Citation Nr: 0809954 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-02 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for chronic sinus infections due to allergies. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for migraine headaches. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from June 1993 to November 1993 and from November 2002 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The issues of entitlement to service connection for migraine headaches and asthma are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT 1. The veteran's current chronic sinus infections due to allergies existed prior to his entry into active duty service. 2. The veteran's current chronic sinus infections due to allergies did not permanently increase in severity during his active duty service. CONCLUSION OF LAW Chronic sinus infections due to allergies were not incurred in or aggravated by the veteran's active duty military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1153, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006)), eliminated the concept of a well- grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007)). The Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. In this case, the veteran was provided with a VCAA notification letter in December 2003, prior to the initial unfavorable AOJ decision issued in October 2004. An additional VCAA letter was sent in November 2006. Under Pelegrini, for a VCAA notice to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must: (1) inform a claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims. Pelegrini, 18 Vet. App. at 120-121. In reviewing the veteran's claim of entitlement to service connection, the Board observes that the VCAA notices issued in December 2003 and November 2006 informed the veteran of the type of evidence necessary to establish service connection; how VA would assist him in developing his claim; and his and VA's obligations in providing such evidence for consideration. However, only the November 2006 VCAA notice informed the veteran of the "fourth element," i.e., to provide any evidence in his possession that pertains to the claim. Failure to provide pre-adjudicative notice of any of the four elements is presumed to create prejudicial error. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Sanders, supra; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The pre- adjudicative December 2003 letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA and provided examples of the types of evidence, both medical and lay, that could be submitted. Therefore, the Board finds that a reasonable person could be expected to understand that he should submit any relevant evidence during the development of the claim. For these reasons, the Board concludes that the failure to provide a fully VCAA compliant notice was harmless, and that to decide the appeal would not be prejudicial to the veteran. Also pertinent to VA notice requirements is the Court's decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman held 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. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must notify the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present case, a March 2006 letter from the RO to the veteran was the first notice sent of the evidence necessary to establish entitlement to a disability rating and an effective date for the disability on appeal. Despite the inadequate timing of the notice provided to the veteran on these two elements, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). As the Board concludes herein that the preponderance of the evidence is against the veteran's service connection claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. All that VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claim. Once this has been accomplished all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As indicated above, all content requirements of a VCAA notice have been fully satisfied in this case. Therefore, the Board finds that delaying appellate review by providing additional VCAA letters to the veteran would be of no benefit. VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claim and providing him with a VA examination. The veteran's service medical records, VA medical records, and a December 2003 VA examination report were reviewed by both the RO and the Board in connection with adjudication of his claim. The veteran has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claim. Based on these facts, the Board concludes that the medical evidence of record is sufficient to adjudicate the veteran's claim without further development. Thus, the Board finds that additional efforts to assist or notify the veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duty to inform and assist the veteran at every stage in this case. Therefore, he will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). 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). A finding of direct service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Board notes that the veteran's service records indicate that he was awarded the Combat Infantryman Badge, which denotes combat experience. Therefore, the veteran is entitled to the application of 38 U.S.C.A. § 1154(b). However, competent evidence of a current disability and of a link between the current disability and service is still required despite the evidentiary effect of 38 U.S.C.A. § 1154(b). See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 507-13 (1995). The statute "does not create a statutory presumption that a combat veteran's alleged disease or injury is service- connected," but only "considerably lighten[s] the burden of a veteran who seeks benefits for an allegedly service- connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service." Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Applying § 1154(b), the Board finds that the veteran's description of his in-service treatment for sinus infections, i.e., that his infections were not documented due to the movements of his battalion is consistent with the circumstances of combat. Additionally, his claims regarding treatment for sinus infections are corroborated by the statement of SFC T. P., a medical platoon sergeant in his unit. Therefore, the Board finds the veteran's claim of experiencing sinus infections in service is sufficient proof that such infections occurred. In evaluating a claim for aggravation of a preexisting disorder during service, the Board must first determine that the disorder preexisted service. When no preexisting disorder is noted upon entry into service, the veteran is presumed to have been sound upon entry and the presumption of soundness arises. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, if a preexisting disorder is noted upon entry into service, the veteran cannot claim service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). If a veteran is found to have had a preexisting disability and there is an increase in that disability during service, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be presumed to have been aggravated during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, aggravation will not be conceded where there was no increase in severity of the disability during service, based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. The veteran has the responsibility to establish an increase in severity. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Such increase must be shown through independent medical evidence. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). If there is no evidence of injury, complaints, or treatment of the preexisting disability in service, an increase in severity has not been shown. However, should such increase be established, aggravation is presumed to be the result of service, unless rebutted by clear and unmistakable evidence. 38 U.S.C.A. § 1111; Wagner, supra; see also VAOPGCPREC 3-03 (July 16, 2003); 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the rebuttal standard attaches. Cotant v. Principi, 17 Vet. App. 116 (2003); see also VAOPGCPREC 3-03 (July 16, 2003). Any increase in severity must also be permanent. Recurrence or temporary flare-ups of symptoms do not constitute an increase in severity. Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002); see Jensen v. Brown, 4 Vet. App. 304, 306- 307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The veteran contends that his sinus infections are the result of his service in the Gulf War. Therefore, he argues that service connection is warranted for chronic sinus infections. However, the Board notes that the veteran's sinus infections preexisted service. Specifically, at his January 1993 commissioning physical, it was noted that the veteran had had a sinus infection prior to service that was suspected to be sinusitis. Thus, as a history of sinus infections was noted upon entry into active service, the Board finds that the presumption of soundness has been rebutted by clear and unmistakable evidence, the veteran is not presumed to have been in sound condition upon entry into service, and his sinus infections are considered to be a preexisting disorder. 38 U.S.C.A. § 1111; Wagner, supra. Consequently, as indicated above, service connection may not be granted on the basis of incurrence, but it may be granted on the basis of aggravation. However, although the Board accepts the veteran's claim that he was treated for sinus infections in service, there is no evidence that the veteran's sinus infections increased in severity during his active duty service. At his October 2003 separation examination, the examining physician reported that the veteran had experienced a sinus infection in service, but that the infection had resolved with no sequelae. Post- service, the December 2003 VA examination report shows a diagnosis of chronic rhinitis, all year round; however, the diagnosis appears to be based solely on the veteran's statements at the examination, rather than independent medical evidence. A January 2004 CT scan shows clear sinuses. Allergic rhinitis is diagnosed in May 2005 and February 2006 VA treatment records. A September 2006 VA treatment record reports an assessment of allergic rhinitis and a problem with sinuses due to seasonal change. Taking all this evidence into account, there is no indication that the veteran's sinus infections increased in frequency or severity during service, or that any such increase is present after service. Therefore, the Board finds that there is clear and unmistakable evidence that there was no increase in severity of the veteran's sinus infections during service. Accordingly, the presumption of soundness is rebutted and the veteran's sinus infections pre-existed service; however, there is no increase in severity, and therefore, there is no presumption of aggravation during service. Verdon v. Brown, 8 Vet. App. 529 (1996); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). On the basis of the above analysis a preponderance of the evidence is against a finding that the veteran's sinus infections underwent any increase in severity during service. The Board has considered the veteran's own statements regarding his claimed in-service etiology of his current sinus infections. Laypersons are competent to speak to symptomology when the symptoms are readily observable. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the present case, that the veteran's sinus infections preexisted service has been documented in the medical evidence of record. Therefore, service connection for sinus infections on a direct basis is not warranted. Further, as there is clear and unmistakable evidence that the veteran's sinus infections preexisted service, and there is clear and unmistakable evidence that his sinus infections was not aggravated by service, service connection is not warranted on the basis of aggravation of a preexisting disability. 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 claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in the present case, the preponderance of the evidence is against the veteran's claim of entitlement to service connection for chronic sinus infections due to allergies. Therefore, his claim must be denied. ORDER Entitlement to service connection for chronic sinus infections due to allergies is denied. REMAND The veteran contends that he first suffered migraine headaches and asthma while in the military. Therefore, he argues that service connection is warranted. The Board determines that a remand is necessary for further development of the record. As indicated above, the Board determines that the veteran is a veteran of combat, and that his descriptions of medical treatment, while his unit was constantly moving, as well as the subsequent lack of treatment records for the period from November 2002 to October 2003 except for pre- and post- deployment examinations, is consistent with the circumstances of combat. Considering this fact, along with the undated statement of SFC T. P., which reflects that the veteran was treated for asthma and headaches during service, and the veteran's report of the same at his October 2003 post- deployment examination, the Board finds that the veteran had in-service treatment for breathing difficulty/asthma and headaches during service. Further, the Board observes that the veteran has been treated for migraine headaches and asthma post-service. However, there is no medical opinion connecting the veteran's current disorders with his time in service. The December 2003 VA examiner stated that the veteran's headaches and asthma began in service; however, such opinion appears to be only a restatement of the veteran's contentions. Thus, the Board concludes that another VA examination is necessary to determine the nature and etiology of the veteran's current headaches and asthma. Additionally, with regard to the veteran's claim for service connection for asthma, the Board notes that the veteran reported having bronchitis in high school, albeit with no sequelae. Thus, a VA opinion as to whether the veteran's current asthma is related to his pre-service bronchitis, and, if so, whether the disorder increased in severity during service, is also necessary. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be scheduled for the appropriate VA examination to assess the nature and etiology of his headaches and asthma. The claims file should be made available to the examiner for review, and such review should be noted in the examination report. Additionally, the examiner should provide an opinion as to whether it is "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood) that the veteran's headaches or asthma are a result of his active duty military service. Additionally, with regard to the veteran's asthma, the examiner should address whether the asthma is related to his pre-service bronchitis, and, if so, whether the veteran's current asthma is the result of an increase in severity during service of a preexisting disorder. 2. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims file. The veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 38 C.F.R. § 3.655 (2007). 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the veteran's service connection claims should be readjudicated, to include all evidence received since the October 2006 supplemental statement of the case. If the claim remains denied, the veteran and his representative should be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. 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 Supp. 2007). ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs