Citation Nr: 1132599	
Decision Date: 09/06/11    Archive Date: 09/12/11

DOCKET NO.  07-34 205	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for sinusitis.

2.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD)

3.  Entitlement to an initial disability rating in excess of 20 percent for fibromyalgia with migraine headaches.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Michael J. A. Klein, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1981 to April 1982, January 1983 to January 1986, September 1987 to June 1988, and from January 1991 to April 1991.

This appeal comes to the Board of Veterans' Appeals (Board) from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, inter alia, denied the Veteran's claim for service connection for sinusitis, and granted her claims for service connection for PTSD and fibromyalgia.  

The issues of entitlement to a higher initial rating for the Veteran's service-connected PTSD and fibromyalgia are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  There is no competent or credible evidence that the Veteran experiences a current sinusitis disorder.

2.  There is no competent or credible evidence of any in-service incurring event or onset related to any current sinus disorder, or of any connection between any period of active military service and any current sinus disorder.


CONCLUSION OF LAW

Sinusitis was not incurred in or aggravated by the Veteran's military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of the VCAA letter from the agency of original jurisdiction (AOJ) to the Veteran dated in May 2005.  That letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by:  (1) informing her about the information and evidence not of record that was necessary to substantiate her claim for service connection for sinusitis; (2) informing her about the information and evidence VA would seek to provide; and (3) informing her about the information and evidence that she was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).   

Furthermore, the March 2006 letter from the AOJ advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Thus, the Veteran has received all required notice in this case, such that there is no error in the content of her VCAA notice.    

Concerning the timing of her VCAA notice, the Board sees the AOJ did not provide the Veteran all necessary Dingess-compliant notice prior to initially adjudicating her claims in January 2006, the preferred sequence.  However, in Pelegrini II, the United States Court of Appeals for Veterans Claims (Court) clarified that in these situations VA does not have to vitiate that initial decision and start the whole adjudicatory process anew, as if that decision was never made.  Rather, VA need only ensure that the Veteran receives (or has received) content-complying VCAA notice, followed by readjudication of her claim, such that the intended purpose of the notice is not frustrated and she is still provided proper due process.  Id. 120.  In other words, she must be given an opportunity to participate effectively in the processing of her claim.  The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that a SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV).  As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication.  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the AOJ provided additional Dingess-compliant VCAA notice in March 2006; however, the AOJ failed to cure the timing of its notice by issuing a subsequent decision.  In the case of timing error, the Court recently held that the failure of the claimant to submit additional evidence following proper notification may constitute a waiver of readjudication and render the error harmless.  Medrano v. Nicholson, 21 Vet. App. 165, 173 (2007).  Here, the Veteran did not submit any additional pertinent evidence in response to the March 2006 notice letter.  The absence of a subsequent readjudication decision after these notices is not prejudicial because the result of such a readjudication on the exact same evidence and law previously considered would be no different than the previous adjudication.  Medrano, 21 Vet. App. at 173.  Therefore, considering that the Veteran has not submitted additional pertinent evidence after receiving the March 2006 notice letter, the Board concludes that a remand for readjudication of her claims after the March 2006 provision of Dingess-compliant notice is not required.

In addition to notification, VA is required to assist the Veteran in finding evidence to support her claims.  See 38 U.S.C.A. § 5103A.  The AOJ has secured the Veteran's service treatment records (STRs), certain service personnel records (SPRs), and VA medical treatment records.  The Veteran has submitted personal statements and certain private treatment records.  The Veteran has not provided authorization for VA to obtain any additional medical records, nor has she indicated that such records exist.  Therefore, the Board concludes that the duty to assist the Veteran in gathering information to advance her claim has been met.  38 U.S.C.A. § 5103.

The Board notes that no medical examination has been conducted or medical opinion obtained with respect to the Veteran's claim for service connection for sinusitis.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  However, the standards of McLendon are not met in this case.  Under McLendon v. Nicholson, 20 Vet. App. 79, 82 (2006), in a disability compensation (service connection) claim, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  In this regard, as reviewed in greater detail below, the Veteran has not described any current sinus disorder (in either symptoms, diagnosis or treatment), nor is there evidence to show a current sinusitis condition has been treated during or after her application for service connection for this disorder.  However, even were the Board to concede that there was sufficient evidence to establish that the Veteran experiences a current sinusitis disorder which was eligible for service connection, the Veteran has not submitted, or directed VA to obtain, any evidence to show that this disorder began during her military service, has continued since her service, or is in any way connected to her military service.  Thus, the minimal standard for requiring a VA medical examination and opinion has not been met, and the Board is satisfied that the duty to assist has been met.  38 U.S.C.A. § 5103A.  


Governing Laws for Service Connection

Service connection may be granted if it is shown the Veteran developed a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service), 1153 (aggravation).  

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).  

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed).

A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above.  38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr, 21 Vet. App. at 307.  Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation.  Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  For continuity of symptomatology, although the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).

Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Competent medical evidence may mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C.A. §§ 1154(a).  With regard to lay evidence, the Federal Circuit Court recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Id. at 1316.  Instead, under 38 U.S.C.A. §§ 1154(a), 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, (e.g., a broken leg), (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.  Jandreau, 492 F.3d at 1377 (footnote omitted).  For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer.  Id. at 1377 n.4.

In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and evidence of a nexus between the present disability and the post-service symptomatology.  Barr, 21 Vet. App. at 307-09.  But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed."  Id. at 308.  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Analysis - Service Connection for Sinusitis

The Veteran has asserted that she merits service connection for sinusitis.  See the Veteran's April 2005 claim.  The Veteran has not described any current sinusitis condition, nor has she indicated any incurring incident, or history of symptomatology.  In fact, the Veteran's evidence provided in support of her claim consists purely of the simple assertion of service connection for sinusitis submitted at the time of her initial claim.  In particular, in the area directed for such information in her April 2005 application, the Veteran did not provide any relevant evidence regarding this condition, nor has she provided any further information since that time.  The Board notes that the duty to assist is not a one-way street; a claimant cannot remain passive when she has relevant information.  See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the appellant, not a duty to prove her claim while the appellant remains passive); accord Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

The Board notes that there is some relevant medical evidence, indicative of some history of sinus related issues.  The Veteran's VA medical treatment records indicate that, in August 2003, she was diagnosed with and treated for allergic rhinitis.  An April 2004 VA medical treatment record subsequently indicates treatment for "[a]cute sinusitis."  A June 2005 VA medical treatment record indicated that she had prior history of treatment for sinus related problems, and finally a January 2006 x-ray noted indicated a normal study of the Veteran's paranasal sinuses.  The Board also notes that the January 2006 VA psychiatric examination reported a history of sinus surgery in 2000, and the January 2006 VA medical examination for fibromyalgia noted some "sinus problems" during the Veteran's gulf service.  Finally, a January 2006 private treatment record from the Rainbow City Medical Center noted the Veteran had history of "chronic sinusitis," although no treatment was indicated at the time.  

A review of the above history shows that the Veteran's claim was submitted in April 2005, about a year after the last record of actual direct treatment for a sinus disorder.  Subsequent records do not show, nor has the Veteran described, any current relevant disorder that might be considered for service connection.  Nor does the January 2006 private treatment record from the Rainbow City Medical Center indicate any basis for the description of the Veteran's sinusitis as "chronic" or indicate any actual sinusitis treatment at that time.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110, 1131.  The Court has held that "this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim."  See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) However, in McLain, the Veteran was diagnosed with the disorder and then the disorder resolved.  In the present case, the Veteran's most recent treatment for any relevant disorder occurred about a year prior to the current claim.  As such, the Board concludes that there is no lay or medical evidence of any current sinus disorder that may be considered for service connection.

Without competent medical evidence of treatment for, or a diagnosis of, any current sinusitis disorder, the Veteran's claim must be denied.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed).  

However, even were the Board to concede a current condition, the Veteran has not provided, nor does the record contain, any evidence that of any relevant incurring incident during service or that any current sinus condition has a connection to her military service except for the single note in the January 2006 examination of fibromyalgia that the Veteran experienced "sinus problems" in the Gulf.  Again, the Board reiterates that the Veteran must submit evidence in her favor that is in her possession.  See Wamhoff, supra.  As such, the evidence of record does not show any in-service incident or any connection between a current sinus disorder and her military service to allow for a grant of service connection.  See Shedden, at 1167.  Finally, there is no evidence of a chronic sinus disorder during service or continuity of symptomatology of such a disorder after service.  38 C.F.R. § 3.303(b); Savage, at 494-97.

In conclusion, having reviewed all of the evidence contained within the record in the light most favorable to the Veteran, the Board finds that the preponderance of the evidence is against service connection for sinusitis with no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for sinusitis is denied.


REMAND

The Board finds that a remand is necessary to obtain the Veteran's current VA medical treatment records and more current VA medical examinations to address the severity of the Veteran's service-connected PTSD and fibromyalgia disorders.  

First, the Veteran's VA treatment records on file only date to September 2005.  If she has since received additional relevant treatment, these records should be obtained.  38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§  3.159(c)(2), (c)(3) (2010); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA).

Second, the Board notes that the Veteran's representative in the July 2011 Informal Brief of Appellant in Appealed Case (Brief) indicated that the Veteran's claims should be remanded for more current assessments of her PTSD and fibromyalgia.  In this regard, in both instances the last VA medical examinations conducted for these disorders were provided to the Veteran in January 2006.  

Pursuant to 38 U.S.C. § 5103A, VA's duty to assist includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim."  This duty includes providing an examination that is adequate for rating purposes.  See 38 C.F.R. § 4.2.  The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.327(a); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("[W]here the appellant complained of increased hearing loss two years after her last audiology examination, VA should have scheduled the appellant for another examination").  See also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding 23-month-old examination too remote to be contemporaneous where appellant submitted evidence indicating disability had since worsened), VAOPGCPREC 11-95 (1995).  

In this regard, it has been almost six years since the last examinations regarding the Veteran's PTSD and fibromyalgia.  Further, the medical records and examinations have indicated that these disorders have varied over time.  Therefore, it is clear that, after any necessary current treatment records have been obtained, the Veteran should be provided with new examinations to assess her current disability levels due to her PTSD and fibromyalgia.  

Accordingly, the case is REMANDED for the following action:

1.	Ask the Veteran to identify all health care providers that have treated or evaluated her for her service-connected PTSD and fibromyalgia, and attempt to obtain records from each health care provider that she identifies who might have available records of such treatment, if not already of record.

	Regardless of the Veteran's response, obtain all current VA medical treatment records relevant to her PTSD and fibromyalgia, dating from September 2005, as this is the most recent VA treatment record associated with the claims file.  If these records are unavailable, do not exist, or further attempts to obtain them would be futile, a negative reply to this effect is required and must be associated with the claims file.  

2.	After all relevant records and/or responses have been associated with the claims file, schedule the Veteran for a VA examination, by an appropriate specialist, to determine the current nature and severity of her service-connected fibromyalgia.  The Veteran is hereby advised that failure to report for her scheduled VA examination, without good cause, may have adverse consequences to her claim for a higher initial rating for fibromyalgia.  

	All indicated tests and studies should be performed as deemed necessary by the examiner.  The claims folder should be made available to the examiner for review for the examination and the examination report should indicate whether such review was accomplished.  

	The examination report should include a complete discussion of the Veteran's subjective complaints as well as a complete review any functional loss of use of any joint due to her fibromyalgia, including all of the relevant manifestations of her disorders, and should specifically note the effects of her fibromyalgia during flare-ups.  The examiner should also provide a thorough review of the effects of this disorder on her employment and daily activities.  

	The examiner should also specifically indicate if her symptoms are constant or not, and if her symptoms respond to therapy.  

	The examiner should provide a complete rationale and explanation for any opinion provided.

3.	Then, after all relevant records and/or responses have been associated with the claims file, schedule the Veteran for a VA psychiatric examination, by an appropriate specialist, to determine the current nature and severity of her current service-connected PTSD.  The Veteran is hereby advised that failure to report for her scheduled VA examination, without good cause, may have adverse consequences to her claim for a higher rating for PTSD.  

	All indicated tests and studies should be performed as deemed necessary by the examiner.  The claims folder should be made available to the examiner for review for the examination and the examination report should indicate whether such review was accomplished.  The examination report should include a complete discussion of the Veteran's subjective complaints, findings on mental status examination, and a multi-axial diagnosis with Global Assessment of Functioning (GAF) score.  

	Furthermore, the examiner should discuss how the psychiatric manifestations of this disability impact her activities of daily living, including her employment.

	The examiner should provide a complete rationale and explanation for any opinion provided.

4.	Following completion of the above development, review the Veteran's claims file and any new information obtained to ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required.  If further action is required, it should be undertaken prior to further adjudication of the claims.

5.	Then, readjudicate the Veteran's claims for higher initial ratings for service-connected PTSD and fibromyalgia.  If these claims are not granted to the Veteran's satisfaction, send her and her representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or 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).



______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs