Citation Nr: 1134823 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-01 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for asthma, to include as secondary to service-connected allergic rhinitis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran had active service from October 2000 until June 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from February 2006 and October 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California and Houston, Texas. During the pendency of this appeal, jurisdiction for all issues was transferred to the RO in Houston, Texas. In June 2009 this matter was remanded for additional development. It has since been returned to the Board for further adjudication. FINDINGS OF FACT 1. In-service sinusitis was acute and resolved without residuals. Current sinusitis is not shown. 2. Asthma was not manifest in service, and is unrelated service. 3. Asthma, to include any increase or aggravation, is unrelated to a service-connected disease or injury. CONCLUSIONS OF LAW 1. Sinusitis was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). 2. Asthma was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). 3. Asthma is not proximately due to or the result of a service connected disease or injury. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) provides that 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See, Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in December 2005 and April 2007 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Based on the foregoing, adequate notice was provided to the appellant prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010); see Golz v. Shinseki, 590 F.3d 1317, 1320 (2010). Furthermore, "[t]he duty to assist is not boundless in its scope" and "not all medical records . . . must be sought-only those that are relevant to the [V]eteran's claim." Golz at 1320, 21. Here service records have been obtained, as have records of private and VA treatment. Furthermore, the Veteran was afforded multiple VA examinations, including that of May 2010. During that examination, the examiner was provided the Veteran's claims file for review, noted the Veteran's history, considered the evidence of record including the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. The Board notes that it is "entitled to assume the competence of a VA examiner." Cox v. Nicholson, 20 Vet. App. 563, 596 (2007). See also, Hilkert v. West, 12 Vet. App. 145, 151 (1999). Examination of the appellant is found to have been adequate. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See, Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the claims file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Applicable Law The Veteran has claimed entitlement to service connection for sinusitis and asthma, to include as secondary to service-connected allergic rhinitis. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(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). Holton v. Shinseki, 557 F.3d 1362 (C.A. Fed. 2009) (March 5, 2009). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2010). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by service. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. Thus, in this case, in order to warrant service connection for asthma on a secondary basis, the evidence must show that it was caused or aggravated by a service-connected disease or injury. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Board notes that the evidence establishes the Veteran had service during the Persian Gulf War. However, she did not have service in the Southwest Asia theater of operations, and thus is not a "Persian Gulf Veteran" as contemplated by 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (West 2010). As an initial matter, the Veteran has not alleged that the claimed disabilities were incurred in combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. Factual Background On enlistment examination in May 2000, the Veteran's sinuses and lungs were normal, and she affirmatively denied any history of sinusitis, asthma, and shortness of breath. In an August 2002 report of medical history, the Veteran indicated that her sinuses had recently been bothering her. She was subsequently diagnosed with allergies, and prescribed Flonase. In January 2003, the Veteran was diagnosed with sinusitis and prescribed "Z-pak." In March 2003 the Veteran reported a sore throat, ear pain, and pain over the sinuses. She gave a prior medical history of sinusitis and was prescribed medication for the disorder. In April 2003, the Veteran was seen for a refill on allergy-related medication. At that time, it was noted that she did not have asthma. She was also seen in April 2003 regarding a shellfish allergy, at which time she endorsed congestion, rhinorrhea, sneezing and nasal itching. In a May 2004 report of medical assessment it was indicated that the Veteran had chronic sinusitis that was being treated with Zyrtec. Following separation from service in June 2004, an April 2005 note from a private facility indicated mild persistent asthma, as well as extrinsic (i.e. allergic) asthma without status asthma. Zyrtec was being used for treatment of allergic rhinitis. The Veteran underwent VA examination in September 2005. At that time she endorsed a history of allergic rhinitis throughout her life, with seasonal variations. She had itchy eyes, sneezing, runny nose and sinus headaches. The Veteran denied asthma, and said that when she does not take Zyrtec, she cannot breathe through her nose. She was no longer taking Flonase and denied sinus infections. On physical examination, the sinuses were nontender and nasal mucosa was pink and moist. The examining physician diagnosed the Veteran with allergic rhinitis, but specifically noted that there was no diagnosis of recurrent, acute or chronic sinusitis. On private consultation in May 2007, the Veteran reported a history of nasal allergies her entire life, and asthma for the prior two years. Asthmatic symptoms included wheezing, chest tightness and shortness of breath. The assessment indicated that her symptoms were suggestive of bronchial asthma or hyperactive airway disease, but additional follow-up was needed. Skin testing had revealed significant positive reactions to dust mites, cats, molds and pollens as well as positive reactions to shell fish. Notes indicate that the Veteran's bronchial asthma had allergic component associated with it. On VA examination in July 2007, the Veteran endorsed acute asthma attacks twice per week. Following additional testing, the Veteran was diagnosed with asthma, not due to sinusitis. The examiner noted that a review of service treatment records revealed no medical documentation of sinusitis other than January 2003 when the Veteran was placed on Z-pak. The impression was of a lack of mucosal thickening or evidence of fluid in the sinuses. Furthermore, in diagnosing the Veteran, the examiner stated that she had denied any reoccurrence of sinusitis since 2005. The examiner opined that the record "does not support the onset of the disease," and that is it not at least as likely as not that the onset of sinusitis was during service. In July 2009 a VA examiner indicated that pulmonary function testing in May 2007 has been suggestive of bronchial asthma and hyperactive airway disease. The Veteran endorsed symptoms of daily nasal congestion and excess nasal mucous in the morning with itchy nose, watery eyes and sneezing all day. She also reported occasional headaches and maxillary tenderness. The Veteran denied having had any sinusitis since her last evaluation in 2007. After recording the Veteran's report of her asthma-related symptomatology, the examiner concluded that it was at least as likely as not that asthma was related allergic rhinitis. In so concluding, she cited to an Internet source reporting "increasing evidence on the links between allergic rhinitis and asthma . . . from epidemiological, immunological and clinical studies." The Board notes that the examiner was a physician assistant, although the final report was co-signed by a supervising physician. On VA examination in May 2010, the Veteran's claims file was reviewed and her history reported. On a physical examination turbinates were enlarged bilaterally, with 50 percent obstruction on the right and 30 percent obstruction on the left. There was no tenderness to percussion of the face. Based on the Veteran's history and current examination, the examiner diagnosed the Veteran with perennial allergic rhinitis and asthma. She stated that the preponderance of medical evidence and expertise does not support rhinitis as a cause or proximal cause of chronic asthma. Rather, both asthma and allergic rhinitis are caused or related to genetic and environmental factors. She stated that asthma was not caused or related to service, and noted that the disorder began after service. Sinusitis Service connection for sinusitis was previously addressed and denied in rating decisions of October 2004 and March 2005. The Veteran was informed of these decisions and her right to appeal, but failed to submit a timely notice of disagreement. When a claimant fails to timely appeal an RO decision denying her claim for benefits, that decision becomes final and can no longer be challenged. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded. Pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Notwithstanding the requirement for new and material evidence to reopen a claim however, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim without regard to the rules relating to reopening. 38 C.F.R. § 3.156(c)(1) (2010). Here the Board notes that at the time of the prior rating decisions, the only service treatment records available related to psychiatric treatment, with the exception of a single report of a history of chronic sinusitis in May 2004. Since that time, additional relevant service records have been located and associated with the claims file. Accordingly, the Board finds that the claim is ripe for reconsideration and proceeds to adjudicate the matter de novo. 38 C.F.R. § 3.156(c) (2010). Based on the foregoing evidence, the service treatment records show a diagnosis of sinusitis, but no reoccurrence after April 2003, more than a year before separation. Again, service connection may 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) (2010). A review of the post-service evidence, however, leads to the conclusion that the Veteran no longer has sinusitis, and that the in-service occurrence was acute and transitory. In considering the lay and medical history as detailed above, the Board notes that the appellant is competent to give evidence about what she has experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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. In the present case, breathing and nasal symptoms are capable of lay observation and thus the Veteran's statements constitute competent evidence. The Board must now consider the credibility of such evidence. Again, service and post-service records reflect acute occurrence of sinusitis during service, but not since 2005. In fact, the Veteran herself has denied any post-2005 sinusitis, and in 2005 the VA examiner specifically noted that the Veteran did not have recurrent, acute or chronic sinusitis. While the Board finds the Veteran's testimony regarding symptomatology has been internally consistent and verified by objective examinations, neither the lay or medical evidence of record indicates that the Veteran has sinusitis. Furthermore, with regard to the requirement that a claimant have a current disability before service connection may be awarded for that disability, such 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. McClain v. Nicholson, 21 Vet. App. 319 (2007). Nonetheless, here the Board finds that the Veteran does not have a current disability due to service-related disease or injury, and has had no such disability at any time during the period on appeal. The Veteran is not competent to diagnose sinusitis based on her observed symptomatology, and thus to the extent that her denial of sinusitis since 2005 amounts to an endorsement of sinusitis in 2005, the Board finds such endorsement to be of no probative value in establishing that the claimed disorder was present at any point during the period on appeal. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Asthma Service treatment records do not indicate any in-service reference or complaint of asthma, and in April 2003 it was noted that the Veteran did not have asthma. Nonetheless, service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service or is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. §§ 3.300(c); 3.303(d); 3.310(a) (2010). Here however, the evidence of record leads to the conclusion that asthma is not related to active service or a service-connected disease or injury for the reasons discussed below. With regard to the Veteran's testimony, the Board recognizes that she is competent to report on observable symptomatology such as that related to breathing, etc. Layno v. Brown, 6 Vet. App. 465 (1994). However, attributing a causal connection between the onset of such symptomatology and either service or service-connected allergic rhinitis is beyond the realm of lay competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly the Veteran's statements averring to the etiology of her current symptomatology are not competent and of no probative value. The Board has been presented with competing competent evidence regarding the etiology of the Veteran's asthma. In considering the evidence, it is noted that the Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Additionally, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the VA examiner in July 2009 stated that it is at least as likely as not that asthma was related to allergic rhinitis. The Board notes, however, that in addition to being a physician's assistant, a careful reading of the final conclusion indicates that while she relates asthma and service-connected allergic rhinitis, she makes no statement actually endorsing a causal relationship. In fact, after stating that "it is at least as likely as not that the Veteran's asthma is related to allergic rhinitis," she quotes an article reporting that "up to 40 [percent] of patients with allergic rhinitis also have asthma," and that, "patients with allergic rhinitis are at three times the risk of developing asthma as compared with those without allergic rhinitis. . . . Rhinitis frequently precedes asthma . . . suggesting that upper airway disease is a risk factor for asthma." In other words, the rationale for the opinion did not address causation, per se, but more a co-existence frequently seen between the two conditions. The Veteran has also submitted into the record several articles endorsing a relationship between allergic rhinitis and asthma. These articles indicate that there is a statistical relationship between the development of allergic rhinitis and the likelihood of developing asthma, and vice versa. Medical evidence that is speculative, general or inconclusive in nature cannot alone establish the nexus component of a claim for service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). While the submitted treatise evidence is of some probative value, the Board finds that even when read in the context of the July 2009 VA examiner's opinion, such evidence does not provide "a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Wallin v. West, 11 Vet. App. 509, 514 (1998). With regard to statements made by the VA examiner in 2009, and the treatise evidence submitted by the Veteran, the Board finds such evidence is probative only to the extent that it establishes the fact that allergic rhinitis is one risk factor that may be associated with developing asthma. It is a logical fallacy to conclude that simply because one event often follows another, there is a causal relation between the two. The Court of Appeals for Veterans Claims (CAVC) has rejected the notion that an association between two disorders is tantamount to causation. Specifically, in Hyman v. Shinseki 2010 WL 3075331, Vet. App. (2010) CAVC held that, for example, "it is possible for there to be a relationship between [posttraumatic stress disorder (PTSD)] and heart disease without PTSD being a condition that produces heart disease." Id, at 2. In that case, as in the immediate case, the appellant had presented treaties evidence documenting a link between PTSD and heart disease. CVAC stated, however, that a link between manifestations of PTSD and the future development of heart disease did not amount to evidence of a causative relationship between the two. Id. The Court again rejected such logic in Rounsifer v. West, 1998 WL 71973 Vet. App. (1998) when it held that a VA examiner's opinion suggested a correlation without indicating a causation between that appellant's asthma and his elevated blood pressure readings. Id. at 3. [The Board acknowledges that Hyman and Rounsifer are non-precedential decisions, but notes that a non-presidential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992).] Here, crucially, the evidence which has been submitted by the Veteran and the conclusions of the VA examiner in 2009, identify only a correlation between the existence of asthma and existence of allergic rhinitis, without indicating a causal relationship. In contrast, the May 2010 examiner, a physician, noted that the Veteran's asthma started after service and that both asthma and allergic rhinitis are related to genetic factors. To the extent that the 2010 examiner identified the causal elements of the development of asthma (e.g. environment and genetics), this is the only evidence of record which points to any specific cause. The Board further notes, that the cause pointed to is not service or a service-connected disease or injury. In sum, the probative evidence of record indicates that asthma began after service and is unrelated to allergic rhinitis or service. Furthermore, there is no evidence indicating or suggesting a link between asthma and any of the Veteran's other service-connected disorders. In conclusion, the preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for sinusitis is denied. Service connection for asthma is denied ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs