Citation Nr: 0813663 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-08 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for bladder and urinary tract infections (UTI). 3. Entitlement to service connection for amenorrhea. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from January 1976 to December 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO, in pertinent part, denied entitlement to the benefits sought on appeal. The February 2002 rating decision also denied entitlement to service connection for allergic rhinitis, acute conjunctivitis, palpitations, dermatitis, gastroesophageal reflux disease, kidney condition, headaches, right and left knee conditions, right and left foot conditions, and hearing loss. The veteran filed a notice of disagreement (NOD) with respect to these issues. A statement of the case (SOC) was issued in January 2003 reflecting that the veteran initiated appeals regarding 16 matters. In her February 2003 VA Form 9, however, the veteran specifically indicated that she was only appealing four issues - the three on the title page, and the matter involving the proper rating for her service- connected low back disorder. As she has so confined her appeal, no other issues are in appellate status. 38 C.F.R. § 20.302(b). As to the low back disorder, the Board points out that in the February 2002 rating decision, the RO awarded service connection for scoliosis with chronic low back pain and assigned a 10 percent evaluation effective April 2000. The veteran's NOD simply expressed disagreement with the February 2002 rating decision. While a claim of entitlement to a higher initial evaluation was not included in the January 2003 SOC, the claim was included in the January 2004 supplemental statement of the case (SSOC) and readjudicated in a January 2004 rating decision wherein a 40 percent rating was assigned effective February 2001. In a February 2004 statement, the veteran indicated that she was satisfied with the increased 40 percent rating. As such, this claim is no longer in appellate status. The veteran presented testimony before the Board in March 2007. The transcript has been associated with the claims folder. The claims of entitlement to service connection for bladder and urinary tract infections and amenorrhea 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. FINDINGS OF FACT 1. The veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. The competent medical evidence of record does not contain a current diagnosis of sinusitis. CONCLUSION OF LAW The criteria for the establishment of service connection for sinusitis are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim, what subset of the necessary information or evidence, if any, the claimant is to provide, and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Additionally, proper notice should inform the claimant that he may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, the veteran filed her claim in April 2000, prior to the enactment of the VCAA. In an April 2000 letter, she was notified to submit evidence showing a current disability, an injury or disability that began in service, and evidence showing a link between the two. The claim was originally denied by the RO in July 2000. Additional evidence and statements were received within the year following the issuance of the July 2000 rating decision. In July 2001, the veteran was again notified to submit evidence that sinusitis was incurred during military service. In November 2001, the veteran indicated that she had no further evidence to submit in support of her claim. The claim was readjudicated in February 2002. Thereafter, in October 2005, the RO provided notice to the veteran regarding the information and evidence needed to substantiate the claim, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence in her possession that pertained to the claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include the veteran's service medical and personnel records, post-service private and VA treatment records, VA examination reports, and the transcript from the March 2007 Board hearing. Additional VA outpatient treatment records and a report of VA examination were associated with the claims folder after the January 2004 SSOC was issued; however, these records are not pertinent to the claim on appeal. Thus, remand for preparation of an SSOC is not necessary. 38 C.F.R. § 19.31(b). The veteran testified in March 2007 that post-service private treatment records from Dr. B and Dr. S, were no longer available. Transcript at 9-10. Any further efforts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1). As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail in the claim for service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The veteran contends that she has sinusitis as a result of her active duty service. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and that the appeal as to this issue must be denied. In this regard, the Board notes that there was little in the way of any documentation of a chronic sinus problem during service. The veteran's service medical records show the veteran complained of sinus headaches of a two-week duration in November 1977. She was diagnosed with acute sinusitis. Though she served another two years active duty service, medical records of subsequent treatment show no complaints or findings indicative of a sinus problem. The mere fact that the veteran complained of sinus headaches in service is not enough to establish service connection; there must be evidence of a resulting chronic disability. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). The September 1979 separation examination was negative for a diagnosis of sinusitis. Further, there has been no showing of continuity of symptomatology after service to support a finding of chronicity. 38 C.F.R. § 3.303(b). In short, a chronic sinus problem was not shown during service or for years immediately thereafter. Private medical records from the Family Practice Center first diagnose acute sinusitis in December 1985, some six years after the veteran's discharge from active duty service. The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that an isolated complaint of sinus headaches in 1977 resulted in a chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). VA outpatient treatment records dated in October 1999 simply indicate the veteran stated that she had sinusitis. These records contain no medical opinions and no objective findings to support her assertions that sinusitis in the 1980s and 1990s had any relation to any aspect of her period of active duty service. More importantly, the Board finds it pertinent that sinus films taken in July 2001 were normal. Subsequent records do not contain a current diagnosis of chronic sinusitis, nor do they contain an opinion linking complaints of sinus problems to service. Upon VA examination in December 2003, the veteran relayed a history of sinus problems. She denied headaches, but endorsed congestion. Physical examination showed no paranasal sinus tenderness. There was no purulent discharge or crusting indicative of sinusitis. X-rays of the sinuses were normal The veteran's complaints were attributed to seasonal allergic rhinitis. The veteran was not diagnosed with sinusitis. [The Board notes that service connection is currently in effect for allergic rhinitis.] Here, chronic sinusitis was not shown during service or for years thereafter. Additionally, sinus problem shown in the 1980s and 1990s were not related by competent medical evidence to the veteran's period of service. Most importantly, the veteran is not currently diagnosed with a chronic sinus condition. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Such is the case in the instant matter as there is no currently diagnosed sinusitis. While the veteran contends that sinusitis has been present since her period of active military service and related thereto, her statements do not constitute competent evidence of a medical nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for sinusitis is denied. REMAND The veteran has also filed claims for entitlement to service connection for bladder and urinary tract infections and amenorrhea. For reasons discussed below, additional evidentiary development is necessary prior to adjudicating these claims. Accordingly, further appellate consideration will be deferred and this case remanded for action as described below. A VA examination is necessary prior to rendering a decision on the merits of the veteran's claims. Under the VCAA, an examination is necessary to make a decision on a claim, if the evidence of record contains the following: (1) competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability and (2) the evidence indicates the disability or symptoms may be associated with the claimant's active military, naval, or air service, but (3) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). The veteran asserts that she has disability involving bladder and urinary tract infections and amenorrhea are the result of a 1976 sexual assault while on active duty. Service medical records show the veteran was treated for possible hemorrhagic cystitis, urinary frequency, nocturia, dysuria, and hematuria during service. The September 1979 separation examination noted painless urinary frequency and trace protein in the urine. Post-service, the veteran has repeatedly sought treatment for UTIs, dysuria, vaginal discharge, vaginitis, acute cystitis, and painful intercourse. She underwent a hysterectomy in 1993. Upon VA examination in October 2007, the veteran was diagnosed with post-traumatic stress disorder (PTSD) secondary to military sexual trauma. Service connection for PTSD was awarded in a November 2007 rating decision. VA examiners in December 2003 were unable to definitively link the veteran's repeated UTIs and amenorrhea on active duty to her current complaints. The examiner stated that such was not possible "without more definite entries" in service. The gynecologist suggested that she be afforded a genitourinary examination which was completed in December 2003, the examiner simply indicated the veteran had no current UTI and did not provide a nexus opinion. In light of the confirmation of the military sexual trauma, and the lack of any comment by a medical professional as to the possible relationship between the claimed disabilities and the inservice assault, the Board finds the current medical evidence of record insufficient, and that a new examination with opinion is in order. The Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the veteran should be scheduled to undergo VA genitourinary and gynecological examinations for the express purpose of determining the etiology of any currently diagnosed bladder and urinary tract infections and amenorrhea. Ongoing VA medical records pertinent to the issue should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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, including the degree of disability and the effective date of an award. See also Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate her claims for service connection, but she was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. Thus, on remand the RO should provide corrective VCAA notice. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises the veteran that a disability rating and effective date will be assigned if service connection is awarded, to include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO/AMC should contact the veteran and request that she identify all healthcare providers, VA and non-VA, inpatient and outpatient, who have treated her for bladder and urinary tract infections and amenorrhea since her discharge from service. She should be requested to complete and return the appropriate release forms so that VA can obtain any identified evidence. All identified private treatment records should be requested directly from the healthcare providers. 3. After the receipt of any additional medical records obtained in accordance with this remand, the RO /AMC should schedule the veteran for VA genitourinary and gynecological examinations to ascertain: (a) whether the veteran currently has disability related to bladder and urinary tract infections and/or amenorrhea, and, if so (b) the likely etiology of any such disability. The veteran's claims folder must be available to, and reviewed by, the examiners in conjunction with the examination. The examiners should indicate that the claims folder was reviewed and should comment on the treatment for possible hemorrhagic cystitis, urinary frequency, nocturia, dysuria, and hematuria during service. The examiner should be asked to opine whether it is at least as likely as not that any currently diagnosed bladder and urinary tract infections and/or amenorrhea is due to or aggravated by any aspect of the veteran's period of service, to include the verified military sexual trauma sustained in 1976. The examiners should explain in detail the rationale for any opinions given. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO /AMC should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 5. If any benefit sought on appeal remains denied, the RO /AMC must furnish to the veteran and her representative an appropriate SSOC that includes clear reasons and bases for all determinations and affords them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this remand is to assist the veteran with the development of her claims. 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). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claims. Her cooperation in VA's efforts to develop her claims, including reporting for any scheduled VA examinations, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs