) Whether an August 2002 rating decision, which denied a claim of service connection for a disability manifested by upper back and left scapular pain, constituted CUE; (3) Entitlement to an initial compensable rating for sinusitis; (4) Entitlement to an earlier effective date than July 5, 2011, for a 60 percent rating for pseudofolliculitis barbae; (5) Entitlement to an earlier effective date than July 5, 2011, for a 50 percent rating for migraines; and (6) Entitlement to an earlier effective date than July 5, 2011, for an award of service connection for sinusitis. A copy of the SOC should be sent to the Veteran and his attorney. These claims should be returned to the Board only if the Veteran perfects a timely appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, Counsel 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.