Citation Nr: 1446139 Decision Date: 10/17/14 Archive Date: 10/30/14 DOCKET NO. 10-42 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for chronic sinusitis. 2. Entitlement to service connection for skin disorders due to burns to chest, back, legs, and shoulders. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service from July 1980 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issues have been recharacterized to comport with the evidence of record. In January 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2014, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) regarding the skin disorders appeal. The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument. FINDINGS OF FACT 1. The evidence is in relative equipoise on the question of whether the chronic sinusitis is related to service. 2. The preponderance of the evidence is against the claim for service connection for skin disorders due to burns to chest, back, legs, and shoulders. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic sinusitis have been met. 38 U.S.C.A. §§ 1110, 1153, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2013). 2. The criteria for service connection for skin disorders due to burns to chest, back, legs, and shoulders have not been met. 38 U.S.C.A. §§ 1110, 1153, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2013). Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The Board is granting in full the benefit sought on appeal as to the chronic sinusitis appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed as to that claim. Letters to the Veteran dated in October 2009 and January, May and June 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an October 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any outstanding private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations containing opinions were conducted in December 2009, January 2010, April 2012, August 2012, and a VHA medical expert opinion was obtained in September 2014. As the examination reports and opinions are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports and VHA expert opinion are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for sinusitis and for skin disorders due to burns to the chest, back, legs, and shoulders. He contends that his sinusitis began during his military service and has continued ever since. He also claims that he suffered burns to his skin as a result of an allergic reaction to medication and severe sunburn during service. Applicable Laws and Regulations In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Some chronic diseases, including malignant tumors, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77 . The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis Skin Disorders Due to Burns to Chest, Back, Legs, and Shoulders The Veteran asserts that he has chronic skin conditions resulting from injury or disease in service, and specifically related to the medication taken including Keflex, which he believed caused an allergic reaction resulting in severe photosensitivity or phototoxicity to sunlight, ultimately resulting in severe sun burn. He believes that the in-service first degree burn on his chest, back, and legs, and blisters on both shoulders are related to the etiology of present skin conditions diagnosed after service. The Veteran's service treatment records show that at his June 1980 entrance examination the evaluation of the skin was normal. While receiving treatment during service for a bacterial infection, in July 1981 the medication was changed from Septra to Keflex. The Veteran returned two days later that month with complaints of a skin rash on his body for the previous two days. The provider observed annular erythema macular lesions diffusely spread over the face and arms. The condition was hypopigmented around the lesions. The provider assessed the condition to be ecchymosis. When seen later in July 1981 the Veteran complained of having a skin rash on his body for three days. The provider noted that the Veteran was on Keflex. The Veteran had erythema papules on his arms and hands, and back side. The assessment was angioedema due to drug (Keflex) reaction. The plan was to stop Keflex medication, and start the Veteran on Macrodantine. The Veteran was seen later in July 1981 when the provider noted the Veteran had an allergy to Keflex. The Veteran reported complaints of severe sunburn for the previous two days. At that time the Veteran had first degree burn on his chest, back, and legs; and some small blisters on both shoulders. The provider's assessment was that the Veteran had first degree burn due to overexposure in the sun. Private and VA treatment records dated since 2007 show diagnoses of a number of dermatological conditions including hemangioma (back), basal cell carcinoma (left upper back), dermal nevi (right cheek and left chin), condyloma acuminate (penis), squamous cell carcinoma in situe (left flank), tinea unguim (right toenail), malignant neoplasm of the skin of the face, and actinic keratosis. During a December 2009 VA examination the Veteran reported complaints that his skin breaks out into scaly red papules and that he has received treatments for actinic keratosis. He had a scar below the left eye from a previous basal cell carcinoma removal. After examination the report contains an impression of basal cell carcinoma and actinic keratosis. The examiner opined that this diagnosis is less likely than not secondary to his allergic reaction to Keflex and severe sunburn injuries in 1981. The report of an April 2012 VA examination shows that the examiner did not have access to the claim file or provide information adequate for rating purposes. The report did indicate there was a diagnosis of a sunburn in June 1981. The report of an August 2012 VA examination shows that the examiner from the April 2012 examination reviewed the claim file and then provided an opinion that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted that the Veteran stated he was on Macrodantin in service in June 1981 and was severely sunburned as a result; and presently has more freckles and has had skin cancers. The examiner further noted that Macrodantin is not known to be phototoxic, and the Veteran was not on any of certain cited medications that were phototoxic. The examiner stated that the likely second degree sunburn in July 1981 was likely due to normal over exposure to sun at that time; and that such exposure on one occasion is not the reason for the Veteran's present level of freckles. In July 2014, the Board received a requested VHA medical expert opinion. The medical expert (physician) reviewed the claim file and discussed the Veteran's medical history, which is consistent with the record. The medical expert noted post service diagnoses of a number of dermatological conditions diagnosed between December 2007 and January 2014, including condyloma acuminate, tinea unguium, squamous cell carcinoma, basal cell carcinoma, solar lentigo, seborrheic keratosis, and wart. The medical expert discussed the Veteran's medications taken during service in relation with the Veteran's sunburn and then in relation to the subsequent skin problems listed above. The medical expert discussed the known effects of the medications taken in terms of affecting phototoxicity, and the known pathogenicity of the Veteran's subsequent skin problems in relation to the in-service sunburn incident. The medical expert noted there was no evidence that the one incident of a sunburn occurring while taking Macrodantin, a rare photosensitizer, would trigger any on-going sensitivity after discontinuation of that medication. The medical expert further noted there was no known correlation between a single blistering burn and basal cell carcinoma or squamous cell carcinoma. On this basis the medical expert opined that it is less likely than not that the Veteran's claimed skin conditions are related to service. Although there are present skin diagnoses, there is no medical opinion or other competent, credible evidence that any current skin condition is etiologically linked to service. Although there is evidence of a sunburn injury in service, there is no evidence of any chronic skin condition during service. There is no evidence within the first year after service of any malignant tumors. Continuity of symptoms from service to the present is not shown for any current chronic skin condition. While the Veteran believes that he has skin disorders that are related to his military service, he is not shown to be other than a lay person. As such, he has no competence to provide a medical opinion on the medically complex determinations of diagnosis and etiology. The preponderance of the evidence is against the claim for service connection for skin disorders due to burns to chest, back, legs, and shoulders; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). Sinusitis At the Veteran's June 1980 entrance examination, he reported that he had had sinusitis. On examination, the examiner evaluated the sinuses as normal. Examination of the nose showed boggy mucosa but not obstructed. During service the Veteran was seen in October 1980, and in February, March and May 1981 for complaints involving the upper respiratory tract, including symptoms of sore throat, headaches, and nasal congestion; with various findings and assessments including rhinorrhea, upper respiratory infection, viral syndrome, and sinusitis (in May 1981). The Veteran waived having an examination at separation. Private treatment records in December 2004 show that the Veteran underwent nasal septoplasty in treatment of a deviated nasal septum. The indications for surgery included a history of a car accident resulting in paralysis to the lower extremities, though doing well. There was marked difficulty breathing through the nose, however, it was unknown if this was secondary to the accident or some other accident later. Private treatment records in November 2009 record complaints of symptoms including cough, wheezing, phlegm, for ten days. Findings included boggy nose with edema, and ears with fluid and bulging. After examination the provider's assessment included sinusitis and bronchitis. During a January 2010 VA examination the Veteran reported having a long history of sinus problems, and described recurrent headaches, nasal obstruction, nasal drainage, and chronic cough. He reported he had a markedly deviated septum requiring surgery in 2004. He reported that he generally did not see a doctor for this problem. On review of the claim file records the examiner reported that he did not see evidence of chronic sinusitis recorded in service treatment records. A recent CT scan of the paranasal sinuses showed near complete opacification of the right maxillary sinus with occlusion of the ostiomeatal unit, and other abnormal findings of the sinuses. After examination the report contains diagnoses of chronic maxillary and frontal sinusitis; and deviation of nasal septum. The examiner opined that it is less likely than not that chronic sinusitis might be related to service. As rationale the examiner indicated that he saw no evidence of acute or chronic sinusitis in service or of any chronic condition. In a February 2010 email, apparently in follow-up to the January 2010 VA examination, a VA physician stated that there was no evidence of chronic sinusitis or recurrent sinusitis while on active duty. Therefore, there is insufficient evidence to connect the current diagnosis of chronic sinusitis with the single episode of acute sinusitis while on active duty. An undated private cumulative patient profile report noted a 1998 motor vehicle accident resulting in body cast secondary to bone fracture; and a sinus septoplasty in January 2012. Private treatment records in April 2012 show that the Veteran was seen for complaints of sinus irritation and frontal/maxillary headache and history of sinus SX septoplasty in January 2012. The report of an April 2012 VA examination shows that the examiner from the January 2010 VA examination reviewed the claim file and other VA medical records on file. After that review, the examiner diagnosed chronic sinusitis and allergic rhinitis. The examiner noted that service medical records showed treatment for an acute upper respiratory infection in March 1981, and treatment for what appeared to be another acute upper respiratory infection labeled as sinusitis. The examiner observed that the Veteran had checked "yes" to sinusitis at the time of his examination, but that no other significant pertinent data was mentioned in the service medical records regarding chronic rhinosinusitis or deviated nasal septum during service. The examiner concluded that the evidence failed to meet the standard of what would be considered chronic rhinosinusitis or deviated nasal septum incurred during service; and that the two surgical nasal procedures that occurred many years after separation were for anatomic and inflammatory issues that occurred after separation. Based on the foregoing, the examiner opined that it is less likely than not that the Veteran's current sinusitis was incurred or aggravated during service. The evidence on file demonstrates that the Veteran had multiple visits during service for similar upper respiratory tract related symptoms variously diagnosed to include sinusitis. The Veteran's chronic sinusitis is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran is competent to report on the onset of symptoms associated with the in-service diagnosis of sinusitis; and he is also competent to report on the continuity of those same symptoms he experienced, and for which he self-treated, since service. Such symptoms were eventually associated with a diagnosis of chronic sinusitis made later. The Veteran's assertions on this matter are credible as they are consistent with the service treatment record evidence during service. Given the Veteran's credible assertions that he had been mostly self-treating his sinus problem for years since service, his assertions are consistent with the post-service treatment records that begin only in the 2000s. His competent and credible descriptions of symptoms that continued since service, clearly support the later diagnosis of chronic sinusitis by medical professionals. The Veteran's report of a continuity of related symptoms since service provides probative evidence that establishes an etiology related to service for the present chronic sinusitis. Although the Veteran indicated in his June 1980 entry examination that he had had sinusitis, on examination at that time there was no finding of sinusitis. Thus there is no preexisting condition noted upon entry into service and the Veteran is presumed to have entered service in sound condition. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. The VA examiner who authored the January 2010 and April 2012 VA examination reports failed to recognize evidence of the acute sinusitis condition that was shown during service, stating in January 2010 that he saw no evidence of acute or chronic sinusitis in service. Significantly, the examiner failed to consider the Veteran's complaints as to a continuity of observable symptoms since service. In April 2012, the examiner stated that the relevant evidence "failed to meet the standard of what would be considered chronic rhinosinusitis incurred during service." By that statement the examiner failed to consider whether any in-service episode diagnosed then as sinusitis (presumably acute sinusitis) could have been a prodrome of a later developed chronic sinusitis, especially in light of the Veteran's report of a continuity of symptoms since service. According to the National Institute of Allergy and Infectious Disease, which is part of the National Institutes of Health, "if you suffer from frequent episodes of acute sinusitis, you may be prone to developing chronic rhinosinusitis." See What Are the Differences Between Acute and Chronic Sinusitis, at http://www.niaid.nih.gov/topics/sinusitis/Pages/ acuteVsChronic.aspx (last visited October 10, 2014). At the least, the evidence of record raises a reasonable doubt as to entitlement to service connection for chronic sinusitis. When reasonable doubt is resolved in the Veteran's favor, the Board finds that he has chronic sinusitis related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). Service connection is warranted for chronic sinusitis. ORDER Entitlement to service connection for skin disorders is denied. Entitlement to service connection for chronic sinusitis is granted. ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs