Citation Nr: 1123947 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 10-32 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Delhauer, Law Clerk INTRODUCTION The Veteran served on active duty from October 1962 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran's service treatment records show he was diagnosed with sinusitis in March 1965. 2. The Veteran's VA treatment records show he was diagnosed with sinusitis in July 2007, March 2008, and December 2009. 3. The evidence of record does not relate the Veteran's sinusitis to his military service. CONCLUSION OF LAW Sinusitis was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2010). An October 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and of the disability rating in the October 2009 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained. Although the Veteran referenced treatment by private physicians in his substantive appeal, he has not identified any of his private physicians or provided any private treatment records. In his September 2009 claim the Veteran did not provide information on any medical facilities or physicians who had treated him for sinusitis. In his November 2009 and February 2010 responses to the October 2009 duty to assist letter the Veteran did not provide any private medical records or identify any private physicians or hospitals, but noted VA treatment records to be obtained. In his February 2010 notice of disagreement the Veteran requested all VA treatment records be obtained, but again did not mention private physicians or records. The Veteran stated in his August 2010 appeal that he had submitted all the evidence he had to support his claim. The duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski,1 Vet. App. 190, 193 (1991), reconsidered,1 Vet. App. 406 (1991) (while the VA is obligated to assist a claimant in the development of a claim, there is no duty on the VA to prove the claim). The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in December 2009; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The VA examiner asked the Veteran for the history of his symptoms and treatment for sinusitis, performed a complete physical examination, and examined a computed tomography (CT) scan of the Veteran's paranasal sinuses which was performed the same day. The VA examiner then provided his opinion whether there was a current disability of sinusitis, whether current sinusitis was related to sinusitis during service, and provided his rationale for those opinions. Aside from the Veteran's vague reference to private treatment discussed above, there is no indication in the record that any additional evidence, relevant to the issue of entitlement to service connection for sinusitis, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records indicate he was diagnosed with sinusitis once during service, in March 1965. There are no other documented diagnoses of sinusitis or complaints by the Veteran of nose or sinus problems during service. Although the Veteran stated in his substantive appeal he was treated for sinusitis on April 25, 1969, his service treatment records indicate that was the date of his separation examination; he did not report any problems with his ears, nose or throat, and the examiner stated his nose and sinuses were normal. The Veteran was diagnosed with sinusitis by VA physicians in July 2007 and March 2008, and at his December 2009 VA examination. In December 2009 the VA examiner noted mild nasal septal deviation to the left side anteriorly and mucopus present in the left middle meatus, with inflamed and edematous nasal tissues, and obstructed left nasal cavity. A CT scan of the paranasal sinuses showed the left maxillary sinus to be nearly completely opacified with air bubbles and fluid. The examiner diagnosed acute maxillary sinusitis on the left side. Despite evidence of diagnoses of sinusitis, the record does not relate the Veteran's sinusitis to his military service. The only medical opinion of record which speaks to this issue, provided by the December 2009 VA examiner, concluded that the Veteran's current sinus disorder was acute, there was no evidence of record of a chronic sinus or nasal problem, and the current sinusitis was not related to his single occasion of sinusitis in service. The rationale provided noted that there was a long gap of time between the single in-service episode of sinusitis in March 1965, and the examiner's December 2009 diagnosis of acute sinusitis on the left side. The evidence on record supports the VA examiner's rationale. The Veteran asserted in his substantive appeal that he was treated for sinusitis on another occasion during service, on April 25, 1969. However, his service treatment records indicate that was the date of his separation examination, and he did not report any problems with his ears, nose or throat, and the examiner stated his nose and sinuses were normal. The Veteran also contends in his substantive appeal that he has continued treatment for sinusitis since service discharge in 1969, by both civilian and VA physicians. However, the first documented evidence of post-service diagnosis and treatment is with the VA in July 2007. As discussed above, the Veteran has not provided any private treatment records or names of private physicians. Most critically, at the VA examination in December 2009 the examiner noted the Veteran did not provide a history of chronic or recurrent sinus infections. This report to the VA examiner is inconsistent with the Veteran's assertion of continuous treatment in his substantive appeal. Further, although the Veteran stated in his November 2009 response to the duty to assist letter that he had been treated by the VA since 2005, only VA treatment records beginning in April 2006 are of record. Even if the Veteran had indeed been treated since the beginning of 2005 for sinusitis, however, there would still be a gap of forty years between his one instance of in-service sinusitis and any post-service diagnosis. Thus, despite the Veteran's assertions of treatment since his service separation, continuity of symptomatology is not shown. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when a veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of the claimed condition). The Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. For that reason, and in light of the VA examiner's negative nexus opinion, service connection for sinusitis is not warranted. Because the evidence of record does not relate the Veteran's sinusitis to his military service, the preponderance of the evidence is against his claim for entitlement to service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for sinusitis is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs