Citation Nr: 1123376	
Decision Date: 06/20/11    Archive Date: 06/28/11

DOCKET NO.  06-04 309	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for sinus disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Wishard, Associate Counsel


INTRODUCTION

The Veteran had active military service from April 1963 to April 1965. 

This matter comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota. 

In April 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  

This matter was previously before the Board in October 2009 and August 2010 and was remanded for further development.  It has now returned to the Board for further appellate consideration.  The Board finds that there has been substantial compliance with the Board's prior remands. 


FINDINGS OF FACT

1.  The Veteran is less than credible with regard to the onset date of his sinus disability.

2.  The competent clinical evidence of record reflects that the Veteran's sinus disability is less likely than not causally related to active service.

3.  There has been no demonstration by competent medical,  nor competent and credible lay, evidence of record, that the Veteran has a sinus disability causally related to active service.


CONCLUSION OF LAW

A sinus disability was not incurred in, or aggravated by, active service. 38  U.S.C.A. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).  

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010; 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, 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.  Upon receipt of an application for "service connection," therefore, VA is required 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.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded.   

In VA correspondence, dated in September 2004, VA informed the appellant of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence.  The correspondence was deficient in that did not inform the Veteran that a disability rating and effective date would be assigned if service connection was granted.  Such notice was provided to the Veteran in VA correspondence, dated in March 2006.  

In Pelegrini v. Principi, 14 Vet. App. 412 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision.  Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini.  Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error.  Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated several times thereafter, and the appellant therefore, has not been prejudiced.  The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices.  
 
Duty to Assist

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records (STRs), military personnel records, private, government, and VA examination and treatment records, and the statements of the Veteran in support of his claim, to include his testimony at a Board hearing.  The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record.  The Board also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding pertinent evidence with respect to the Veteran's claim.  In its August 2010 remand, the Board directed that VA treatment records from the VA medical centers in Fargo, Minneapolis, and St. Cloud be obtained.  The claims file includes VA treatment records from all three locations.  The Board also requested that records from Dr. R.M. (with regard to the Veteran's 1980 sinus treatment/surgery) be obtained.  In August 2010 correspondence, VA requested the Veteran to complete and return a VA Form 21-4142 authorization and consent to release information for Dr. R.M.  The claims file does not contain a completed form from the Veteran.  The duty to assist is not a one-way street.  If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Board also notes that the record indicates that the Veteran had surgery in 1999.  Surgical records are not associated with the claims file.  Nevertheless, the Board finds that a remand to attempt to obtain these records is not warranted.  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).  The September 2010 VA examiner considered the history of the Veteran's third sinus surgery in 1999, the 1999 private medical records regarding it, and the 1999 CT scan, which is associated with the claims file.  

A VA examination with regard to the issue on appeal was obtained in September 2010.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination/opinion obtained in this case is more than adequate.  The examination report provides pertinent clinical findings consistent with the evidence of record, and provides supporting rationale for the opinion proffered.  Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  It includes a thorough review of the Veteran's records, a clinical examination, and a CT scan.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination/opinion has been met.  38 C.F.R. § 3.159(c) (4).  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  

Legal Criteria

Service connection in general

Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service.  38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 (2010).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d).

Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence, or in certain circumstance lay evidence, of a nexus between the current disability and the in-service disease or injury.  See Pond v. West, 12 Vet. App. 341, 346 (1999).  Where the determinative issue involves a medical diagnosis, competent medical evidence is required.  This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions.  Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).

In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology.  Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance.  The Court set forth a two-step analysis to evaluate the competency of lay evidence.  First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence.  If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection.  The Board observes that this Federal Circuit decision is nonprecedential.  However, see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"].  The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of a decision of a superior tribunal, the Federal Circuit.  557 F.3d 1355 (Fed. Cir. 2009).  

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

Analysis

The Board has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran avers that he has a sinus disability causally related to active service, and he specifically relates it to exposure to chemicals while stationed at Fort Bragg, North Carolina.  

The first element of a claim for service connection is evidence of a current disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that compensation may only be awarded to an applicant who has a disability existing on the date of the application, not for a past disability).  Numerous clinical records reflect that the Veteran has had sinusitis and sinus surgery.  The September 2010 VA examination report reflects a diagnosis of chronic sinusitis; thus, the Board finds that the first element for service connection has been met.  

The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease.  The Veteran's STRs are negative for any complaints of, or treatment for, a sinus disability.  He contends that in the summer of 1964, while assigned to Headquarters Company at Fort Bragg, North Carolina, he was sent to Chemical, Biological, Radiological (CBR) Warfare training where he was exposed to various chemicals and biological agents.  The Veteran's DD 214 indicates that his military occupational specialty (MOS) was as a field radio repairman.  His personnel records reflect that he was assigned to a signal battalion while stationed at Fort Bragg, North Carolina from approximately March 1964 to April 1965.  The Veteran's STRs and personnel records are negative for any exposure to chemicals in service.  The Veteran's personnel records do not reflect any CBR training, or any type of specialized training subsequent to February 1964.  

Even if the Board were to find that the second element for service connection had been met, the Board finds that the third element has not been met.

The third requirement for service connection is competent credible evidence of a nexus between the current disability and the in-service disease or injury.  The Board finds, for the reasons noted below, that the third requirement for service connection has not been met.  

The September 2010 VA examination report reflects the opinion of the examiner that it is less than 50 percent probable that the Veteran's sinus condition is due to his military service.  The examiner noted a lack of complaints in service, the first post-service clinical records, that the Veteran's sinusitis was related to his deviated nasal septum, and that there was no evidence of a deviated nasal septum in service.  Thus, the only clinical opinion with regard to etiology of the Veteran's sinus disability is against a finding that it is related to service.  

With regard to continuity of symptomatology, numerous Health Resources and Services Administration (HRSA) medical entries in 1966, 1976, 1977, and 1978 are negative for sinus problems, but mention numerous other complaints.  The earliest clinical evidence of nasal problems is in 1979, or approximately 15 years after separation from service (See March and June 1979 records.)  The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

HRSA records from 1989 through 1999 reflect sinus problems, surgery for sinus blockage, septal deviation and obstruction.  None of the records reflects that the Veteran had sinus problems since service or that the Veteran has a sinus disability in any way related to active service, or to chemical exposure.  

While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.)  

The Board finds the Veteran' statement that he has had sinusitis or sinus complaints since service to be less than credible when considered with the record as a whole.

First, the Veteran's STRs are negative for any sinus complaints.  STRs reflect that the Veteran sought treatment for pain in his right arm and shoulder in December 1964, and a chest cold in March 1965; however, they are negative for complaints for his sinuses.  Second, the Veteran denied sinusitis on his March 1965 report of medical history for separation purposes.  He did report that he had had diphtheria, mumps, whooping cough, and jaundice as a child.  The Board finds that if the Veteran had suffered from sinus problems in service, it would have been reasonable for him to have noted it on his separation examination, when he noted other previous diseases/conditions.  Third, the Veteran filed claims for VA disability benefits for a right shoulder disability, a right knee disability, his heart, blood pressure, and high cholesterol, in 1995.  The Board finds that if the Veteran had had sinus complaints since separation from service, it would have been reasonable for him to have filed a claim for it when he filed his other claim in 1995; he did not.  Fourth, an October 1991 private medical record reflects that the Veteran reported that he had a 16 year history of sinus difficulty, or beginning in approximately 1975, ten years after separation from service.  Based on the record as a whole, the Board finds that any contention by the Veteran that he has had sinus problem since service to be less than credible. 

In the absence of credible evidence of continuity of symptomatology or a clinical nexus opinion, the Board finds that service connection for a sinus disability is not warranted.  In this regard, the Board also notes that the Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation.  As such, his lay opinion does not constitute competent medical evidence and lacks probative value. Espiritu supra.

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).




ORDER

Entitlement to service connection for sinus disability is denied.




____________________________________________
U. R. POWELL 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs