Case 24001081

K. MILLIKAN · 2024 · Case ID: 24001081

MIXED

Summary

The veteran, who served from August 2005 to May 2007 and again from January 2011 to January 2012, including service in Iraq in 2011, appeals the denial of service connection for allergic rhinitis and the effective date for a 10 percent rating for a painful right shoulder scar. The veteran testified that the scar was painful since the date of service connection, July 6, 2017, and sought the 10 percent rating from that date. The Board found the veteran's report of pain credible, noting prior indications of pain, and granted the 10 percent rating for the painful scar effective July 6, 2017. For allergic rhinitis, the Board found presumptive service connection warranted based on the veteran's service in Iraq in 2011 and current diagnoses of rhinitis from VA examinations. The Board remanded claims for a chronic ear disability including otitis externa, pes planus, and the effective dates for right and left acromioclavicular joint separation and degenerative arthritis, ordering new VA examinations and opinions to determine the nature, etiology, and service connection of these conditions, including whether they preexisted service or were aggravated during service.

Rationale

Veteran credibly reported pain; Pain indicated on August 6, 2018 examination; Granted 10 percent rating from July 6, 2017

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-46 430

Full Decision Text

Citation Nr: 24001081
Decision Date: 01/08/24 Archive Date: 01/08/24

DOCKET NO. 18-46 430
DATE: January 8, 2024

ORDER

Entitlement to an effective date of July 6, 2017 for a 10 percent rating for painful scar, post right shoulder surgery is granted.

Service connection for allergic rhinitis is granted.

REMANDED

Whether new and material evidence has been received to reopen the claim of service connection for status post right tibia fracture is remanded.

Entitlement to service connection for a chronic ear disability including otitis externa is remanded.

Entitlement to service connection for pes planus is remanded.

Entitlement to an effective date earlier than July 6, 2017 for a 20 percent evaluation for right acromioclavicular joint separation is remanded.

Entitlement to an effective date earlier than July 6, 2017 for a 10 percent evaluation for left acromioclavicular joint degenerative arthritis is remanded.

FINDINGS OF FACT

1. The Veteran's claim of service connection for painful scar, post right shoulder surgery, was received July 6, 2017, and his scar was credibly painful at that time; a 10 percent rating is warranted from July 6, 2017.

2. There is a current diagnosis of rhinitis.

3. The Veteran served in Iraq in 2011.

CONCLUSIONS OF LAW

1. A 10 percent rating for painful scar, post right shoulder surgery, is warranted from July 6, 2017. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.118, Diagnostic Code 7804.

2. The criteria for entitlement to service connection for rhinitis are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.317, 3.320.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran service on active duty from August 2005 to May 2007 and from January 2011 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the Board of Veterans' Appeals (Board) in November 2020. At that time, he clarified that he was seeking an earlier effective date for the 10 percent rating for the right scar, but not a higher rating.

Painful Scar, Post Right Shoulder Surgery

On July 6, 2017, the Veteran filed his intent to submit a claim of service connection for right shoulder scar, which was then received in August 2017. The Veteran reported that it was painful. On the October 2017 examination, the examiner did not note pain, so the RO, as noted, granted service connection for right shoulder scarring, but assigned a noncompensable rating from July 6, 2017. The Veteran was subsequently examined August 6, 2018, at which time pain was indicated. A separate 10 percent rating for painful scar was then assigned. It is unclear why the RO granted this separately. At his Board hearing, the Veteran reported that the pain was present since the date of service connection, July 6, 2017, and that he was seeking the 10 percent rating from that date. The Board finds that the Veteran credibly reported the pain, and had previously indicated pain on his claim of service connection. Accordingly, a 10 percent rating is warranted from July 6, 2017.

Allergic Rhinitis

At the November 2020 Board hearing, the Veteran asserted that his sinus disorder began during active duty. Although service connection was recently granted for this disorder, the issue was already on appeal prior to the effective date assigned. Accordingly, the Board addresses the issue below.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a link between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F
. Although service connection was recently granted for this disorder, the issue was already on appeal prior to the effective date assigned. Accordingly, the Board addresses the issue below.

Presumptive service connection is authorized for certain chronic respiratory diseases, to include asthma, rhinitis, and sinusitis, as due to exposure to particulate matter for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War (from August 2, 1990. to the present), or in Afghanistan, Syria, Djibouti, and/or Uzbekistan on or after September 19, 2001. 38 C.F.R. § 3.320(a). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2).

The Board finds that presumptive service connection is warranted. First, the Veteran's service personnel records show that he served in Iraq in 2011, which meets the definition of Southwest Asia theater of operations during the Persian Gulf War. Second, 2012 and 2023 VA examination reports contain a diagnosis of rhinitis. Accordingly, as explained above, the criteria for service connection for rhinitis are met on a presumptive basis. 38 C.F.R. § 3.320.

REASONS FOR REMAND

Remaining Issues on Remand

In this case, subsequent to the Veteran's 2018 Statements of the Case (SOCs), years of additional evidence was received. It appears that other issues were being adjudicated in the interim, and a Supplemental Statement of the Case (SSOC) was never issued. When the Agency of Original Jurisdiction (AOJ) receives additional evidence not submitted by the Veteran prior to transfer of the appeal to the Board, the evidence must be forwarded to the Board if it has a bearing on the appellate issues. 38 C.F.R. § 19.37 (1). Here, some of the new evidence identified above has not been submitted by the Veteran. Rather, it has been generated by VA. Accordingly, an automatic waiver of AOJ consideration cannot be applied. 38 U.S.C. § 7105(e).

With regard to the service connection issues remaining on appeal, the matters of current disability are relevant. As such, the Board finds that at this juncture, and in taking into consideration the Veteran's testimony, additional VA examination(s) and opinion(s) should be obtained.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA ear examination to determine the nature and etiology of any current ear disability. The examiner should review the record prior to examination. The examiner should review the record and opine whether the likelihood is at least approximately balanced or nearly equal, if not higher, that any current ear disability including otitis externa had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

2. Schedule the Veteran for a VA right leg examination to determine the nature and etiology of any current right leg disability, status post right tibia fracture. The examiner should review the record prior to examination. The examiner should provide an opinion as to the following questions:

(a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a right tibia fracture defect, infirmity, or disorder that preexisted his military service.

(b) If there is clear and unmistakable evidence that the Veteran had a preexisting right tibia fracture defect, infirmity, or disorder at the time of his service entrance, is there evidence that the Veteran's preexisting right tibia fracture disorder increased in severity (worsened) in service;

(c) If the preexisting right tibia fracture defect, infirmity, or disorder increased in severity in service,
The examiner should review the record prior to examination. The examiner should provide an opinion as to the following questions:

(a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a right tibia fracture defect, infirmity, or disorder that preexisted his military service.

(c) If the preexisting right tibia fracture defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in severity during service was due to the natural progress of the right tibia fracture disorder; please identify with specificity any evidence that supports this finding;

(d) If the examiner determines that the Veteran did not have a right tibia fracture defect, infirmity, or disorder that preexisted service, whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran currently has a right tibia fracture disorder that had its onset in, or is otherwise etiologically related, to his military service.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

3. Schedule the Veteran for a VA pes planus examination to determine the nature and etiology of any pes planus. The examiner should review the record prior to examination. The examiner should provide an opinion as to the following questions:

(a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a pes planus defect, infirmity, or disorder that preexisted his military service.

(b) If there is clear and unmistakable evidence that the Veteran had a preexisting pes planus defect, infirmity, or disorder at the time of his service entrance, is there evidence that the Veteran's preexisting pes planus disorder increased in severity (worsened) in service;

(c) If the preexisting pes planus defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in severity during service was due to the natural progress of the pes planus disorder; please identify with specificity any evidence that supports this finding;

(d) If the examiner determines that the Veteran did not have a pes planus defect, infirmity, or disorder that preexisted service, whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran currently has a pes planus disorder that had its onset in, or is otherwise etiologically related, to his military service.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

4. Readjudicate.

K. MILLIKAN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Connolly

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.

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