Citation Nr: 0813478 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-07 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for chronic sinusitis. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran served on active duty from March 1986 to May 1997, with prior active duty of less than two months. This appeal to the Board of Veterans' Appeals (Board) is from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In January 2008, the veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the veteran initiated an appeal with respect to several issues, in addition to the issues identified on the title page of this decision. Those additional issues were either not included in his Substantive Appeal or were withdrawn from his appeal at the January 2008 hearing. The Board will limit its consideration accordingly. In a February 2008 statement, the veteran has requested the RO to reconsider a February 2008 rating decision denying service connection for cervical spine disability. This matter is referred to the RO for appropriate action. The claim for service connection for a low back disability is addressed in the REMAND that follows the order section of this decision. FINDING OF FACT The veteran does not have chronic sinusitis. CONCLUSION OF LAW Chronic sinusitis was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, No. 2006-7303 (Fed. Cir. Apr. 5, 2007). The record reflects that the RO provided the veteran with adequate VCAA notice by letter mailed in February 2004, prior to its initial adjudication. Although he was not specifically informed in this letter that he should submit any pertinent evidence in his possession, he was informed of the evidence that would be pertinent and requested to submit such evidence or to provide the information and any authorization necessary for the RO to obtain the evidence on his behalf. Therefore, the Board believes that this letter put him on notice of the fact that he should submit any pertinent evidence in his possession. In any event, a December 2005 letter specifically informed him that he should submit any pertinent evidence in his possession. Although the veteran was not provided notice with respect to the disability-rating or effective-date element of the claim until March 2006, after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for chronic sinusitis. Consequently, no disability rating or effective date will be assigned, so the failure to provide timely notice with respect to those elements of the claim is no more than harmless error. The Board also notes that the veteran has been afforded an appropriate VA examination and service medical records and pertinent post-service medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In this regard, the Board notes that during his January 2008 hearing, the veteran testified that he would be submitting additional medical evidence from his private physician. The record was held open for the amount of time requested by the veteran, but no additional evidence pertinent to this claim was received. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without 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. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Service medical records show diagnoses and treatment for upper respiratory infections, but do not show that the veteran was diagnosed with sinusitis. With the exception of a March 2004 VA examination report, none of the post-service medical evidence of record shows that the veteran was diagnosed with sinusitis. The March 2004 VA examination report shows that no abnormality of he sinuses was found on clinical evaluation and that the veteran was diagnosed with episodic sinusitis, exacerbated by tobacco use and presently not causing functional limitation. In fact, there is no medical evidence showing that the veteran has chronic sinusitis. Although the veteran might sincerely believe that he has chronic sinusitis, as a lay person, he is not competent to render a medical diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against this claim. ORDER Service connection for chronic sinusitis is denied. REMAND The veteran contends that his current low back disability is related to injuries he sustained while on active duty. The record reflects that the veteran submitted additional evidence directly to the Board, in the form of a January 2008 medical report and etiology opinion from a private physician. The veteran has not waived his right to have this evidence initially consideration by the originating agency. Also, in January 2008, the veteran testified that the report of a March 2004 VA examination of his back is inadequate because the examiner did not accurately record what the veteran told him. He also asserts that a December 2004 VA examination did not include an examination of his back. In light of these contentions and the fact that additional pertinent evidence has been received since the December 2004 examination, to include medical opinions supporting the claim, the Board has determined that the veteran should be afforded another VA examination. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The veteran should be afforded a VA examination by a physician with appropriate expertise, other than the physician who examined the veteran in December 2004, to determine the nature and etiology of any currently present low back disability. The claims folders and a copy of this remand must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following the examination of the veteran and the review of the claims folders, the examiner should provide an opinion with respect to each currently present low back disorder as to whether there is a 50 percent or better probability that the disorder is etiologically related to the veteran's active service. The supporting rationale for all opinions expressed must also be provided. 2. The RO or the AMC should also undertake any other development it determines to be warranted. 3. The RO or the AMC should then re- adjudicate the claim for service connection for a low back disability. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be issued a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to the ultimate outcome in this case. The veteran need take no action until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 (CONTINUED ON NEXT PAGE) 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs