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January 5, 2022

Single Judge Application; Payne v. Wilkie, 31 Vet.App. 373, 390 (2019) (“To trigger VA’s duty to provide a reexamination [in an increased rating claim], ‘the [appellant] must come forward with at least some evidence that there has in fact been a material change in his or her disability’ since the prior examination.” (second alteration in original) (quoting Glover v. West, 185 F.3d 1328, 1333 (Fed. Cir. 1999))).;

Filed under: Uncategorized — Tags: — veteranclaims @ 9:44 pm

Designated for electronic publication only
No. 19-6773
Before JAQUITH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: U.S. Marine Corps veteran Woody Connor appeals a June 7, 2019, Board of Veterans’ Appeals (Board) decision that denied service connection for vertigo and an initial compensable rating higher than 10% for a deviated nasal septum.1 Record (R.) at 5-11. Because the appellant has failed to show any error in the Board’s determination regarding his deviated nasal septum rating, that portion of the decision is affirmed. However, because the Board provided inadequate reasons or bases for denying service connection for vertigo, that matter is remanded. I. BACKGROUND Mr. Connor served from July 1953 to July 1956. R. at 449. During service he received treatment after being “[j]umped by other men,” and he was diagnosed with a “deflected nasal septum.” R. at 348. His separation examination noted “hypertrophied turbinates” as a result of a nose fracture. R. at 331.
1 The Court does not have jurisdiction over the claims related to service connection for sinusitis and initial compensable disability ratings for bilateral hearing loss and headaches because the Board remanded those matters. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997).
In December 2013, the veteran relayed to a VA physician that he believed his in-service injury to his nose “makes [his] vertigo worse.” R. at 395. In January 2014, the appellant filed a claim seeking service connection for vertigo and residuals of his broken nose. R. at 440-41. In connection with this claim, VA completed a disability benefits questionnaire (DBQ) in January 2015. R. at 188-94. Therein, the veteran explained having headaches and nasal congestion as well as a runny nose two to three times a week since 1975. R. at 188. The examiner diagnosed the veteran with a deviated nasal septum caused by in-service trauma. R. at 188-90. Following this exam, VA granted the appellant service connection for a deviated nasal septum and awarded a 10% rating for that condition. 150-51. However, it denied service connection for vertigo. Id. The appellant filed a Notice of Disagreement (NOD) with that decision, claiming that he should receive an increased rating for his deviated nasal septum and service connection for vertigo. R. at 119-21. VA continued denying his claims in a November 2015 Statement of the Case, R. at 86-111, which the appellant appealed to the Board in December 2015. R. at 79-81. In May 2019, the veteran submitted medical literature indicating that “sinusitis can be the result of a deviated septum.” R. at 20. The decision now on appeal was issued by the Board in June 2019. R. at 5-15. Regarding the vertigo claim, the Board denied service connection because it found that there was no nexus between the condition and service. R. at 8-10. It also denied an increased rating for the veteran’s deviated nasal septum because his medical records evidence “complete obstruction of the nasal passage [only] on the right side due to the deviated septum,” which is contemplated by his 10% rating. 38 C.F.R. § 4.97, Diagnostic Code (DC) 6502 (2018).

II. ANALYSIS Mr. Connor argues in part that in light of his statements within the December 2013 VA exam, the Board erred by failing to address whether his vertigo is secondary to his deviated nasal septum. Appellant’s Brief (Br.) at 10-11. He also argues that his deviated nasal septum claim should have been remanded because it is inextricably intertwined with the remanded sinusitis claim. Id. at 11-12. The Secretary disagrees and contends that the December 2013 medical note “indicates Appellant’s report that his vertigo was caused by the in-service broken nose” and thus did not indicate aggravation, but rather merely showed that the conditions had the same cause.
Secretary’s Br. at 10. Additionally, he argues that there has not been enough evidence presented to show that the deviated nasal septum claim is inextricably intertwined with the remanded sinusitis claim. Id. at 11-13. In every case, the Board has a general obligation to support its determination “with an adequate statement of reasons or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court.” Smiddy v. Wilkie, 32 Vet.App. 350, 356 (2020). The assignment of a disability rating is a factual finding that the Court reviews under the “clearly erroneous” standard of review. Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of fact is “clearly erroneous” when the Court, after reviewing all the evidence, “‘is left with the definite and firm conviction that a mistake has been committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Additionally, “if the Court determines, after reviewing the record in its entirety, that the Board’s finding of fact is supported by a plausible basis, ‘the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.'” Taylor v. McDonald, 27 Vet.App. 158, 165 (2014) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985)). A deviated nasal septum is generally rated under DC 6502, 38 C.F.R. § 4.97, which grants a 10% rating for the condition if a veteran evidences a “50 [%] obstruction of the nasal passage on both sides or complete obstruction on one side.” Here, there is no evidence that Mr. Connor’s deviated nasal septum evidences symptoms different than those contemplated by the 10% rating under DC 6502. Moreover, the veteran does not argue that his deviated nasal septum has caused symptoms more severe than those described in the assigned DC. Instead, he only argues that the condition should have been remanded as inextricably intertwined with the other conditions the Board chose to remand.2 However, the appellant’s contentions do not satisfy the standard set by this Court for remanding matters as inextricably intertwined. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (explaining that a matter should be remanded as inextricably intertwined when development of one matter could have a “significant impact” on the other matter to such a level to “render any review by this Court of the decision [on the current claim] meaningless and a waste of
2 The Court notes that although the appellant begins his argument by citing to all three matters as being related to the deviated nasal septum claim, he only provides argument as to how development of the sinusitis claim “could lead to beneficial evidence regarding the [his] deviated nasal septum.” Appellant’s Br. at 12.
judicial resources.”). The appellant’s contention that remand is required because development of the sinusitis claim “could lead to beneficial evidence regarding [his] deviated nasal septum” is misplaced. Appellant’s Br. at 12. Remand is not required because there may be favorable evidence developed on a secondary claim; it is required only when development could have a significant impact on the current claim. Harris, 1 Vet.App. at 183. Pointedly, ascertaining the cause of Mr. Connor’s sinusitis is inconsequential to the issue at hand. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994) (“Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.”); see also Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). Simply put, appellant’s argument fails to show how development of his sinusitis claim could have a significant impact on whether he is entitled to an increased rating for his deviated nasal septum. Harris, 1 Vet.App. at 183; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). The additional arguments the appellant proffered arguing for an updated examination also fail to highlight remandable error. See Appellant’s Br. at 12-13. He has failed to assert, let alone point to any evidence showing, that an additional examination is likely to reveal an increase in disability. See Payne v. Wilkie, 31 Vet.App. 373, 390 (2019) (“To trigger VA’s duty to provide a reexamination [in an increased rating claim], ‘the [appellant] must come forward with at least some evidence that there has in fact been a material change in his or her disability’ since the prior examination.” (second alteration in original) (quoting Glover v. West, 185 F.3d 1328, 1333 (Fed. Cir. 1999))). The appellant has not provided any evidence that his disability has materially changed since his last examinations of record. Hilkert 12 Vet.App. at 151.
The Board, however, did commit remandable error related to the vertigo claim because it failed to address whether the condition was secondary to the appellant’s service-connected deviated nasal septum. See Barringer v. Peake, 22 Vet.App. 242, 244 (2008) (holding that the Court has jurisdiction to review whether the Board erred in failing to address a reasonably raised issue); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (requiring the Board address all issues explicitly raised by the claimant or reasonably raised by the record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Because the veteran’s statements within the December 2013 medical exam highlight a potential link between the appellant’s vertigo and his deviated nasal septum, the Board should have addressed secondary service connection for his vertigo. See R. at 395; see also 38 C.F.R. § 3.310 (2020); Bailey v. Wilkie, 33 Vet.App. 188, 201 (2021) (“‘VA’s duty
to maximize benefits requires it to exhaust all schedular alternatives,” including entitlement to secondary service connection, when evaluating a disability.” (quoting Morgan v. Wilkie, 31 Vet.App. 162, 164 (2019))). To the extent that there is any credence to the Secretary’s framing of the December 2013 medical note, no weight can be afforded to his contentions because it is the province of the Board to address favorable evidence in the first instance. Roberts v. Shinseki, 23 Vet.App. 416, 423 (2010) (explaining that the Board has a duty to weigh and analyze all the evidence of record (citing Burger v. Brown, 5 Vet.App. 340, 342 (1993))); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (explaining that the Court is not to conduct de novo factfinding but rather to remand to the Board for it to find facts in the first instance, subject to later review by the Court). It is also well established that the Secretary cannot provide his own post hoc rationalizations for why the Board did not address certain favorable evidence. See In re Sang Su Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.'” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).
The Board’s reasons and bases acknowledged that the veteran’s VA medical records reflect that he experiences vertigo and it is treated with a prescription antihistamine. R. at 7-9; see R. at 381, 404. Yet the Board denied service connection for vertigo and did not address service connection secondary to his deviated septum. The Board explained:
Reviewing the most relevant evidence of record, the medical evidence of record shows that the Veteran has complete obstruction of the nasal passage on the right side due to the deviated septum. See December 2014 VA examination report. The Veteran has not reported, and his treatment records do not indicate, any other manifestations or functional effects related to his deviated nasal septum.
R. at 11. But the veteran has reported, as his treatment records do indicate, another functional effect related to his deviated nasal septum: that his nasal condition makes his vertigo worse. R. at 395. The Board noted the veteran’s report without comment, and apparently did not consider it as a reflection of the observable symptomatology of the two conditions. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (“Lay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection.'” (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))). Nor did the Board address whether the lay evidence that his vertigo is in some way related to his service-connected nasal disability clears the low threshold for a VA medical examination pursuant to the factors set out in McLendon v. Nicholson,
20 Vet.App. 79, 81 (2006). We will therefore remand this matter for the Board to address this reasonably raised theory of entitlement. Tucker v. West, 11 Vet.App. 369, 374 (1998). On remand, the veteran is free to submit additional evidence and argument on the remanded matter, including his argument regarding direct service connection, and the Board is required to consider any such relevant evidence and argument. See Smiddy, 32 Vet.App. at 360; Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board must proceed with this remand expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims remanded by the Court). III. CONCLUSION Accordingly, that part of the June 7, 2019, Board opinion denying service connection for vertigo is SET ASIDE and REMANDED for further development consistent with this decision. However, the Board’s decision denying an increased rating for a deviated nasal septum is AFFIRMED.
DATED: April 30, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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