Citation Nr: 1136799 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 08-05 543 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a sinus condition, to include sinusitis and sarcoidosis. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to April 1975. This case came before the Board of Veterans' Appeals (Board) initially on appeal from a May 2006 rating decision in which the RO, in pertinent part, determined that new and material evidence had not been submitted to reopen the Veteran's previously-denied claim for service connection for lumbosacral strain and denied service connection for sarcoidosis of the sinuses. In a January 2010 decision, the Board determined that new and material evidence had been received and reopened the Veteran's claim for service connection for a low back disability and remanded both of the above claims for additional development. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no evidence that the Veteran's sinusitis or sarcoidosis was manifested in service or within one year after her discharge from service in April 1975, and the most probative medical opinion of record is against either disorder being related to the Veteran's active duty. CONCLUSION OF LAW The criteria for service connection for a sinus condition, to include sinusitis and sarcoidosis, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties of Notice and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate a claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a February 2006 pre-adjudication letter, the RO explained to the Veteran what information and evidence was necessary to establish service connection, and her and VA's respective duties for obtaining evidence. Although she was not provided with information regarding how VA establishes disability ratings and effective dates, if service connection is granted, there is no prejudice here as service connection is not being granted. As such, the Board finds that VA's duty to notify has been satisfied. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter decided herein on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, private and VA treatment records. In compliance with the Board's remand, additional VA treatment records were associated with the claims file; however, a response from the Beckley VA Medical Center indicated that there was no treatment records dated from January 1988 to January 1991. The Veteran was given a VA examination in April 2010, and the examiner provided an opinion on the etiology of the Veteran's sinusitis and sarcoidosis. Also of record and considered in connection with the appeal are a copy of the hearing transcript and various written statements provided by the Veteran and her representative, on the Veteran's behalf. The claim was readjudicated in a May 2011 supplemental statement of the case (SSOC) issued in June 2011. Given the foregoing, the Board finds that VA has substantially complied with the Board's previous remand with regard to the claim decided herein. See Dyment v. West, 13 Vet. App. 141, 146-47 (199). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Analysis Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may also 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). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. In addition, certain chronic diseases, such as sarcoidosis, may be presumed to have incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309. When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2011). Here, the Veteran does not assert that the claimed disorders are the result of combat or that she had combat service. In October 1974, the Veteran was treated for boggy mucosa; the impression was viral versus allergic rhinitis. Clinical findings were normal for the nose and sinuses and for the lungs and chest on both the Veteran's March 1974 enlistment and April 1975 separation examinations. On the report of medical history portions of both examinations, the Veteran checked "no" with regard to having or ever had ear, nose or throat (ENT) trouble, chronic or frequent colds, hay fever, shortness of breath (SOB), and sinusitis. During a June 1975 VA examination, the Veteran did not report any sinus/ respiratory problems. On physical examination, the respiratory, nose, sinuses, mouth and throat were clinically normal. No x-rays were taken as the Veteran was six months pregnant. Except for diagnoses of lumbosacral strain by history and six months pregnant; otherwise the physical examination was within normal limits. The first instance of treatment for a sinus problem is an October 1980 private x-ray of the paranasal sinuses revealing some cloudiness in the right maxillary sinus, suggesting the presence of sinusitis. In March 1985, the Veteran was treated for a lower respiratory infection following being chilled the previous weekend. In May 1987, she was treated for mild sinusitis with postnasal discharge and subsequent hoarseness. A December 1990 private treatment record reflects the Veteran's self-reported history of allergies for a number of years characterized by postnasal discharge. She reported that, in 1982, she developed hoarseness and was found to have nodules on a vocal cord that was surgically removed with temporary improvement. She had allergy tests run and was found to be sensitive to a number of things and was put on desensitization therapy in 1987 but had to discontinue therapy due to her work. Following examination, the assessment was allergic rhinitis and hoarseness. X-rays of the sinuses revealed bilateral maxillary sinusitis. Allergy tests revealed sensitivity to dust and dust mites and certain types of grasses. In January 1991, the Veteran was noted to have a nasal septal deviation to the right. February 1991 private sinus x-rays showed improved in the right maxillary sinus and chest x-rays were normal. In May 1991, the Veteran complained of nasal blockage with purulent discharge and hoarseness of two weeks' duration. June 1991 x-rays of the paranasal sinuses showed very thick membrane in the floor of the right antrum. The impression was low-grade or previous maxillary sinusitis. August 1991 x-rays of the paranasal sinuses revealed suspected sinusitis of the right maxillary sinus, with mucosal thickening in the right frontal sinus. On September 12, 1991, the Veteran underwent a bilateral maxillary sinusotomy in the middle meatus, a septoplasty and an anterior ethmoidectomy, more on the left than the right. Pathology study results included a differential diagnosis of granulomatous reaction of the sinuses of sarcoidosis and Wegener's granulomatosis. In January 1992, x-rays of the parasinuses revealed bilateral maxillary sinusitis with low grade ethmoid and sphenoid sinusitis. On October 31, 1992, the Veteran underwent surgical revision of the ethmoidectomy and of the nasal antral window. Since then, the Veteran has been treated for recurrent sinusitis, sinus infections, upper respiratory infections (URIs), bronchitis, bilateral otitis media, and sarcoidosis. On private hospital admission in July 2005, she was noted to have advanced sarcoidosis involving both her lungs and hilum which had been maintained on intermittent prednisone. The Veteran's also had chronic sinusitis secondary to her sarcoidosis involving her sinus lining. During the Travel Board hearing, the Veteran testified that she was seen in service for allergies, but she remembered that when they came out of the gas chamber during basic training it was really bad. She indicated that she did not have sinus problems until after she came out of the gas chamber during basic training. The Veteran also testified that she did not seek treatment for breathing problems until after service discharge. During service, it was not as much breathing problems as dealing with allergies because it was so hot in Alabama. The Veteran indicated that, in addition to being treated by VA, she received private treatment for her sinusitis and sarcoidosis. During an April 2010 VA nose, sinus, larynx and pharynx examination, the Veteran reported that she suffered from sinusitis for years and that she was not specifically diagnosed with sinusitis in service but she thought that she had been treated for sinus symptoms. Soon after service discharge, the Veteran stated that she was treated for sinus problems in Ohio but she has not been able to obtain medical records for these visits. For the last 20 to 25 years she has been seeing local doctors for her sinus symptoms. She indicated that she had approximately six flare-ups of sinusitis per year requiring antibiotic treatment. The Veteran was currently taking an antibiotic for her sinus condition. A February computed tomography (CT) scan of the paranasal sinuses revealed ethmoid and chronic maxillary sinusitis changes. No changes of the mastoiditis were noted. Following physical examination, the diagnoses included ethmomid and maxillary sinusitis. During an April 2010 VA respiratory diseases examination, the Veteran reported that sarcoidosis had its onset approximately 20 years ago; that she was diagnosed with sarcoidosis of the sinuses at the Wake Forest University Medical Center; and that she is followed locally by Dr. R. K. at the cancer center with yearly CT scans to monitor the disease. Her most troubling symptom is SOB with exertion. The Veteran provided a history of productive cough, wheezing and SOB on moderate exertion. Pulmonary examination was positive for wheezes. April 2010 VA chest x-ray findings were compatible with the clinical diagnosis of sarcoidosis and showed little, if any, significant interval change when compared to studies performed in November 2008. Pulmonary function tests (PFTs) were also performed. The diagnosis was sarcoidosis. Following a review of the claims file and physical examination of the Veteran, the VA examiner opined that neither the Veteran's sinusitis nor her sarcoidosis was caused by or a result of the Veteran's period of active service, including due to nuclear, biological and chemical agents used during basic training. In support, the VA examiner noted that she had reviewed the claims file at length and there was no evidence to support a sinus or respiratory condition while in service. The Veteran was in the military a total of eight months and her separation physical showed no sinus condition, sarcoidosis or symptoms of the latter disease. There was no evidence in the record that she was exposed to any type of nuclear, biological and chemical agents used during basic training. Her job while in the military was as a data analyst, which she herself admitted was primarily a clerical position. Review of the literature shows that the cause of sarcoidosis is not known, although some researchers believe that breathing in certain toxins could cause the immune system to overreact; the exact cause is not known. Here, the medical evidence shows that the Veteran did not have any chronic sinus/respiratory condition and was not diagnosed with sinusitis and/or sarcoidosis, until well beyond the first year after her separation from service. Instead she appeared to have suffered from allergies. The long evidentiary gap between the Veteran's active service and the earliest medical evidence of treatment for any sinus/respiratory condition weighs heavily against the Veteran's claim on a direct and presumptive basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). In this regard, the Board notes that, in May 1975, the Veteran filed her initial claim for service connection for a low back disorder. At a June 1975 VA examination, the Veteran did not report any sinus/respiratory problems and, on physical examination, the respiratory system, nose, sinuses, mouth and throat were clinically normal. She again filed to reopen that claim in December 1975. But she did not file a claim for a sinus/respiratory condition until July 2005, when she filed a claim for service connection for sarcoidosis of the sinuses. In addition, the record lacks any persuasive medical evidence establishing a possible relationship between the Veteran's current sinusitis and sarcoidosis and active service. The most probative evidence of record, the April 2010 VA examiner's opinion is against a link between the Veteran's current diagnosed sinusitis and sarcoidosis and military service. There is no other medical evidence that links either of these two current disorders to service nor has the Veteran claimed that there is. See 38 C.F.R. § 3.303(d). Instead private medical evidence has linked the Veteran's sinusitis to her sarcoidosis, a disease of unknown etiology. The Board has considered the Veteran's assertions that her diagnosed sinusitis and sarcoidosis are etiologically related to service; however, this is not credible and persuasive evidence. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (no probative weight in the absence of evidence that he or she has the expertise to render opinions about medical matters). While the Veteran is competent to attest to symptoms that occurred in service, and the symptoms that she has experienced since service, she is not competent to provide a medical opinion on etiology of her current diagnosed disorders. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Even the Veteran admitted during her testimony, that she did not have any respiratory problems during service and that her nasal problems were related to allergies. The Board finds that the Veteran's assertions of chronicity are not credible because, on VA examination in June 1975, there were no objective findings of any sinus/respiratory condition nor were there any complaints made or objective findings of any such disorder found during the June 1975 VA examination performed two months after service discharge. It was not until more than five years later that sinusitis was diagnosed and treated and another eleven years thereafter that sarcoidosis was diagnosed. Here, the VA examiner has opined that the Veteran's current sinusitis and sarcoidosis are not related to service after taking the Veteran's history, performing a physical examination and reviewing the claims file. In sum, the preponderance of evidence does not show the Veteran had a sinus/respiratory condition, to include sarcoidosis, until many years after her separation from service. Further, the most probative evidence of record is against linking the Veteran's current diagnosed disorders to service. 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER Entitlement to service connection for a sinus condition, to include sinusitis and sarcoidosis, is denied. REMAND Regrettably, the Board finds that additional development is warranted with regard to the remaining issue on appeal. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, that (1) the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this regard, the Board notes that the November 2008 VA spine examiner's opinion is based on a faulty premise and thus is inadequate. In finding no relationship between a low back disability and service, the VA spine examiner indicated that the claims file failed to show a particular injury while in service and that there was no chronicity of care noted. However, the Board notes that her service treatment records reveal that the Veteran sought treatment for low back pain with prolonged standing in October 1974. Clinical findings were normal for the spine on the Veteran's March 1974 enlistment and April 1975 separation examination reports. However, on the report of medical history accompanying the latter examination report, the Veteran checked "yes" for recurrent back pain and the examiner annotated negative history. Moreover, in a November 1975 statement, F. V., D.O. indicated that the Veteran had been under their care for a back injury during the month of October 1974 only and then after her discharge from service in April 1975. Even the June 1975 VA examiner gave a diagnosis of lumbosacral sprain/strain by history. A December 1984 private treatment record reflects mid-back pain due to menses. During an April 1987 private visit for complaints of mid-lower back pain without radiation, the Veteran gave a history of dull aching to sharp pain at times for the past 10 to 15 years. She added that she felt that it occurred initially after she injured herself on a trampoline while in school. But added, that it only hurt if she did certain types of exercise and that over this number of years she never thought much of it; however, over the past month the pain had gotten worse. In August 1997, the Veteran was treated by VA for right lower back muscle spasms. A February 1999 VA clinic progress note reflects an active medical problem of low back pain. Subsequent private medical records show treatment for low back pain associated with job-related injuries in March 2003 and November of 2004 Here, the VA has neither informed the Veteran of what is needed to establish service connection for a preexisting disability nor of how disability ratings and effective dates are assigned nor sought an opinion as to whether the Veteran's low back disability represents a permanent worsening of a preexisting disability beyond the natural progression during service or is due to an intervening event(s), to include job-related injuries. Thus, on remand, the Veteran should be provided such notice and an opinion should be sought to address whether any low back disability is related to service, represents a permanent worsening of a preexisting disorder during service, or is due to an intervening event(s). In this regard, the Board notes that lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (2007). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and her representative a corrective notice letter under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2011), that includes an explanation of the type of evidence needed to substantiate service connection for a disorder that preexisted service and of how disability ratings and effective dates are assigned, and what evidence VA will provide and what evidence the Veteran should provide. Request that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. If the Veteran responds, assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After completion of 1 above, to the extent possible, furnish the Veteran's claims file to an appropriate physician for review and to provide an opinion about the etiology of any current low back disability. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. Based upon a review of the record and consistent with sound medical principles, the physician should provide details about the onset of any diagnosed low back disability and should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability), that such disability(ies) (1) is the result of disease or injury incurred or aggravated during, or is otherwise related to, the Veteran's active duty; (2) was manifested to a compensable degree within one year of the Veteran's discharge from active duty on April 16, 1975, if arthritis is diagnosed; or (3) is due to an intervening event(s), to include job-related injuries. To the extent practicable, the examiner should render an additional opinion specifically addressing: (a) whether any low back disability clearly and unmistakably (absolutely certain) preexisted the Veteran's entrance into service; if so, (b) whether it increased in severity during service; and, if so, (c) whether such increase in severity represented the natural progression of the condition, or was beyond the natural progress of the condition (representing a permanent worsening of such disorder). If aggravation is found, the physician should attempt to quantify the degree of additional disability resulting from the aggravation. The physician's opinion should address the symptoms, findings, and diagnoses found in the Veteran's service treatment records, private and VA treatment records, the June 1975 and November 2008 VA examination reports, any lay statements in the claims file, to include the October 2009 Travel Board hearing testimony, and the November 2008 VA examiner's opinion. The physician should set forth all findings, along with complete rationale for the conclusions reached, in a printed report. If any requested opinion cannot be given, the physician should state the reason(s) why. For example, if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If the physician is unable to reach an opinion because there are insufficient facts or data within the claims file, the physician should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the Veteran's service-connection claim remaining on appeal, in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran 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 appeal 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs