Citation Nr: 1513229 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 13-06 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for stress disorder. 2. Entitlement to service connection for depression. 3. Entitlement to service connection for chronic sinusitis. 4. Entitlement to an initial compensable rating for allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to February 2011, including service in Southwest Asia. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran had also perfected an appeal with respect to a claim of service connection for a right shoulder disorder; this was ultimately granted in a July 2013 rating decision and that matter is no longer in appellate status. FINDINGS OF FACT 1. Stress disorder as a result of military service is not shown. 2. Depression as a result of military service is not shown. 3. Chronic sinusitis is not shown currently or at any time during the appeal period. 4. At no time during the rating period on appeal has the Veteran's allergic rhinitis been manifested by polyps, greater than 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side, or by impairment approximating such a level of severity. CONCLUSIONS OF LAW 1. The criteria for service connection for stress disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). 2. The criteria for service connection for depression have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). 3. The criteria for service connection for chronic sinusitis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). 4. The criteria for an initial compensable disability rating for allergic rhinitis have not been met. 8 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.97, Diagnostic Code 6522 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In September 2010, the RO sent the Veteran a letter, prior to adjudication of his claims, providing notice, which satisfied the requirements of the VCAA. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA examinations in January 2011 and May 2013. The Board notes that the Veteran declined the mental health portion of the VA Examination in May 2013. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Therefore, remand for additional VA examination is not warranted as to the claim for service connection for mental health disorders. The Board has no legal recourse but to decide the Veteran's claims on the basis of the existing record. 38 C.F.R. § 3.655. As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may also be granted for listed chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a) In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present (at any time during the pendency of the claim, see McClain v. Nicholson, 21 Vet. App. 319, 323 (2007)) disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Facts and Analysis Mental Health Disorders The Veteran filed a claim of service connection for both stress disorder and depression, citing the specific difficulties he experienced during his last year of military service, including issues with his commanding officer and the break-up of his marriage. He stated that he had received counseling in service from the chaplain, rather than seeking mental health counseling, which might have appeared in his permanent military records. The Veteran's service treatment records do not show any complaints, treatment, or diagnoses related to any mental health disability. VA treatment records following service separation show that he received counseling for a "partner relational problem" and for anger. During his group therapy for depression, October 2012 notes indicated that he had a diagnosis of depressive disorder NOS, and he had discussed recent changes and crises in his life as resulting in feelings of depression, anger, and stress. The Veteran was provided a VA examination in May 2013. The examiner's report stated that he arrived for the examination and was unsure why he had been scheduled for a mental health examination. He gave a description of the end of his marriage and stated that he "got over that," and noted that one of his commanding officers had been difficult to get along with but he no longer had any residual feelings about that experience. The Veteran stated that he did not want to participate in a mental health evaluation. After reviewing the evidence set forth above, the Board finds that the claims of service connection for stress disorder and depression must be denied. While the record does show evidence of personal and professional difficulties and even crises in the last several months of the Veteran's active duty, there is not sufficient evidence to conclude that he has a current mental health disability (either stress disorder or depression) that was incurred in or was otherwise the result of his military service. Without a current disability, service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered that the Veteran has been provided VA mental health treatment for anger management and relationship issues. The Board has likewise considered the symptoms reported during that treatment of anxiety, panic, depression, and even PTSD. An October 2012 diagnosis of depressive disorder NOS has likewise been considered. However, the evidence of record is insufficient to support a conclusion that the Veteran has a current mental health disability that was caused by his military service. The Veteran was provided a VA examination to address his mental health claims but informed the examiner that he did not wish to participate. He described previous problems with his wife and his commanding officer as things he had experienced but had gotten over and had no residuals from. Inasmuch as the Veteran was provided an opportunity to participate in the examination process, which would have provided the necessary evidence to prove his claims, and explicitly declined to do so, the Board must decide the claim based on the evidence of record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist in developing the pertinent facts and evidence in connection with a claim is not a one-way street, and the Veteran has a responsibility to cooperate in such development). As discussed above, the evidence of record is insufficient to support his claims and they must be denied. Sinusitis The Veteran filed a claim of service connection for chronic sinusitis. His service treatment records show that he was consistently treated for and diagnosed with sinusitis during the first twenty years of his military service. In October 2000, he underwent surgery for his long-term sinus problems including repair of a nasal septal deviation. After his surgery, the service treatment records show only two episodes of sinusitis, in February 20002 and August 2006. The Veteran continued to report sinusitis as a historical medical problem on all medical history questionnaires up to the time of his service separation. Medical records since service separation have not shown any evidence of sinusitis. Service connection is in effect for allergic rhinitis, a disability with symptoms that can overlap with those of sinusitis. The claim for an increased disability rating for allergic rhinitis is addressed below. A VA examination in January 2011 including imaging studies of the sinuses but found no air-fluid levels and no abnormalities of the sinuses. He gave a history of constant problems with headaches but without incapacitating episodes or long-term antibiotic treatment. He reported interference with breathing through his nose and purulent discharge, for which he took Benadryl. Examination showed no polyps, nasal obstruction, or other pathology which would support a diagnosis of sinusitis. The Veteran appealed the initial denial of service connection for sinusitis in June 2012 and submitted a statement detailing symptoms he related to his sinusitis. Specifically, he complained of constant sinus symptoms with headache, purulent discharge, pain, and a hoarse voice. He later argued that the VA examination should have found evidence of sinusitis when his treatment records showed near-constant treatment and medications for the condition. He also discussed using a sinus rinse daily because of crusting and lack of air flow with respect to his claim for a compensable rating for allergic rhinitis. A VA examination conducted in May 2013 by an ear, nose, and throat specialist noted the earlier diagnosis of allergic rhinitis and his problems with sinuses prior to surgery in 2000. The examiner noted the Veteran's reports of daily nasal irrigation and observed that there had been no problems with his sinuses since his surgery. There were no current findings to support a diagnosis of sinusitis. Based on the evidence set forth above, the Veteran does not have a current disability of sinusitis. While such a disability was shown throughout much of his military service, the problem was largely relieved with October 2000 endoscopic sinus surgery. The only two incidents of treatment or diagnoses of sinusitis since then were in 2002 and 2006, more than four years prior to service separation. VA examinations have shown no evidence of current sinusitis and the Veteran has not received any medical treatment for the disability during the appeal period. As such, there is no current disability of sinusitis for which service connection can be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran's lay statements regarding his symptoms, particularly his subjective sensation of reduced air flow in his nasal passages due to blockage of his sinuses. While the Veteran is considered competent to provide evidence regarding his symptoms as well as his own methods of addressing those symptoms, such as by regular use of a sinus rinse, this is not sufficient to support a current disability. Based on the objective medical evidence provided by the VA examiners, who have the necessary medical training and expertise to render an expert opinion, in particular the May 2013 examiner who was an ear, nose and throat specialist, the Veteran does not currently have sinusitis. Therefore, service connection must be denied. 38 C.F.R. § 3.304. Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's allergic rhinitis is evaluated under Diagnostic Code 6522 that addresses both allergic and vasomotor rhinitis. 38 C.F.R. § 4.97. Under Diagnostic Code 6522, a 10 percent evaluation is assigned when there are no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent evaluation is assigned when there are polyps as well. Id. Facts and Analysis The Veteran sought and was granted service connection for allergic rhinitis, effective as of the date of service separation. The condition has consistently been rated as noncompensable or 0 percent disabling, and the Veteran has appealed this assigned rating. The January 2011 VA examination noted a diagnosis of allergic rhinitis based on the history the Veteran provided, but noted that there was no evidence of current rhinitis at the time of the examination. The Veteran has argued that his allergic rhinitis warrants a higher disability rating because he has coped with a constant blockage of his sinuses and has used a sinus rinse daily because of crusting and lack of air flow. It was his contention that this demonstrated a blockage in excess of the minimum 50 percent. On the May 2013 VA examination, the examiner noted the diagnosis of allergic rhinitis in 2000, as reported by the Veteran, and the limited medical evidence of treatment for the disability. At the time of the examination, the Veteran was not taking any medications for rhinitis. There was no evidence of nasal polyps or obstructions on physical examination. Under the rating criteria for rhinitis, assignment of a compensable or 10 percent disability rating requires evidence of 50 percent obstruction of the nasal passage on both sides or complete obstruction of the nasal passage on one side. The objective medical evidence, in the form of VA examinations, shows that the Veteran's rhinitis does not result in obstruction of the nasal passages or polyps. The Veteran has not submitted any medical evidence to the contrary, nor any evidence of the need for regular treatment of his rhinitis which might more nearly approximate the rating criteria for a compensable rating. The Board has considered the Veteran's lay statements regarding his symptoms of purulent nasal discharge and a subjective impression of blockage and restricted air flow. However, the nasal discharge is not sufficient to warrant a compensable rating and the objective medical evidence does not support the subjective impression of nasal blockage. As such, the lay evidence is not sufficient to support a 10 percent disability rating, especially where there is no evidence of functional impairment or incapacitation as a result of the Veteran's symptoms. Moreover, the Board finds no other relevant diagnostic codes for consideration, keeping in mind that service connection is not in effect for sinusitis. For the reasons stated above, the Board finds that an initial compensable disability rating for allergic rhinitis is not indicated by the evidence. 38 C.F.R. § 4.97. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology as verified by objective medical evidence of VA examination. The Veteran's subjective perception of nasal blockage, while not specifically described in the rating criteria, does not result in any functional limitations. The rating criteria does provide for the possibility of higher ratings for more severe symptoms when demonstrated on objective examination. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to service connection for stress disorder is denied. Entitlement to service connection for depression is denied. Entitlement to service connection for chronic sinusitis is denied. Entitlement to an initial compensable disability rating for allergic rhinitis is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs