Citation Nr: 0007593 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-16 014A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a chronic nasal infection. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from April 1945 to December 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1998 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied the appellant's claim seeking entitlement to service connection for a chronic nasal infection. FINDING OF FACT The claims file contains evidence of a current chronic nasal infection, an inservice nasal condition, and of a plausible relationship between the current nasal infections and service. CONCLUSION OF LAW The claim of entitlement to service connection for a chronic nasal infection is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Generally, a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for entitlement to service connection is well grounded when there is (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. at 506. Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. In determining whether a claim is well-grounded, the supporting evidence is presumed to be true. King v. Brown, 5 Vet. App. 19, 21 (1993). In this case, the Board concludes that the appellant's claim for service connection for a chronic nasal infection is well grounded. The Board finds evidence of an inservice nasal condition. The appellant's service medical records indicate he was hospitalized for nasopharyngitis in 1946. The claims file also contains competent evidence that the appellant currently has a chronic nasal infection. This is shown by a March 1998 private physician's statement. Finally, the Board finds competent medical evidence of a relationship, or nexus, between the current chronic nasal infection and service. Specifically, the November 1998 private physician's letter indicating that there is a good chance that the current nasal infections are related to nasopharyngitis suffered in service. In light of the above, the Board concludes that the appellant has presented a well grounded claim for entitlement to service connection for a chronic nasal infection. 38 C.F.R. § 3.303 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Therefore, it has a duty to assist the veteran with the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). ORDER The claim of entitlement to service connection for a chronic nasal infection is well grounded, and, to that extent, the appeal is granted. REMAND Because the claim of entitlement to service connection for a chronic nasal infection is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C. A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Here, the Board finds that further evidentiary development is needed prior to appellate review. The Court has held that the "fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination . . . so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see Allday v. Brown, 7 Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (The duty to assist includes providing the veteran a thorough and contemporaneous medical examination when needed). When the medical evidence is inadequate, the VA must supplement the record by seeking a medical opinion or by scheduling a VA examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); see 38 C.F.R. § 4.70 (1999). In this case, the Board finds that the appellant has not been provided a VA examination of his nasal and sinus infections. In addition, from the medical evidence currently of record, the Board is not able to ascertain the relationship, or nexus, between the appellant's current condition and his service. Therefore, the Board finds that a VA examination is needed in order to provide a record upon which a fair equitable, and procedurally correct decision on the appellant's claim can be made. 38 C.F.R. §§ 3.326, 3.327 (1999). Finally, the Board finds that the possible applicability of the Court's recent decision in Savage v. Gober, 10 Vet. App. 488 (1997), should be addressed at the RO level. VA regulations provide that subsequent manifestations of a chronic disease or injury shown as such inservice, may be service connected, and that, if chronicity is not shown in service, that evidence of post-service continuity of symptomatology may be employed to show that an inservice disease or injury was chronic. 38 C.F.R. § 3.303(b) (1999). In Savage, the Court held that evidence of continuity of symptomatology need not be recorded medical evidence noted in service, but may, in certain circumstances, be post-service, lay evidence. Savage, 10 Vet. App. at 496-97 (citations omitted). However, an adequate showing of continuity of symptomatology relieves the veteran only of the need to show medical nexus evidence between a current disability and one shown in service; medical evidence is still required to relate the said symptomatology to a current disability, unless the relationship is one as to which a lay person's observation is competent. Id. In light of the above, in order to assure the appellant full due process and to satisfy VA's duty to assist, this case must be REMANDED back to the RO for the following development: 1. The RO should contact the appellant and provide him the opportunity to identify all sources of treatment received for nasal and sinus conditions since service, and to either submit such records himself or furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. All records obtained should be added to the claims folder. 2. Following completion of the above development, the RO should schedule the appellant for a VA examination by an appropriate specialist. The RO should notify the appellant of the time, place, and date of said examination, and make part of the claims folder the notification letter and any other documents verifying its notice to the appellant. The claims folder must be made available to the examiner prior to the examination so that it may be reviewed for pertinent aspects of the appellant's medical history. Review of service medical records, and all subsequent medical records is vital. The purpose of the examination is: (1) to determine the current nature of the appellant's nasal and sinus condition; and (2) to render a medical opinion as to whether any current condition is more likely than not casually related to the appellant's inservice nasopharyngitis, including whether the current pathology is a chronic disorder that had an onset during service. All clinical findings should be reported in detail. Such tests as the examining physician deems necessary should be performed. The report of the examination should include a complete rationale for all opinions expressed and should be made part of the claims folder. 3. Thereafter, the RO should review the claims folder and ensure that the foregoing development has been conducted and completed in full. Specific attention is directed to the examination report to ensure that it is in compliance with the directives of this REMAND. If a report is deficient in any manner, it must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."); see also Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the RO should review the record, including all newly developed evidence, to determine if any change is warranted in its prior decision denying the appellant's claim of entitlement to service connection for a chronic nasal infection. The applicability for Savage v. Grober, 10 Vet. App. 488 (1997), should be considered. 5. If the determination remains adverse to the appellant, he and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable period of time in which to respond. The Supplemental Statement of the Case should provide any additional pertinent laws and regulations and rationales for the decision reached. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested adjudication. The appellant needs to take no action until so informed. The veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to attend a scheduled VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals