Citation Nr: 1540304 Decision Date: 09/18/15 Archive Date: 10/02/15 DOCKET NO. 10-11 237A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for shortness of breath with syncope, to include respiratory and sinus disorders. 2. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (also claimed as service connection for a neurosis disorder/neurotic nervous condition). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas. The Veteran appeared at a videoconference hearing at the RO in December 2014. A transcript of the hearing is of record. In a March 2015 decision, the Board remanded the issues for additional development. In conjunction with the remand, the Veteran was afforded several VA examinations. Unfortunately, as will be discussed below, the issue of service connection for a psychiatric disorder other than PTSD (also claimed as service connection for a neurosis disorder/neurotic nervous condition) requires additional development. The issue of service connection for a psychiatric disorder other than PTSD (also claimed as service connection for a neurosis disorder/neurotic nervous condition) is remanded to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center. FINDING OF FACT The Veteran does not have a current respiratory/breathing disorder; any current sinus disorder, to include allergic rhinitis, is not of service origin. CONCLUSION OF LAW The criteria for service connection for shortness of breath with syncope (hyperventilation syndrome), to include respiratory/sinus disorders are not met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In August 2007 and November 2008 letters, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letters also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letters further told him to submit relevant evidence in his possession. The letters also provided the Veteran with notice as to the disability rating and effective date elements of the claim. The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, VA examination reports and opinions, hearing testimony, and lay evidence. No additional pertinent evidence has been identified by the claimant. The Board further observes that in conjunction with the March 2015 Board remand, additional VA treatment records were obtained and VA examinations were performed, which included etiology opinions. Moreover, the actions taken complied with the directives of the Board remand. As to the shortness of breath with syncope, to include respiratory and sinus disorders, the Veteran was afforded VA examinations in June 2015 and opinions were obtained as to the etiology of any breathing/respiratory/sinus disorders, and their relationship, if any, to his period of service. When VA undertakes to provide VA examinations or obtain VA opinions, it must ensure that the examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations of record are adequate for rating purposes, because they were performed by a medical professional, were based on a thorough examination of the Veteran, and reported findings pertinent to the rating criteria, along with rationale to support the requested opinion. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Thus, the Board finds that a further examination is not necessary regarding the above issue. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented and by his testimony at the Board hearing. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The claimed respiratory/sinus disorder is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); 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 be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran maintains that he has had sinus/breathing problems since his period of service. A review of the service treatment records reveals that the Veteran, on his January 1969 service separation report of medical history, checked the "yes" boxes when asked if he had or had ever had shortness of breath, sinusitis, and dizziness or fainting spells. In the "physician's summary" section of the report, it was noted that the Veteran had "hypervent syncope". The Board notes that it previously characterized this entry as indicating hyperventilation syndrome, but on further review of the handwritten entry by the physician, the Board finds that the entry is correctly read as quoted. Post-service treatment records do not reveal any complaints or findings of breathing/respiratory problems in the years immediately following service. VA treatment records do demonstrate that the Veteran was prescribed loratadine and a nasal saline in October 2006. At the time of his December 2014 hearing, the Veteran testified that he was diagnosed as having bronchitis while in service. He stated that he was able to go back to training the next day. He indicated that he received no more treatment in service. He also testified that he had not been seen for bronchitis issues or other breathing conditions since service. The Veteran did report that he had been suffering from sinus and hay fever and that he had been given medication by VA for treatment of this. In conjunction with the March 2015 Board remand, the Veteran was afforded VA examinations for respiratory and sinus conditions in June 2015. The examiner noted that the Veteran's records were available and had been reviewed. With regard to the respiratory examination, the examiner indicated that the Veteran had never been diagnosed with a respiratory condition. The examiner observed that the Veteran reported having had an episode of bronchitis while in service in 1968. He indicated that he was stationed at Fort Sill Oklahoma at that time. He denied any episodes of bronchitis after service. The Veteran, when asked about lung symptoms, stated "if I get wet, I get really bad sinus and hay fever, if I take shower needs to be in warm, if not then my sinus get clogged up". The Veteran denied any chronic lung/pulmonary problems. Chest x-rays performed at the time of the examination were clear and physical examination was unremarkable. At the time of the sinus examination, the examiner indicated that the Veteran had been diagnosed with allergic rhinitis in 2006. The examiner noted that the Veteran complained of a runny nose, hay fever, sneezing, and watery itchy eyes "for a while". The Veteran reported he was treated in service, but could not recall the name. He stated the symptoms were worse when the season changed. The Veteran also indicated that he had been treated by VA for this for a while. He stated that he sometimes had difficulty breathing through the mouth when he had bad nasal congestion. The Veteran took loratadine, which had been prescribed by VA. The examiner noted that the Veteran had been followed by VA since 1983 and that the first noted diagnosis of allergic rhinitis was on October 25, 2006, when he was placed on loratadine and nasal saline. The examiner opined that the Veteran's sinus condition, allergic rhinitis, was less likely than not incurred in or caused by any claimed illness, injury or event. The examiner noted that the Veteran had been followed by this facility for long time, from 1982, and that the first noted diagnosis of allergic rhinitis was in October 2006, when he was placed on loratadine and nasal saline. She indicated that a review of the record showed no records or documentation of allergic rhinitis/sinus condition in service or after service. As to any claimed respiratory disorder, the Board finds that the weight of the evidence does not demonstrate that the Veteran has a current respiratory diagnosis. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The weight of the evidence does not demonstrate a current respiratory diagnosis, thus, there is no current disability to attribute to his military service. To the extent that the Veteran has indicated that he currently has a respiratory disability, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's assertions made during the course of his claim for VA benefits. Moreover, as the question of diagnosis and causation extends beyond an immediately observable cause-and-effect relationship, he is not competent to render a diagnosis or address etiology in the present case. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, whether the Veteran currently has a respiratory disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Consequently, his statements are not competent and probative. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disability, and the claim must be denied. The Board finds that the weight of the evidence, lay and medical, is against the conclusion that the Veteran's sinus disorder had its onset in service. There is no indication of treatment for any type of sinus disorder, including allergic rhinitis, in service. Normal findings for the sinuses were noted on separation. While the Veteran checked the "yes" boxes when asked if he had sinusitis, in the "physician's summary" section of the report, it was only noted that the Veteran had hyperventilation syndrome. Furthermore, as noted above, the Veteran post-service treatment records confirm that he was not diagnosed with any type of sinus problem until 2006, when he was prescribed medication for allergic rhinitis. Therefore, the Board finds that the evidence does not demonstrate an in-service sinus disorder. As to the Veteran's reports that he has had sinus problems ever since his period of service, the Veteran did not file a claim for benefits until November 2003, more than 33 years after service, which was for pension. On that application he did not identify any disability claimed to be related to service. He indicated that the claim was for pension and reported that high blood pressure, heel spur, left shoulder injury and dizzy spells prevented him from working, indicating that the disabilities began in 1997. This suggests to the Board that there was no pertinent sinus problems and that any type of dizzy spells did not begin until 1997. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA benefits in the form of pension and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for service connection for sinus/respiratory disorder at the time of the November 2003 application for pension may reasonably be interpreted as indicative of the Veteran's belief that he did not suffer from any respiratory/sinus problem since service. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. The above evidence is more probative than are his assertions, voiced well beyond his period of service, that any claimed sinus/respiratory disorder is related to his period of service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). For these reasons, the Board concludes that the assertions of sinus symptoms since service are not credible. The Veteran has related his sinus disorder, to include allergic rhinitis, to his active service. While the Veteran, as a lay person, is competent to describe observable symptoms such as pain and while lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, an opinion as to the etiology and onset of any current sinus disorder falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Lay statements on the question of relating the current sinus disorder to service are not competent in the present case, because the Veteran is not competent to state that this disease was incurred in service. See Davidson, 581 F.3d at 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4 (2011). Such diagnoses require clinical or diagnostic testing such as x-ray examination and require knowledge of the complexities of the sinus system that the Veteran is not competent to address. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide medical evidence and/or an opinion relating his current sinus disorder to his period of service. He has not provided either medical evidence or an opinion to support this proposition. Furthermore, there is no competent medical evidence of record relating any current sinus disorder, to include allergic rhinitis, to the Veteran's period of service. Moreover, the June 2015 VA examiner opined that the Veteran's current allergic rhinitis was not related to his period of service. The VA examiner's opinion, which was based on consideration of the accurate facts in this case, as well as the Veteran's history and examination of the Veteran, is of greater probative value than the Veteran's statements regarding etiology of any current sinus problems. The examiner's opinion is based on accurate factual assumptions consistent with those found by the Board in this decision based upon a weighing of the lay and medical evidence. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for shortness of breath with syncope (hyperventilation syndrome), to include respiratory and sinus disorders. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for shortness of breath with syncope (hyperventilation syndrome), to include respiratory and sinus disorders, is denied. REMAND As it relates to the claim of service connection for a psychiatric disorder other than PTSD (also claimed as service connection for a neurosis disorder/neurotic nervous condition), in its March 2015 remand, the Board noted that the Veteran, on his Janaury 1969 service separation report of medical history, checked the "yes" boxes when asked if he had or had ever had nervous trouble of any sort and periods of unconsciousness. The Board further observed that the Veteran was afforded a VA psychiatric examination in December 2012. The examiner rendered a diagnosis of psychotic disorder, NOS and concluded that it was not related to the Veteran's period of service. The examiner also stated that the Veteran had a history of anxiety disorder, which was currently in remission at the time of the examination. This was based upon the Veteran's denial of symptoms of worry, panic, or other anxiety spectrum symptoms. As such, he found the anxiety disorder in full remission. The Board also observed that evidence added to the record subsequent to the examination demonstrated continued diagnoses of anxiety disorder, NOS, in numerous treatment records, and that a review of the Veteran's treatment records prior to the December 2012 VA examination revealed that the Veteran's anxiety problems were, in part, related to his health problems. The Board noted that the Veteran was initially assigned a 100 percent disability evaluation for prostate cancer and 100 percent disability evaluations for subsequent metastases. The Board noted that given the above, the Veteran should be afforded a VA examination to determine the nature and etiology of all current psychiatric diagnoses other than PTSD which might be present and their relationship, if any, to the Veteran's period of service and/or any service-connected disorders. The Board requested that the Veteran be scheduled for an examination to determine the nature and etiology of any psychiatric disorder(s), other than PTSD, which might be present. The examiner was requested to express an opinion as to whether any psychiatric disorder(s) found on examination, at least as likely as not had their onset in service or were related to the Veteran's period of service. If not, was it at least as likely as not (50 percent probability or greater) that any current psychiatric disorder was aggravated (permanently worsened) by any service-connected disorder? As part of the remand, additional VA treatment records were also obtained, which continued to show diagnoses of anxiety disorder, NOS, to include treatment records dated in November 2014, Janaury 2015, and May 2015, containing diagnoses of anxiety disorder, NOS, made by the Veteran's treating VA physicians and social workers. The Veteran was afforded the requested examination in June 2015. The examiner indicated that the Veteran did not have nor had ever been diagnosed with a mental disorder. The examiner noted that the Veteran's record had been reviewed. She further noted the diagnoses made at the time of the December 2012 VA examination. The examiner also observed that the Veteran had no mental health care/treatment before or during the military and that VA records indicated he was diagnosed/treated for Psychosis NOS, Anxiety State, and Anxiety State NOS; with no current psychiatric medication prescribed. The examiner further noted that the Veteran now saw a VA physician and that he had had four visits in 2014 and two in 2015. Following mental status evaluation, the examiner indicated that the Veteran did not report psychiatric symptoms, significant distress, or impairment in functioning, that would warrant a DSM V diagnosis. While the VA examiner found that the Veteran did not have a current psychiatric diagnosis at the time of the examination, the United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). Given the Court's holding in McClain, and the numerous diagnoses of an anxiety disorder, to include at least four diagnoses up until May 2015, encompassing the appeal period, the record should be returned he June 2015 VA examiner to address whether the anxiety disorder, NOS, identified in the VA treatment records during the appeal period, at least as likely as not had its onset in service or is related to the Veteran's period of service, or, in the alternative, is at least as likely as not (50 percent probability or greater) caused or aggravated (permanently worsened) by any service-connected disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA treatment records and associate with the record. 2. Return the record to the VA examiner who performed the June 2015 VA psychiatric examination (or a suitable substitute if necessary). Following a review of the entire record, to include any additional treatment records obtained, the VA examiner is to render an opinion as to whether the anxiety disorder, NOS, diagnosed on numerous occasions during the appeal period, to include in November 2014, Janaury 2105, and twice in May 2015, at least as likely as not had its onset in service or is related to the Veteran's period of service. If not, is the anxiety disorder diagnosed during the appeal period at least as likely caused or aggravated (permanently worsened) by any service-connected disorders? If aggravation is found, the examiner should, to the extent possible, identify the baseline level of severity of the psychiatric disability before the onset of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner must address the diagnoses of anxiety disorder, NOS, shown during the appeal period when rendering the opinions. Complete detailed rationale must be provided for each opinion that is rendered. 3. Following the completion of the above to the extent possible, the RO should readjudicate the remaining claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs