Citation Nr: 1449559 Decision Date: 11/07/14 Archive Date: 11/12/14 DOCKET NO. 11-02 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for a sinus disorder, to include sinusitis and nose bleeds. 3. Entitlement to service connection for hepatitis, also claimed as elevated liver functions. 4. Entitlement to service connection for an anal fissure. 5. Entitlement to service connection for conjunctivitis. 6. Entitlement to service connection for eczema. 7. Entitlement to service connection for pseudofolliculitis barbae. 8. Entitlement to service connection for a dental disability. 9. Entitlement to service connection for a left knee condition, to include gonococcal arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Johnson, Associate Counsel INTRODUCTION The Veteran had active service from October 1983 to February 2005. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Although he originally requested a hearing, in an August 2014 written statement the Veteran withdrew his request for a hearing. Accordingly, no hearing was provided. 38 C.F.R. § 20.704(e). The Board notes that when a veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue of entitlement to service connection for a left knee disorder to include his claim for gonoccocal arthritis, and the issue of service connection for a sinus condition to include his claims for sinusitis and nose bleeds. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" and "VBMS" systems to ensure a total review of the evidence. The claims file includes additional medical evidence that has not been initially considered by the RO. However, the file includes an October 2014 written statement from the Veteran's representative waiving RO consideration of any additional evidence submitted. See 38 C.F.R. 20.1304(c). Accordingly the Board finds appellate consideration may proceed without any prejudice to the Veteran. The issues of entitlement to service connection for entitlement to service connection for a left knee condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's asthma began during, and has continued since, his active service. 2. The Veteran does not have a current, chronic sinus disability. 3. The Veteran's hepatitis B was diagnosed during active service. 4. The Veteran's chronic anal fissure began during, and has continued since, his active service. 5. The Veteran does not have a current, chronic conjunctivitis disability. 6. The Veteran's eczema began during, and has continued since, his active service. 7. The Veteran's current pseudofolliculitis barbae did not begin during, or was otherwise caused by, his active service. 8. The Veteran currently has chronic periodontal disease. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2014). 2. The criteria for service connection for a sinus disability, to include sinusitis and nose bleeds, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2014). 3. The criteria for service connection for hepatitis B have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2014). 4. The criteria for service connection for an anal fissure have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2014). 5. The criteria for service connection for conjunctivitis have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2014). 6. The criteria for service connection for eczema have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2014). 7. The criteria for service connection for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2014). 8. The Veteran's current dental condition of chronic periodontal disease cannot be service connected for compensation or treatment purposes. 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 3.381(b) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for several disabilities. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that at his June 1983 entrance examination, the Veteran was found to be in normal condition and rated with all ones on the PUULHES physical profile scale. In his accompanying report of medical history the Veteran was noted to be in good health. Accordingly, no diseases or disabilities were noted at the Veteran's entrance to active service. Each of his claims for entitlement to service connection will be addressed below in turn. Asthma The Veteran is seeking service connection for asthma. The Veteran's service treatment records reflect he was treated on several occasions for shortness of breath and was diagnosed with mild intermittent asthma. At his February 2005 separation examination, allergy-induced asthma was noted. Accordingly, in-service occurrence is established. Throughout the period on appeal, the Veteran has consistently reported he continued to experience the symptoms of asthma since his separation from active service. Post-service treatment records reflect he continued to seek treatment for ongoing seasonal asthma. Indeed, such records show he is prescribed an albuterol inhaler, which is typically prescribed for asthma. Therefore, the Board finds the Veteran's asthma began during service and has continued since. Accordingly, his claim for service connection for asthma is granted. Sinus Disorder The Veteran is also seeking service connection for a sinus disorder, including sinusitis and nose bleeds. Service treatment records have been reviewed and reflect the Veteran sought treatment for several episodes of sinus disorders throughout his period of active service. For example, "sinusitis/hay fever" was diagnosed in 1988 and treated with medication, no residuals were noted. Instead, in a January 1995 physical the Veteran's sinuses were noted to be in normal condition. In March 1999, the Veteran was diagnosed with allergic rhinitis and prescribed Allegra, however he subsequently stopped taking this allergy medication. In March 2001, the Veteran was diagnosed with bacterial sinusitis, and was treated with antibiotics. Again, his condition resolved and no residuals were noted. In July 2002, he sought treatment for a "bad sinus problem," including nose bleeds. The Veteran's condition was treated with allergy medications, including Sudafed, Flonase, and Allegra. However, in follow-up treatment no residuals were noted. Instead, during his February 2003 separation examination other conditions, including allergy induced asthma, were noted, however no sinus problems were indicated. Therefore, although the service treatment records reflect the Veteran experienced episodic sinus problems, including sinusitis and nose bleeds, during active service, he did not experienced any chronic sinus disability during active service. Additionally, post-service treatment records do not reflect the Veteran has experienced any chronic sinus disability since his separation from active service. Instead, during his July 2010 VA examination, the examiner noted the Veteran had some congestion throughout the year, but had not experienced sinusitis in more than eight years. Therefore, the examiner found the Veteran last had sinusitis in approximately 2002, the last notation of this disorder in his service treatment records. The medical evidence, therefore, does not reflect the Veteran has sought treatment for any chronic sinus disability, including sinusitis or nose bleeds, since his separation from active service. Instead, his sinuses were noted to be in normal condition on several occasions, including as recently as August and November of 2013. Based on the foregoing, the evidence does establish the Veteran previously experienced isolated incidences of sinusitis and nose bleeds. However, the medical evidence does not establish he experienced a chronic sinus disability at any point during the period on appeal. Indeed, the medical evidence does not establish he even experienced acute symptoms of a sinus disability like sinusitis at any point since his separation from active service. Because there is no current chronic sinus disability upon which benefits could be granted, his appeal is denied. Hepatitis The Veteran is also seeking service connection for hepatitis, also claimed as elevated liver enzymes. His service treatment records, including his February 2005 separation examination, reflect he was diagnosed with hepatitis B in July 2003, during his active service. Post-service medical records reflect that although the Veteran is currently asymptomatic, he continues to receive medical treatment and check-ups for his hepatitis B. Because this chronic disease was diagnosed during his active service, his appeal for service connection is granted. Anal Fissure The Veteran is also seeking service connection for a chronic anal fissure. He sought treatment for this condition on multiple occasions during his active service, and this condition was also noted at his February 2005 separation examination. Post-service medical records reflect the Veteran continues to seek medical treatment for this ongoing condition. During his July 2010 VA examination the examiner noted the Veteran's fissure was noted in a 2008 colonoscopy and continued to cause rectal pain and bleeding whenever the Veteran was constipated, approximately three to four times per month. Because this chronic condition first developed during the Veteran's active service and still continues, service connection is granted. Conjunctivitis The Veteran is also seeking service connection for conjunctivitis, inflammation of the membrane lining the eyelids. The Veteran's service treatment records reflect he was treated for conjunctivitis and red eyes on a couple occasions, for example in June 1993 and July 1996, however no chronic condition was noted. His February 2005 separation examination does not reflect any abnormality of the eyes. Therefore, although the Veteran experienced episodic conjunctivitis during active service, his service treatment records do not reflect any chronic disease. Post-service medical records do not reflect the Veteran experienced any chronic conjunctivitis. Instead, in his July 2010 VA examination the examiner found the Veteran had a history of conjunctivitis in both eyes during active service, however this condition resolved without any sequelae. The examiner also noted the Veteran did not have any current ocular pathology. More recent medical records also do not reflect the Veteran experienced any post-service conjunctivitis. For example, in August and November of 2013 the Veteran's eyes were found to be normal with no abnormalities of the conjunctiva, the lining of the eyelids. No additional medical records reflect the Veteran currently experienced chronic conjunctivitis. Based on all the foregoing, although the Veteran experienced isolated incidents of conjunctivitis during active service, the evidence does not establish he has any current chronic conjunctivitis disability upon which benefits could be granted. Therefore, his claim for service connection is denied. Eczema The Veteran is also seeking service connection for eczema. He sought treatment for this condition on a couple of occasions during active service, including in February 2000. Additionally, on the May 2000 report of the military Medical Evaluation Board the Veteran's history of eczema was noted. Therefore, the service treatment records reflect the Veteran experienced eczema during active service. The Veteran has asserted he continued to experience eczema since his separation from active service. Post-service medical records, including the July 2010 VA examination, reflect the Veteran currently has eczema, supporting his assertions. Therefore, the Board finds all elements of service connection are met, and the Veteran's appeal is granted. Pseudofolliculitis Barbae The Veteran is also seeking service connection for pseudofolliculitis barbae. Service treatment records have been carefully reviewed and considered. Although the Veteran sought treatment for several dermatological complaints, including eczema, psoriasis, and warts on his torso and penis, these records do not reflect he sought at any treatment for, or made any complaint of, pseudofolliculitis barbae at any point during the period on appeal. Therefore, service treatment records do not reflect pseudofolliculitis barbae occurred during active service. Post-service treatment records, including the July 2010 VA examination report, reflect the Veteran currently has pseudofolliculitis barbae. However, these medical records do not relate the Veteran's current pseudofolliculitis barbae to his active service. Therefore, although the Veteran currently has pseudofolliculitis barbae, the evidence does not establish the Veteran's condition began during, or was otherwise caused by, his active service. Accordingly, his appeal for service connection for pseudofolliculitis barbae is denied. Dental Finally, the Veteran also filed a claim for "periodontal chronic." The VA interpreted the Veteran's claim as a claim for service connection for dental treatment purposes and developed the claim accordingly. However, as will be explained below, one of the prerequisites for service connection for dental treatment purposes is service connection for a dental disability for compensation purposes. As such, the Board will take a broad interpretation of the claim. In service treatment records reflect the Veteran received extensive dental treatment, including surgery, for periodontal disease. Additionally, post-service treatment records, including an October 2013 letter from the Veteran's private physician, Dr. Cox, noted he has moderate to severe periodontitis. Accordingly, a current chronic periodontal disease is established. However, for reasons that are discussed below, the Board finds the Veteran is not entitled to service connection for compensation of treatment purposes for his currently diagnosed dental condition based on matters of law under VA regulations. Under VA regulations, periodontal disease cannot be service connection for compensation, but under certain circumstances, may be service connected solely for the purposes of establishing eligibility for outpatient dental treatment. 38 C.F.R. § 3.381(b). In order to be eligible for outpatient dental treatment the Veteran must fit into a "class" as defined in 38 C.F.R. § 17.161. Class I is for veterans who have a service-connected compensable dental disability, Class II is for veterans having a service-connected noncompensable dental condition shown to have been in existence at time of discharge or released from active service or resulting from combat wounds, certain homeless veterans, and veterans who were prisoners of war. Class III is for veterans who have a dental condition that aggravates a service-connected disability. Class IV is for veterans whose service-connected disabilities are rated at 100 percent. Class V is veterans participating in a rehabilitation program and Class VI is for veterans whose dental condition is clinically determined to be complicating a medical condition currently under VA hospital treatment under Chapter 17 of 38 U.S.C. 38 C.F.R. § 17.161. The Board finds the Veteran does not meet any of the classes in order to be eligible for outpatient dental treatment. Service treatment records were reviewed and do not establish the Veteran currently has any service-connected dental disability, or that he otherwise experienced dental trauma during military service. The records also do not establish the Veteran was a prisoner of war, or that he is currently homeless. According the Veteran does not fit into Classes I or II. The evidence also does not establish, and the Veteran has not asserted, that his current dental condition aggravates any of his service-connected disabilities. Therefore, he does not fit the criteria for Class III. The Veteran's combined service-connected disabilities are not rated at 100 percent, the Veteran is not currently participating in a rehabilitation program, and the Veteran is not receiving hospital treatment under Chapter 17 of 38 U.S.C. Accordingly the Veteran does not fit into classes IV through VI. Therefore, the Board finds the Veteran does not fit into any of the classes eligible for dental treatment and consequently is not eligible for outpatient dental services and treatment. 38 U.S.C.A. § 1712 (a)(1). Based on the foregoing, the Board finds the Veteran cannot establish service connection for his currently diagnosed periodontal disease under VA regulations. This condition cannot be granted service connection for compensation purposes, and the Veteran does not fit into any of the classes which qualify for service connection for dental treatment purposes. Accordingly, the Board finds the Veteran's claim for service connection for a dental condition is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with VA examinations regarding his sinus problems, conjunctivitis, and pseudofolliculitis barbae, the reports of which have been associated with the claims file. The Board acknowledges the VA examiner did not provide any nexus opinion regarding these three issues. However, regarding his sinus problems and conjunctivitis, no current disability was found, and therefore no nexus opinion was required. Regarding his pseudofolliculitis barbae, there was no in-service occurrence, as discussed above. Therefore, based on the facts in this case, the Board finds the VA examinations were adequate. Regarding the Veteran's appeals for asthma, hepatitis, and anal fissure, the Board notes the VA examinations provided were not adequate because they did not include any nexus opinion. However, because these claims were all granted in full, there was no harm to the Veteran for any inadequate VA examination. Additionally, the Board notes the Veteran was not provided with a VA examination regarding his claim for service connection for a dental condition. However, this claim was denied as a matter of law, not a question of fact. Accordingly, the report from any VA examination would not have impacted the Board's finding, and there was no harm to the Veteran. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for asthma is granted. Service connection for a sinus disability, including sinusitis or nose bleeds, is denied. Service connection for hepatitis B is granted. Service connection for an anal fissure is granted. Service connection for conjunctivitis is denied. Service connection for eczema is granted. Service connection for pseudofolliculitis barbae is denied. Service connection for a dental condition for treatment purposes is denied. REMAND The Veteran's claim for entitlement to service connection for a left knee disability requires remand for additional processing. Specifically, the July 2010 VA examination diagnosed the Veteran with a left knee disorder, including osteoarthritis, but did not provide an opinion regarding any nexus to active service. In view of the evidence concerning left knee treatment in service, a remand for an addendum examination report including a nexus opinion is required. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the July 2010 examiner, if available, or to another medical professional. If it is determined that an opinion cannot be reached without conducting an examination, an examination should be scheduled. The claims folder, including a copy of this remand, must be available to the examiner and such review should be noted in the report. A complete rationale should be provided for any opinion expressed. Consistent with the factual and medical history, including the Veteran's in-service diagnosis of gonococcal arthritis and subsequent surgery on his left knee in 1985, the examiner should provide an opinion as to the following question: Is it as likely as not (50 percent or greater) the Veteran's current left knee disability, including osteoarthritis, began during, or was otherwise caused by, his active service? 2. Then, readjudicate the appeals. If the appeals remain denied, provide the Veteran and his representative with a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013) ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs