Citation NR: 9604086 Decision Date: 02/23/96 Archive Date: 03/07/96 DOCKET NO. 94-01 435 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for rhinitis. 3. Entitlement to service connection for asthma. 4. Entitlement to service connection for a skin disorder, to include chloracne. 5. Entitlement to service connection for duodenal ulcer disease. 6. Entitlement to service connection for a low back disability. 7. Entitlement to an increased (compensable) disability rating for bilateral defective hearing. 8. Entitlement to an increased (compensable) disability evaluation for postoperative residuals, deviated nasal septum. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran served on active duty from January 1965 to January 1985. This matter is before the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the veteran’s correspondence to the RO in June 1991 and June 1993, viewed together, refer to chloracne and porphyria cutanea tarda as being claimed as residuals of herbicide (Agent Orange) exposure. In August 1994, the veteran's claims folder was returned to the RO for development of a claim for residuals of herbicide (Agent Orange) exposure. A handwritten annotation, dated in September 1994, appearing on a May 1993 rating decision indicates that a review of the claim under current provisions effective in February 1994 had been accomplished. However, his claims folder was returned to the Board later 1994, without any record of the decision, or notice to the veteran thereof, on file. In view of the foregoing, and to conserve adjudication resources and ensure due process, the Board will defer consideration at this time of the claims for service connection for chloracne and porphyria cutanea tarda as residuals of herbicide (Agent Orange) and on a basis unrelated to that exposure. Upon review of the veteran’s contentions in December 1991 and June 1993 correspondence to the RO regarding his skin disorder, the Board has styled the certified issue of service connection for chloracne as service connection for a skin disorder to include chloracne. Although the most recent certification includes only the issue of entitlement to service connection for sinusitis, there is a previous certification on file which addresses the remaining claims for service connection. These issues were noted in VA Forms 1-646 filed in February 1992 and December 1993. In addition, the issues of entitlement to increased ratings for bilateral defective hearing and postoperative residuals of deviated nasal septum have been developed for appellate consideration. However, the issues were not certified for appellate consideration and have not been addressed by the veteran’s representative. The matters of service connection for a skin disorder other than chloracne, rhinitis, asthma, duodenal ulcer and a low back disorder are discussed in the remand that follows this decision. This decision is limited to the issues of service connection for sinusitis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that sinusitis was shown during service and he has had sinus problems since service. He assets that Nash v. Brown, 6 Vet.App. 1 (1993), supports his claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not presented evidence sufficient to establish a well-grounded claim for service connection for sinusitis. FINDING OF FACT The claim of service connection for sinusitis is not plausible as the record does not show a diagnosis of sinusitis at any time since service. CONCLUSION OF LAW The claim for service connection of sinusitis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Concerning sinusitis, the basic requirements to establish a well-grounded claim for service connection require that there is competent evidence of current disability; that is, a medical diagnosis, that there is evidence of incurrence or aggravation of such disability during service which may be established by lay or medical evidence and that there is evidence of a nexus between the inservice injury or disease and a current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Reviewing the claim against this legal standard, the Board finds that the veteran's claim for service connection must fail as there is no competent medical evidence establishing that sinusitis currently exists. Therefore, the claim for service connection of sinusitis cannot be well grounded. The Board recognizes that sinusitis was mentioned in service in August 1975, March 1982 and January 1983 evaluations for respiratory complaints and that on the latter occasion a sinus X-ray was interpreted as showing some haziness and mucoperiosteal thickening in the right maxillary sinus that “could” be related to “repeated episodes of maxillary sinusitis.” However, a repeat study in March 1983 did not confirm the earlier finding. In addition, VA examinations in March 1991 and October 1992 did not confirm sinusitis, as normal sinuses were reported on both evaluations. Further, an April 1995 report submitted by William A. Sellars, M.D., regarding the veteran’s respiratory disorder did not include a diagnosis of sinusitis. Though the veteran stated in 1991 correspondence that he was receiving treatment through the VA for sinusitis, the clinical records do not confirm such treatment. In view of the foregoing, the veteran’s claim for service connection of sinusitis must, therefore, be dismissed. Regarding the application of Nash v. Brown, 6 Vet.App. 1 (1993), it must be pointed out that in Nash there was independent medical evidence linking a current disability to service. Neither of these critical facts are present in the veteran’s claim. ORDER Evidence of a well-grounded claim not having been submitted, the claim of entitlement to service connection for sinusitis is dismissed. REMAND Regarding a deviated nasal septum, the veteran contends, in essence, that he has difficulty breathing. With respect to the veteran's claim of service connection for rhinitis and asthma, the record reflects that he was seen on many occasions in service. The service medical records include a private medical evaluation during 1971 that reports a history of respiratory complaints that predated the veteran's military service. Diagnoses reported on a March 1991 VA examination were allergic rhinitis and history of childhood asthma. On reexamination in February 1993, an examiner reported childhood bronchial asthma that reactivated in service with recurrent mild intermittent symptoms. A hearing officer denied the claim for service connection, essentially finding that the rhinitis and asthma were not aggravated by active service. This determination, however, appears to have been made without benefit of an independent medical opinion. The principles of service connection for allergic disorders such as asthma are set forth at 38 C.F.R. § 3.380 (1995) and require that determination of entitlement to service connection based on either incurrence or aggravation must be made on the whole evidentiary showing. In view of the facts of this case, and the decision of the United States Court of Veterans Appeals in Crowe v. Brown, 7 Vet.App. 238 (1994), the Board finds that additional development is required in order to provide a record upon which an informed determination can be made. In addition, the Board notes that an April 1995 report from Dr. Sellars refers to allergic rhinitis and asthma. The report is pertinent to the claim and must be considered by the RO in its evaluation of the claim. Regarding the claim of service connection for duodenal ulcer disease, the Board observes that the veteran has been granted service connection for gastritis, apparently on the basis that it was the result of medication prescribed for a service-connected disability. In June 1991, the veteran advised the RO that he was currently being treated for a duodenal ulcer by a private physician and that the duodenal ulcer was attributed to medication prescribed for service- connected chondromalacia. On file is a March 1991 statement from James Mullowney, D.O., reporting that the veteran has been given a "tentative" diagnosis of gastritis/duodenitis. However, a complete record of treatment has not been obtained. Such records are probative of this matter and are necessary and relevant for a full and fair adjudication of the claim. Robinette v. Brown, 8 Vet.App. 69 (1995). Regarding a low back disability, the veteran has asserted that the disorder is related to an injury he sustained in service when he was pinned against a wall by a forklift vehicle. The record shows such injury occurred in late 1982 and that abdominal surgery was performed. A complaint of right back pain is noted in the hospital record several days after surgery. In March 1991, a VA examiner reported a diagnosis of intermittent low back pain resulting from an injury received as described by the veteran. It appears from the narrative of the March 1991 VA examination, that the claims folder was not available to the examiner for review. The Board also notes that in March 1991, the examiner reported osteophyte formation at several lumbar vertebrae although the radiographic interpretation was of a normal lumbar spine. On reexamination in February 1993, the examiner reported a diagnosis of history of arthritis of the lumbar spine with some limitation of forward flexion. An X-ray was interpreted as showing a minimal narrowed L4-L5 disc. The examiner noted that the claims folder was not available for review.. Regarding the veteran's claim for a skin disorder, to include acne and chloracne, the Board must point out that in a June 1993 statement regarding his skin disability, the veteran referred to various skin rashes and irritations and eruptions during service. The service medical records do show that he was seen on a number of occasions for skin complaints, with a generalized rash deemed of allergic etiology reported in 1982, and nummular eczema in mid-1983 and early 1984; tinea cruris and folliculitis were also reported in 1980. Since service, the veteran has submitted a record of treatment in February 1990 for a follicular rash of the thighs and upper arms. However, the source of the treatment report is not identified. A VA examiner, in October 1992, provided an impression of acneform eruption of the face, present since 1966, which was consistent with a history the veteran reported to the examiner. Minimal acneform lesions were noted in 1993 by an ear, nose and throat examiner and, in April 1995, Dr. Sellars reported contact dermatitis of the right arm. In view of the record of skin complaints in service and subsequent to service, it appears to the Board that a review of the claim by a dermatologist, with access to a thoroughly developed record, is advisable. The Board notes further that the veteran has asserted that service medical records containing a record of pertinent treatment are not of record. After reviewing the service medical records, the Board must point out that few medical records are on file for the veteran’s service prior to 1969. A September 1992 RO development action was to include a request for these records but it does not appear that the action was completed. It should also be noted that the issues of entitlement to an increased rating for bilateral defective hearing and postoperative residuals of a deviated nasal septum have not been certified for appellate consideration and have not been addressed by the veteran’s representative. In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should contact the National Personnel Records Center and request that a search be conducted for any additional service medical records for the veteran’s active service from January 1965 to January 1969. If 2. The RO should contact the veteran and request that he provide the names and addresses of all VA and non-VA health care providers who have treated him at any time since service for rhinitis or asthma, postoperative residuals of a deviated nasal septum, any skin disorder, ulcer disease, hearing loss, or a low back disorder. After obtaining the appropriate authorization from the veteran to obtain these records, the RO should request all records that have not been previously obtained. This should include the complete record of treatment that the veteran has received through the VA. 3. Thereafter, the veteran should be afforded a VA orthopedic examination to determine the current nature and extent and etiology of any low back disability found. The claims folder must be made available to the examiner for review in conjunction with the examination. All indicated studies should be performed. The examiner, after review of the claims folder, should be asked to provide an opinion regarding the degree of probability that any low back disability found is related to the history of back injury reported by the veteran. The examiner should provide the rationale for all opinions and conclusions expressed. 4. Thereafter, the veteran should be scheduled for a VA examination by a specialist in ear, nose and throat disorders, if available, to determine the time of onset, etiology, and current manifestations of the veteran's upper respiratory disability, to include the status of his postoperative residuals of deviated nasal septum. The examiner is requested to review the claims folder and provide an opinion regarding the following questions: (1) Did the veteran have asthma or rhinitis prior to entering service in 1965? (2) If so, was there a pathological worsening of the disease during service, and, if so, is there clear and unmistakable evidence that the increase was due to the "natural progress" of the disease? (3) What level of interference with breathing space, if any, do the veteran’s postoperative residuals of a deviated nasal septum cause? The examiner should provide the rationale for all opinions and conclusions expressed. The claims file should be made available to the examiner prior to the examination, if possible. 5. The veteran should be scheduled for a VA gastrointestinal examination to determine the etiology and current manifestations of ulcer disease, if found. The examiner is requested to review the claims folder and provide an opinion regarding the degree of probability any ulcer disease found is related to medication that the veteran has been prescribed for a service-connected disability. The examiner should provide the rationale for all opinions and conclusions expressed. 6. The veteran should be scheduled for a VA dermatology examination to determine the nature, extent and etiology of any skin disorder found. The examiner is requested to review the claims folder and provide an opinion regarding the degree of probability any skin disorder found is related to the skin complaints reported during service. The examiner should provide the rationale for all opinions and conclusions expressed. 7. The RO should then review the record and ensure that all the above actions have been completed to the extent possible. If not, remedial action should be instituted. When the RO is satisfied that the record is complete and the examinations adequate for rating purposes, the issues under consideration should be readjudicated. If any benefit sought on appeal is not granted to the veteran's satisfaction, a supplemental statement of the case should be furnished to the veteran and his representative, and they should be given an opportunity to respond. Thereafter, the claim should be returned to the Board for further review. V. L. JORDAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -