Citation Nr: 1124455 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 11-06 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a sinus disorder, also claimed as acute nasopharyngitis. 2. Entitlement to an initial evaluation in excess of 10 percent for coronary artery disease (CAD) with stent placement, status-post coronary artery bypass graft (CABG). 3. Entitlement to an initial compensable evaluation for hypertension. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from April 1966 to April 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2009 by a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his March 2011 substantive appeal, the veteran also raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). This matter has not yet been adjudicated. Accordingly, it is referred to the RO for appropriate action. The issues of (1) entitlement to an initial evaluation in excess of 10 percent for CAD with stent placement, status-post CABG; and (2) entitlement to an initial compensable evaluation for hypertension 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 was treated in service for acute nasopharyngitis, a cough, post-nasal drip, and congestion, and credibly states that he experienced a continuity of sinus symptoms since active service. 2. The medical evidence shows that the Veteran currently has diagnosed allergic rhinitis and chronic sinusitis. 3. Resolving all doubt in the Veteran's favor, the Veteran's sinus condition is related to his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a sinus disorder are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his currently diagnosed sinus condition is related to his period of active military service, and in particular, to his in-service treatment for acute nasopharyngitis. See January 2009 VA Form 21-526; January 2010 notice of disagreement; March 2011 VA Form 9. Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Service treatment records (STRs) associated with the claims file revealed that the Veteran was afforded a clinical evaluation and physical examination in September 1965 prior to entering service. The clinical evaluation was normal and no sinus conditions were found at that time. The Veteran reported a past medical history significant for chronic or frequent colds, but he specifically denied ever having sinusitis or ear, nose, or throat trouble. The Veteran presented to sick call in January 1967 with a one-day history of generalized malaise and sore throat. Examination at that time revealed normal temperature, moderately injected fauces, non-tender cervical nodes and negative auscultation of the chest. The Veteran was given prescription medication and quartered for 48 hours. The Veteran returned to sick call two days later and felt "far sicker." It was noted that the Veteran was coughing frequently and that he felt dyspeic upon walking. The Veteran's temperature was 99.4 degrees, but examination was otherwise unremarkable. X-rays of the Veteran's chest were "not revealing." The Veteran was subsequently admitted for observation "since at this stage an Eaton type pneumonitis cannot be ruled out." The admitting diagnosis was influenza. An addendum associated with this episode of care indicated that the Veteran was not in need of hospitalization and that he was able to perform that duties of his rate. He was thereafter returned to duty. A line of duty determination (LOD) diagnosed the Veteran as having acute nasopharyngitis. See January 1976 LOD. The Veteran was also afforded a clinical evaluation and physical examination in March 1968 prior to separation from service. The clinical evaluation was normal and no sinus conditions were found. The Veteran described his health as "good," and provided a past medical history in which he reported having chronic or frequent colds as well as ear, nose, and throat trouble. A notation on the examination report also indicated that the Veteran had frequent and occasionally severe upper respiratory infections with other symptoms including chest pain, shortness of breath, and headache. These associated symptoms, according to the examiner, were "probably due to anxiety." The Veteran was seen at VA in September 2009 with subjective complaints of sinus congestion, runny nose, and sinus pressure. According to the Veteran, these symptoms were present since service. The impression was chronic sinusitis/rhinitis. The examiner prescribed a trial dose of Claritin/Flunisolide. A follow-up treatment note found that the Veteran was getting some relief with use of these prescribed medications. See December 2009 primary care note. The Veteran was afforded a VA Compensation and Pension (C&P) sinus examination in August 2009. The examiner reviewed the Veteran's claims file. A notation on the examination report indicated that the onset of the Veteran's sinus condition was 1966. According to the Veteran, he had frequent colds prior to service. He also reported having persistent nasal congestion, runny nose, sneezing, red eyes, and headaches during the early part of his period of active service. The Veteran indicated that he currently used nasal spray to manage these symptoms. A physical examination revealed evidence of bilateral nasal obstruction. Magnetic resonance imaging (MRI) of the Veteran's brain taken in March 2009 showed clear paranasal sinuses and mastoid air cells. The impression was allergic rhinitis. The examiner specifically found no evidence of sinusitis. The examiner further found that the currently diagnosed allergic rhinitis was "less likely as not" caused by or the result of acute nasopharyngitis in service. In support of this contention, the examiner noted that the Veteran reported a history of frequent colds prior to active duty. However, he was seen only on one occasion in service for acute nasopharyngitis which resolved. In addition, the examiner found no evidence of chronic sinusitis in service or at the time of the examination. Social Security Administration (SSA) records associated with the claims file revealed that the Veteran was awarded disability benefits as a result of being status-post CABG. It was also noted that the Veteran had right knee pain and an organic mental disorder. The effective date of this disability award was March 1, 2008. The Veteran submitted a statement in support of his claim dated March 2011. In particular, the Veteran reiterated that he was treated for nasopharyngitis in service. He also received private treatment for this condition by a family physician for several years thereafter. Unfortunately, these records, according to the Veteran, were no longer available. The Veteran stated, however, that these private treatment records would have revealed a continuity of symptoms since discharge from service. Resolving all doubt in the Veteran's favor, the Board finds that the evidence supports a finding of service connection for a sinus condition. Continuity of symptomatology may be established if (1) the condition was "noted" during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) there is medical, or in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); see generally, Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). STRs associated with the claims file showed a diagnosis of and treatment for acute nasopharyngitis. See January 1967 STR and LOD. In addition, in November 1967, he was seen with a cough, post-nasal drip and congestion. On separation, no evidence of an upper respiratory disorder was found, but the Veteran reported that he experienced ear, nose and throat trouble and the examiner noted that he had frequent and occasionally severe upper respiratory infections. Post-service VA treatment records revealed complaints of sinus congestion, runny nose, and sinus pressure. According to the Veteran, these symptoms were present since service. See VA treatment records dated September and December 2009; see also, August 2009 VA C&P examination report. Unfortunately, private treatment records identified as pertinent by the Veteran which would have addressed his report of continuity of symptoms since discharge from service were unavailable for review. Of particular note, however, the Veteran has reported a continuity of sinus symptoms since discharge from service. See VA treatment records, examination reports, and Veteran's statements dated January, August, September, and December 2009, January 2010, and March 2011. The Board finds that the Veteran is competent to make such statements and the Board has no reason to doubt his credibility. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). The Board is aware that the August 2009 VA C&P examiner expressed the opinion that the Veteran's currently diagnosed allergic rhinitis was "less likely as not" caused by or the result of acute nasopharyngitis in service. It is unclear from the examination report the extent to which the VA examiner considered the Veteran's reports of continuity of symptoms since discharge from service in reaching this conclusion. However, a notation on the examination report indicated that the onset of the Veteran's symptoms was 1966 (i.e., during his period of active service). As the credible, competent, and probative lay statements show in-service treatment for upper respiratory symptoms, a continuity of symptoms since service, and currently diagnosed allergic rhinitis and chronic sinusitis, service connection for a sinus condition is granted. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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). The Board is granting in full the benefit sought on appeal in this case. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for a sinus disorder is granted. REMAND The Veteran alleges that his service-connected CAD and hypertension are worse than originally rated and that he is entitled to higher initial disability ratings. The RO granted service connection for CAD with stent placement, status-post CABG, in the December 2009 rating decision on appeal. The RO evaluated this disability as 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7005. The RO also awarded service connection for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101. The RO assigned a non-compensable evaluation for this disability. The effective dates assigned for the award of CAD and hypertension was January 14, 2009, the date of receipt of the original service connection claim. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2010). This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Here, the Veteran was afforded VA C&P examinations to assess his heart and hypertension in November 2009. Subsequently, however, the Veteran indicated that the condition of these disabilities worsened. See statements dated January 2010 and March 2011. Therefore, the Board finds that new VA examinations are needed to assess the severity of his service-connected CAD and hypertension (to include any residuals thereof). The Veteran also receives medical care through VA. VA is required to make reasonable efforts to help the Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, the RO should request all VA medical records pertaining to the Veteran from December 2, 2009. In addition, the Veteran should be contacted and asked to identify any and non-VA sources of treatment for his CAD and hypertension (and residuals thereof) that are not already of record. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all non-VA sources of treatment for his coronary artery disease and hypertension (including any residuals thereof) that are not already of record. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent private records, which are not already of record. All efforts to obtain these records should be fully documented. If these records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). 2. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran from December 2, 2009. If there are no VA medical records dated after December 2, 2009, this should be documented in the claims folder. 3. After all of the above development is completed, schedule the Veteran for a VA examination to assess the nature and severity of his currently service-connected coronary artery disease. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner must assess the severity of the Veteran's coronary artery disease, and include a discussion of the associated symptoms, including but not limited to dyspnea, fatigue, angina, dizziness, syncope, cardiac hypertrophy, dilation, left ventricular dysfunction, and/or congestive heart failure, if any. If evidence of congestive heart failure is found, the examiner is asked to discuss the frequency and severity of this condition (i.e., chronic or acute (if acute, how many times in the past year)). The examiner is also asked to discuss the Veteran's heart workload in terms of ejection fraction and METs. The examiner must provide a complete rationale for any stated opinion. 4. Schedule the Veteran for a VA examination to assess the nature and severity of his currently service-connected hypertension. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner must assess the severity of the Veteran's hypertension. The examiner should also state whether the Veteran's hypertension requires continuous medication for control. The examiner must provide a complete rationale for any stated opinion. 5. After the requested examinations have been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. The examination reports should be returned to the examiner if they are deficient in any manner. 6. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2010). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs