Citation Nr: 1316827 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 05-20 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a respiratory disability, to include sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from August 1993 to September 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In February 2011, the Veteran testified before the undersigned in Washington, D.C. A transcript of the hearing is of record. In August 2011 and December 2012 the Board remanded the issue for additional development. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a respiratory disability, to include sinusitis, that is related to service. CONCLUSION OF LAW A respiratory disability, to include sinusitis, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in December 2001 and August 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The issue was readjudicated in an April 2013 supplemental statement of the case. VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate this claim, including requesting information from the appellant regarding pertinent medical treatment she may have received and obtaining such records, as well as affording her VA examinations during the appeal period. The Veteran was afforded pertinent VA examinations in May 2002, November 2011 and January 2013. The examiners provided sufficient detail for the Board to make a decision and their reports are deemed adequate with respect to this claim. As noted, the appellant provided testimony to the Board in February 2011, and at that hearing she was provided notice of the elements pertinent to her service connection claim and ensured that all pertinent evidence was on file or would be submitted. The Veteran's contentions were discussed and are part of the transcript. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. In finding the examinations of record to be sufficient the Board acknowledges the April 2013 argument that while the January 2013 VA examiner reviewed the claims file, the examiner failed to indicate whether the appellant's Virtual VA record was reviewed. A review of the Veteran's Virtual VA folder, however, reveals that it does not contain any evidence not already located it his claims folder. Thus, the Board finds that there has been substantial compliance with the Board's December 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Hence, VA has fulfilled its duty to notify and assist the appellant, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts The Veteran's service treatment records show that she complained of nasal congestion in November 1993 at which time she was assessed as having pharyngitis/laryngitis. In February 1994, she complained of sinus congestion and a sore throat and was assessed as having an upper respiratory infection. In August 1994, she complained of a sore throat and stuffy nose and was assessed as having a mild upper respiratory infection. She also complained of sinus problems and chest congestion for one week in June 1999. In March 2000 and March 2001, she was treated for upper respiratory infections. She reported on a July 2001 Report of Medical History that she had yearly sinus problems and congestion. In November 2001, the Veteran filed a claim for service connection for sinusitis. On file is a January 2002 emergency room report from Florida Hospital reflecting a diagnosis of right maxillary sinusitis. At a VA general examination in May 2002, the Veteran reported having recurrent sinus pain. She further reported having x-rays and having been told that she had sinusitis. Her present symptoms consisted of sinus pain when flying and no further acute sinus condition. No x-rays were taken at that time. The diagnosis was chronic rhinitis with history of sinusitis. On file is a May 2002 private treatment record which reflects the Veteran's complaint of sinus headache and congestion since earlier in the week. She was noted to be a new patient with complaints of frequent sinus problems exacerbated by frequent air travel. She reported a history of frontal sinus problems, and having been treated two weeks earlier with Amoxil for 10 days with complete resolution of symptoms. However, she went on to report that symptoms returned one to two weeks later. She denied having seasonal allergies, but did complain of increased sinus problems during season changes. She was assessed with acute sinusitis and a history of chronic sinusitis. An October 2004 private record reflects that the Veteran complained of a sore throat, sinus problems, and ear pain. She reported that the upper respiratory symptoms began approximately four days earlier. The predominant symptoms were noted to be located in the head, ears, sinuses and throat. She was assessed as having acute nasopharygitis (common cold). On file is an April 2006 private treatment record showing that the Veteran was complaining of a sinus infection the prior week. She complained of congestion/sinus pain and cheek pain. She was assessed as having acute sinusitis. The Veteran asserted on VA Form 21-4142, dated in November 2006, that she had to go to the emergency room on two occasions for severe pain while on travel in January/February 2002. A January 2009 VA consultation record for the Veteran's ears reflects her report of a history of occasional sinus infections. She was given an impression of Eustachian tube dysfunction. Etiology not determined. The Veteran testified in February 2011 that she was seen twice in 2002 in a hospital emergency room while on travel for the government. She said she could not remember what hospital it was, but she would try to find out. She denied being treated at that time for sinusitis, but reported self-treating with Zicam and nasal saline sprays. She reported constant, year round problems with nasal drip. At a November 2011 VA otolaryngology examination the Veteran reported the onset of a pressure sensation in her face and cheeks in 1993. She denied any history of nasal trauma, as well as having any consultation with an otolaryngologist while on active duty or since. She denied receiving any antibiotics for her symptoms while on active duty. She did report that after service she was prescribed Amoxil in January 2002, Augmentin in May 2002, and Ketac in April 2006. She denied a history of allergy symptoms. Sinus imaging studies showed normal paranasal sinus radiographs. A fiberoptic nasal endoscopy revealed a normal left middle meatus and no purulence or polyps. The nasopharynx was normal including the Eustachian tube orifice. On the right there was septal spur projecting into the right inferior turbinate. The middle meatus and nasopharynx were normal, and there were no purulence or polyps. The clinical impression was facial pain; no evidence of sinusitis as the etiology. The examiner remarked that the Veteran had never been diagnosed as having sinusitis by an otolaryngologist and the first nasal endoscopy was performed in November 2011. He opined that therefore any current sinusitis was not due to or related to active service. He explained that there was a "100% assurance of nonrelationship." The examiner suspected that any problems that the Veteran had on active duty were probably viral rhinitis and, as noted, her present sinus series was normal. He explained that if she had been having sinusitis for the past 10-20 years, there would be some evidence of abnormality on the sinus series. In January 2013, the Veteran underwent another VA otolaryngology examination by the same otolaryngologist who performed the November 2011 examination. Sinus x-rays were taken and were again normal. An endoscopy revealed the nasal septum to be deviated to the right. The examiner opined that the claimed disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that he had reviewed the Veteran's claims file completely and noted that she did not receive any antibiotics in service. He also noted that the appellant's records showed several visits in service related to nasal congestion and/or rhinorrhea with diagnoses of upper respiratory infections. He relayed the Veteran's report that her last "sinus infection" was two to three years earlier and that her main symptom at the time was coughing up green phlegm. The clinical impression was that the Veteran did not have chronic sinusitis as she had normal sinus x-rays, and her history was not compatible with chronic bacterial sinusitis. The examiner opined that the appellant's present respiratory disorder was not related to her military service. He noted that her main complaint presently was a phlegm sensation in her throat which was not related to her sinuses. He went on to opine that the symptoms the Veteran was experiencing on active duty were viral rhinitis which she did not presently describe. The examiner restated his opinion in an January 2013 addendum. He noted reviewing the Veteran's claims file and that she was never diagnosed in-service as having sinusitis, but she had multiple diagnoses of upper respiratory infections and rhinitis in service. The examiner noted that sinus x-rays in January 2011 and January 2013 were both completely normal, indicating no evidence of any chronic sinus condition. He said that the appellant's complaints were more a phlegm sensation in her throat which was not sinus related. He noted that she denied facial pain, nasal obstruction and rhinnorhea. The otolaryngologist noted performing the nasal endoscopy and while the Veteran had a septal deformity, there was no evidence of any purulence or polyps in either nasal cavity, which would be indicative of sinus disease. III. Law and Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions in 3.303(b) apply only to listed chronic conditions in 38 C.F.R. § 3.309.). As noted, the Veteran's service treatment records show that she was treated on several occasions for upper respiratory infections and her complaints included sinus problems. Post service medical evidence reflects diagnoses of sinusitis as early as January 2002, in addition to chronic rhinitis in May 2002, and acute sinusitis in May 2002 and April 2006. In light of the Veteran's inservice respiratory complaints and treatment and postservice respiratory complaints and treatment, VA afforded the Veteran two examinations. Both VA examination reports militate against the Veteran's claim. As noted, the VA examiner in January 2011 performed sinus x-rays as well as a fiberoptic nasal endoscopy which revealed normal findings, except for a septal spur projecting into the right interior turbinate on endoscopy. The Veteran was not found to have sinusitis, but rather was diagnosed as having facial pain. The examiner remarked that the Veteran had never been diagnosed as having sinusitis by an otolaryngologist. He opined that any current sinusitis was not due to or related to service and that there was a "100% assurance of nonrelationship". He explained that the Veteran's inservice respiratory problems were viral in service and that if she had been having sinusitis for the past 10-20 years, there would be some evidence of abnormality on the sinus series. Similar remarks were made by the same examiner in January 2013 who again examined the Veteran and performed repeat x-rays with normal results. Another endoscopy was performed which showed that the nasal septum was deviated to the right. The examiner opined that it was less likely than not that sinusitis was incurred in or caused by service. The examiner noted that the Veteran had never received antibiotics in service and her symptoms in service were viral rhinitis; not what she presently described. The otolaryngologist opined that the appellant's present respiratory disorder was not related to service. He explained that her normal sinus x-rays and her history was not compatible with chronic bacterial sinusitis. As to the Veteran's statements that she has a respiratory disability, namely sinusitis, related to service, the appellant is certainly competent to report problems with her sinuses. A diagnosis of a respiratory disorder such as sinusitis, or a finding that there has been a continuity of respiratory symptoms due to a disorder such as sinusitis requires medical training which the appellant as a lay person does not possess. In contrast to her lay opinions the specific and reasoned opinion of the otolaryngologist in November 2011 and January 2013 clearly oppose finding a nexus between any current respiratory disorder and service. Hence, the preponderance of the evidence is against finding entitlement to service connection for a respiratory disability, to include sinusitis. 38 U.S.C.A. § 1110. The claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for a respiratory disability, to include sinusitis, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs