Citation Nr: 21032336 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-57 885 DATE: May 26, 2021 ORDER Entitlement to service connection for residuals of an in-service nasal surgery is granted. REMANDED Whether new and material evidence has been received to reopen a previously denied claim for service connection for a skin disorder, to include irritant dermatitis, keloids, and folliculitis, is remanded. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a sinus condition is remanded. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a disability manifested by headaches is remanded. Entitlement to service connection for bunions is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for left foot injury is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current symptoms of numbness, pain, and tingling in his nose are related to his in-service rhinoplasty. CONCLUSION OF LAW The criteria for service connection for residuals of an in-service nasal surgery have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to September 1985 with subsequent service in the Reserves. This case comes to the Board from decisions issued by the Agency of Original Jurisdiction (AOJ), in October 2014 and May 2016. In December 2020, the Veteran testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. Service Connection for Residuals of In-Service Nasal Surgery Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As the Board will explain, most of the issues in this appeal must be remanded because the available service treatment records remain incomplete and it is unclear whether the AOJ complied with its duty to obtain them. Fortunately, the AOJ did receive copies of inpatient treatment records from Tripler Army Medical Center in Hawaii. According to these records, the Veteran was admitted to the hospital in late May 1985 with a diagnosis of nasal deformity and a surgeon performed a rhinoplasty with septal cartilage graft and Weir excisions. In June 1985, after seven days of post-surgical recovery, he was discharged from the hospital in satisfactory condition. The surgery took place during the Veteran's initial period of active duty service. In his hearing testimony, the Veteran described numbness, tingling, tenderness and occasional pain at the site of the surgery. To support his claim, he has submitted post-service medical treatment records from Dr. N.E., a physician in private practice. These records include a note, dated December 2015, in which the physician indicated that, "the sensation of numbness at the side of his nose and in the tip is secondary to the rhinoplasty he had done he had weir excisions and tip grafting and this is normal/expected sequela of the rhinoplasty and has been this way since rhinoplasty." The records from Tripler Army Medical Center satisfy the in-service disease, injury or event requirement of this claim. The Veteran's testimony and the post-treatment opinion from Dr. N.E. satisfy the current disability requirement and, taken together with the in-service operative report, the requirement of a causal relationship between current symptoms and the in-service event. It is significant that Dr. N.E. described the symptoms described by the Veteran as normal consequences of precisely the kind of rhinoplasty operation described in the May 1985 operative report. Under these circumstances, it is at least as likely as not that the Veteran developed symptoms of numbness, tingling and occasional nasal pain as a result of his in-service rhinoplasty in May 1985. By law, the doubt resulting from this equipoise in the evidence is resolved in the appellant's favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only 'an approximate balance of positive and negative evidence'... , the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). Thus, service connection for current residuals of in-service nasal surgery is granted. REASONS FOR REMAND Concerns Applicable to the Veteran's Claims in General With the exception of the inpatient records from Tripler Army Medical Center, all the available service treatment records relate to the Veteran's Reserve and National Guard service between 1997 and 2004. In November 2005, when developing the Veteran's initial set of claims for service-connected compensation, the AOJ requested service treatment records for the Veteran's period of active duty service between September 1982 and September 1985. An e-mail message from the records management center suggests that the missing records were transferred to the Regional Office in Washington, DC in April 2004. In March 2006, e-mail messages from both the Washington and Philadelphia Regional Offices indicated that neither facility had the missing records. A May 2006 routing and transmittal slip describe the missing records as an "in transit" service medical record. Based on these efforts, in July 2006, the AOJ prepared a memorandum finding that the missing records were unavailable. In March 2016, when developing the currently pending set of claims, the AOJ made an appropriate request for the missing records using the Personnel Information Exchange System (PIES). But on the only available copy of the March 2016 PIES request, both the "Overall Completion Date:" and "Response:" sections are blank. In other words, there is no documentation describing the results of the March 2016 records request. A subsequent September 2016 statement of the case (SOC) includes the missing records ("Service treatment records from September 7, 1982 to September 7, 1985") on the list of the items of evidence considered. But seems likely that this message was mistaken because a more recent SOC, dated May 2019, indicates that "No service treatment records were available for review. Efforts to obtain service medical records from all potential sources were unsuccessful." And, of course, except for the Tripler records, the Board is currently unable to find any service treatment records for the Veteran's initial period of active duty service in his electronic claims file. It is not clear that the AOJ made all reasonable efforts to obtain the missing records. As noted, the results of the March 2016 request are unclear. Likewise, there is no information about any attempts to comply with the follow-up procedures required by the VA Adjudication Procedures Manual when an initial request for service treatment records is unsuccessful. See M21-1, Part III, Subpart iii, Chapter 2, Section I (last updated June 2, 2020). On remand, the AOJ should make reasonable efforts to obtain copies of the missing service treatment records. Service Connection for an Acquired Psychiatric Disorder In his hearing testimony and statements, the Veteran attributed his current psychiatric symptoms to a claimed traumatic incident during his active duty service. The Veteran and a group of other soldiers were passengers in a truck which had a flat tire. The Veteran explained that, when working together to change the tire, a fellow soldier went underneath the truck. According to the Veteran, the jack holding up the truck somehow became dislodged, causing the truck to fall down onto the head of the soldier, killing him. According to the September 2016 SOC, the AOJ was "unable to verify the in-service accident that happened in 1984 based on the information provided. The available evidence is not specific enough for us to submit our request for verification of that stressor." The Board disagrees with this conclusion. Although it would be preferable if the Veteran could identify the dead soldier by name, he identified the location of the incident (the Naval Air Station at Barbers Point, Hawaii) and the military unit to which he was assigned at the time of the incident (147th Transportation Company). In a February 2016 questionnaire, the Veteran identified July 1, 1983 as the approximate date of the accident ("a few days before 4th of July weekend"). In a more recent form, the Veteran identified the date of the accident as May 25, 1984. The February 2016 questionnaire also mentions Schofield Barracks, Hawaii and the 25th Infantry Division. It is not clear whether this was the dead soldier's unit or a larger military organization to which the 147th Transportation Company (the Veteran's unit) may have belonged. Because the Veteran's alleged stressor involves the accidental death of a fellow soldier in peacetime, it is likely that unit histories, unit records or other official sources include some official written report about this accident. On remand, the AOJ should request a review of unit histories, unit records, or other appropriate records depositories in order to verify the Veteran's claimed in-service stressor. The matters are REMANDED for the following action: 1. The AOJ should make further efforts to obtain complete copies of the Veteran's complete service treatment records, including the apparently missing records concerning his first period of active duty (September 1982 to September 1985). These efforts should include new appropriate requests using PIES system. The AOJ should carefully review any records obtained as a result of the post-remand records requests. If the records obtained do not include service treatment records for the period between September 1982 and September 1985, the AOJ should pursue follow-up measures, including follow-up by a military records specialist, electronic mail follow-up to the VA liaison office at the NPRC, contact with the Veteran's duty station at the time of his separation from service and any other follow-up procedures. 2. The AOJ should conduct or request research into potentially relevant unit histories, unit records, or other appropriate records depositories in order to verify the Veteran's claimed in-service stressor. The AOJ is advised that, according to the Veteran, an accident involving the death of a fellow soldier occurred at Barbers Point Naval Air Station in Hawaii, either in early July 1983 or on May 25, 1984. At the time of the accident, the Veteran has indicated that he was assigned to the 147th Transportation Company. It is possible that the dead soldier was a member of this unit or that he may have belonged to the 25th Infantry Division at Schofield Barracks, Hawaii. There should be a search of the relevant unit records for both July 1983 and May 1984. 3. The AOJ should review the claims file, including any new information obtained pursuant to these remand orders, and consider the potential need for further development including, if appropriate, ordering examinations and/or obtaining medical opinions concerning whether any of the remaining claimed disabilities had its initial onset in service or is otherwise related to any in-service disease, injury, or event. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.