Citation Nr: 1032001 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 06-07 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for sinusitis and rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from February 1996 to February 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in July 2009 for further development. Other issues then on appeal were disposed of by the Board in July 2009. The Board notes that service connection has already been established for reactive airway disease (claimed as asthma). The record shows that the Veteran has also been seeking service connection for sinusitis and rhinitis, and the following decision addresses those issues. FINDINGS OF FACT 1. Chronic rhinitis had its onset in service. 2. The Veteran does not have a current chronic sinusitis disability. CONCLUSIONS OF LAW 1. Rhinitis was incurred during the Veteran's active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 2. Sinusitis was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in December 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that a January 2007 letter regarding another service connection claim did advise the Veteran of the manner that effective dates and disability ratings are assigned. Since the claims now on appeal are also service connection claims, it is arguable that the January 2007 letter was adequate under Dingess. However, to the extent that there may some deficiency, service connection is not being granted for sinusitis, and no effective date or rating will therefore be assigned. There is no harm to the Veteran by any perceived lack of notice. Regarding rhinitis, service connection is being granted. Therefore, there is no harm to the Veteran since he will have the opportunity to initiate an appeal from the effective date and rating which will be assigned by the RO in the course of implementing the grant of service connection. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran an examination in January 2005; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. There has not been an examination establishing that the Veteran has sinusitis currently, or that it is related to service, but the Veteran failed to report for a VA examination in September 2005. Thereafter, the Board remanded the case to the RO in July 2009, to provide the Veteran with another VA examination for this claim. The Veteran was scheduled for that examination in February 2010. The claims file documented that the Veteran failed to appear at this examination. It appears that notice of this examination was sent to the Veteran's current address of record. A supplemental statement of the case was issued in March 2010 clearly indicating that the Veteran had failed to report for this examination. Further, the Veteran's representative was copied on the supplemental statement of the case, and there has been no response. In fact, the Veteran has not contacted VA since March 2007. When a Veteran fails without good cause to report for a necessary VA examination requested by VA in conjunction with a claim, VA is not obliged to attempt to provide another. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a) (2009). There is no legal or regulatory requirement that VA make further efforts to schedule an examination. The consequence in this case of the Veteran's failure without good cause to report for the VA examination is that his claim for service connection must be decided on the basis of the other relevant evidence on file. 38 C.F.R. § 3.655(b). While VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet.App. 190 (1991). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The Veteran feels that service connection is warranted for upper respiratory disability claimed as sinusitis and rhinitis. He stated in December 2004 that he was currently being treated for it. Service treatment records show a nose injury with no fracture in April 1997, an upper respiratory infection with post-nasal drip in August 1997, and sinusitis in February 1999 and January 2000. On service discharge examination in December 2004, the Veteran gave a positive history for sinusitis, hay fever, and frequent colds, and for ear, nose, or throat trouble. He stated that he had used Flonase and pseudoephedrine, and Augmentin. His nose and sinuses were clinically normal. There was a VA examination in January 2005, while the Veteran was still in service. At the time, the Veteran stated that he had been treated for acute sinusitis in February 1999 and in June 2000. He reported symptoms of chronic rhinitis and using Flonase spray for it daily with good results. He had been diagnosed with one episode of infectious sinusitis in the last 12 months. On physical examination, he had no edema or tenderness over his paranasal sinuses, his nasal mucosa appeared normal, and a mucoid nasal discharge was noted. There were no nasal polyps noted. His lungs were clear to auscultation and percussion. The diagnosis was chronic rhinitis with recurrent sinusitis. In April 2005, the Veteran reported that he was taking Flonase daily, and allergic rhinitis was assessed. The physician indicated that she was ordering Nasalide to replace Flonase. Based on the evidence, it appears that the Veteran has chronic rhinitis which had its onset in service. Rhinitis was first shown in service and was confirmed during VA treatment in April 2005. In light of the above, the Board finds that service connection is warranted for rhinitis. As for sinusitis, this was shown in service as acute, and there is no medical evidence persuasively showing that the Veteran currently has chronic sinusitis. There has not been a VA examination or any other competent evidence confirming it post-service. In order for service connection to be granted, there must be evidence of a current disability. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). In the case of sinusitis, there is no such showing. Accordingly, service connection is not warranted for sinusitis. While the Veteran may feel that he has sinusitis, he is a layperson, and as such, his opinion as to this medical matter is not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). The preponderance of the evidence is against service connection for sinusitis and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Should the Veteran develop chronic sinusitis in the future, he may always request that his claim be reopened. ORDER Service connection for rhinitis is warranted. To this extent, the appeal is granted. Service connection for sinusitis is not warranted. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs