Citation Nr: 1124205 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 06-17 410 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a claimed sinus disorder. 2. Entitlement to service connection for claimed allergies. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to May 1994. The matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the RO. In September 2009, the Board remanded the case to the RO (via the Appeals Management Center (AMC), in Washington, D.C.) for additional development of the record. FINDINGS OF FACT 1. The Veteran is shown to have developed and received treatment for recurrent upper respiratory manifestations due to sinusitis and allergies during his extensive period of active service. . 2. The Veteran currently is shown as likely as not to experience symptomatology consistent with chronic sinusitis and allergies that had their clinical onset during service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by a chronic sinusitis is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2010). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by a chronic allergies is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (2000) 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 & Supp. 2010)) redefined VA's duties to notify and to assist claimants in the development of their claims. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). To establish a service connection for an injury, a veteran is required to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the a veteran is required to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 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. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran asserts that he developed sinusitis and allergies during his extensive period of active service. Notably, the RO recently granted service connection and assigned a 30 percent rating for asthma, effective on March 22, 2004. The service treatment records show that the Veteran was treated for sinus congestion in August 1981, October 1981, February 1983, May 1983, January 1984, and January 1986 and was diagnosed with sinusitis in April 1993. Moreover, the Veteran is shown to have been treated for nasal congestion and for various allergies, to include a hypersensitivity to grass, mold, cats, dust and cockroaches since 1979, and to have undergone allergy hyposensitization therapy. A December 1979 consultation report during service indicated that the Veteran had some wheezing as a child, without significant symptoms and that, from 1972 to 1977, he experienced an exacerbation in symptoms, including during boot camp. The physician noted that the Veteran was counseled to utilize environmental control in his home environment, to include dust and allergy controls and was to begin allergy injection therapy as soon as extract could be prepared. A December 1987 allergy/immunology report reflected a history of being hospitalized for wheezing in 1984, and treatment for respiratory allergens. Additionally, the service treatment records show that the Veteran was repeatedly treated for various upper respiratory infections, rhinorrhea, cough and nasal congestion throughout his active service. The VA treatment records also show treatment for sinus pain and allergies since 2001 with diagnoses of allergic rhinitis and sinusitis. They also show findings of upper respiratory infections, colds, pharyngeal erythema and post nasal drip. The Veteran underwent a tonsillectomy uvulectomy in May 2007 to treat his various respiratory disorders. In conjunction with the current appeal, the Veteran underwent a VA examination in March 2010 there were no current complaints referable to sinusitis. Further, the examiner noted that, although allergy testing was done and the Veteran reported being allergic to dust, mold and cats, there were no complaints or current treatment for allergies. On respiratory examination, the Veteran's lung fields were noted as clear to auscultation, without abnormal breath sounds or wheezing. Pulmonary function testing revealed mild lower airway obstruction that was attributed to asthma. The Veteran was diagnosed with asthma. A July 2010 VA examination report reflects findings of a history of dyspnea, non-productive cough, productive cough, wheezing, bronchiectasis, asthma, and two episodes of respiratory failure. The X-ray studies revealed no active cardiopulmonary disease, pneumothorax, hemothorax or pulmonary contusion. The Veteran was diagnosed with atopic asthma with chronic airflow obstruction, requiring chronic medication for control, with multiple persistent acute attacks each year, that the examiner believed was related to the Veteran's military service. The examiner noted that the Veteran's adult asthma was precipitated by concomitant allergen exposure and strenuous exercise during his early service years. The examiner opined that there is ample evidence of treatment and hospitalization for severe asthma. The Board finds the March 2010 and July 2010 VA examination reports to be probative value in the sense that they tend to confirm the Veteran's lay assertions of having of ongoing upper respiratory symptomatology that had its clinical onset during service. However, neither report fully addressed the Veteran's documented in-service and post-service medical history of sinusitis and for allergies in arriving at a diagnosis. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Board has the authority to "discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a Veteran's claim may still prevail if the Veteran was diagnosed with a chronic disability during the pendency of the appeal, even if most recent medical evidence suggests the disability resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, based on a careful review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran as likely as not is experiencing manifestation consistent with chronic sinusitis and allergies that had their clinical onset during his extensive period of active duty. The Board recognizes that the Veteran is competent to observe and describe the ongoing presence of sinus and allergy manifestations since service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Further, the Veteran's statements describing symptoms at the time were later supported by medical diagnoses that corroborate his reported symptomatology. In fact, with respect to the allergy disorder, as noted, the July 2010 examiner opined that the Veteran's adult asthma was precipitated by concomitant allergen exposure and strenuous exercise during his early service years. Thus, in resolving all reasonable doubt in the Veteran's favor, service connection for chronic sinusitis and allergies is warranted. ORDER Service connection for a sinusitis is granted. Service connection for allergies is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs