Citation Nr: 1123308 Decision Date: 06/17/11 Archive Date: 06/28/11 DOCKET NO. 06-12 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for chronic sinus problems, to include as due to exposure to asbestos. 2. Entitlement to service connection for allergic rhinitis, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran served on active military duty from August 1962 to May 1968. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for chronic sinus problems. In March 2006 the Veteran testified at a hearing before RO personnel. A transcript of the hearing is associated with the claims folder. In May 2010 the Board remanded the claim for further development. The development has been completed, and the case is before the Board for final review. In light of the nature of the claim and the symptomatology described during the course of the claim, the Board has amended the issue as listed on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009), For the reasons explained below, the issue of service connection for allergic rhinitis is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT A current, chronic sinus disorder is not shown by competent and credible evidence. CONCLUSION OF LAW The criteria for establishing service connection for chronic sinus problems have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a May 2005 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A March 2006 letter advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA examination reports, private treatment records, an Internet article and August 1965 deck logs pertaining to the USS Firedrake, and statements and testimony from the Veteran and his representative. As discussed above, the Veteran was aware of the evidence needed to substantiate the claim, and he was notified and aware of the avenues through which he might obtain such evidence as well as the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has chronic sinus problems due to exposure to asbestos while serving on the USS Firedrake, particularly when the ship was moored at Hunters Point Dry Dock Naval Facility at San Francisco for a complete overhaul in 1965. Service treatment records were entirely silent for any complaints, findings, or treatment for sinus, nose, or allergy problems. Service personnel records confirmed that the Veteran served aboard the USS Firedrake. In a post-service private treatment record dated in April 2002 from R. K., M.D., the Veteran complained of increased signs and symptoms consistent with perennial nonallergic rhinitis, nasal obstruction, and minimal but intermittent purulence. He was started on a trial of Allegra and Flonase. A few days later, he complained of intranasal congestion and drainage, which was confirmed on examination. Dr. R. K. started him on Zyrtec-D and Nasacort AQ and remarked that if symptoms did not improve, examination under anesthesia and clearing of the canal would be appropriate. A May 2002 treatment note indicated that he had a good response to Allegra and Flonase. In a June 2005 VA Agent Orange examination report, the Veteran denied any breathing problems and described headaches as "rare." He identified an allergy to sulfur and reported working as a supply manager at a technical college. In a VA audiological examination report dated in December 2005, he described his post-service occupational history to include construction work from 1971 to 1974, construction work at a shipyard from 1972 to 1988, office work at a shipyard from 1988 to 1995, and receiving and supply work from 1995 to the present time. In March 2006 the Veteran testified before RO personnel that he worked as a storekeeper on the USS Firedrake during military service, but while the ship went in the yards in San Francisco, he stood fire watch and was exposed to cutting into insulation, burning torches, etc. He stated that he began to have sinus headaches, a stopped up nose, and difficulty breathing after about three years of service and continued to have the same symptoms after service to the present time. He reported that he did not seek any medical treatment until 1988, at which time Dr. R. K. performed nasal surgery. He indicated that those treatment records were no longer available. In a private treatment record from Roper St. Francis Healthcare dated in May 2007, the Veteran identified multiple chronic medical problems, including gastroesophageal reflux disease (GERD), but did not describe any chronic sinus problems or medications for chronic sinus problems. Instead, he complained of post nasal drainage and lost voice for one week with no relief taking Allegra. He also complained of almost-daily GERD symptoms and identified an allergy to sulfa. The impression included hoarseness, and the examiner indicated that GERD may be contributing to his symptoms. He was instructed to stop taking Allegra and start Prevacid. In an August 2007 treatment note, the Veteran denied any rhinorrhea or post nasal drainage. On examination, turbinates were clear. The assessment did not include any sinus disorder. The Board remanded the claim in May 2010 to verify whether the USS Firedrake was in a San Francisco Dry Dock Facility in 1965, to ask the Veteran to provide a list of his post-service occupations and general duties, and to obtain a VA examination and medical opinion. A review of the evidence shows that the remand directives have been completed. In correspondence dated in August 2010, the Veteran clarified that the USS Firedrake was at the Triple A Machine Shop in San Francisco in 1965 and provided an excerpt from his 1965-1966 cruise book describing the ship's location there to add a helicopter landing platform. An October 2010 response from the National Archives indicated that a review of the deck logs from January 1 to December 31, 1965 showed that the USS Firedrake spent the majority of the year at various naval facilities in the San Francisco Bay area and was moored at Hunter's Point Naval Shipyard August 16 to 18, 1965. Copies of deck logs from those dates were enclosed. In a VA nose, sinus, larynx, and pharynx examination report dated in December 2010, the Veteran reported that symptoms of sinus problems began in 1963 or 1964 and became progressively worse. He stated that he had sinus surgery in 1988 and described current NetiPot treatment, which does not help. He described current sinus symptoms to include purulent nasal discharge, headaches, and sinus pain and tenderness. He also described current rhinitis symptoms to include nasal congestion, excess nasal mucous, itchy nose, watery eyes, and sneezing. On examination, there was no evidence of sinus disease. A sinus x-ray study was also performed, and the impression was unremarkable radiographs of sinuses. The Veteran indicated that he retired from his work as a supply receiver in 2007 due to losing a kidney. The diagnosis was perennial allergic rhinitis and no clinical or objective findings to support the diagnosis of chronic sinusitis. The examiner described her review of the claims file; she reiterated that the Veteran does not suffer from a chronic sinus disorder, but does suffer from perennial allergies and GERD. Therefore, she opined that there is no diagnosed sinus disorder that would have arisen during service or is otherwise related to service, including alleged exposure to asbestos, paints, cleaners, or other chemicals therein. In a report of general information dated in April 2011, the Veteran stated that following service he barely worked at all; he was a wool processor at a fabric processing plant for about two months, but could not remember what he did there. He stated that he had nothing further to report regarding post-service employment or duties. Initially, the Board finds that the Veteran is competent to describe symptoms, such as nasal congestion and headaches, but he is not competent to opine on a medical diagnosis or etiology. See 38 C.F.R. § 3.159(a)(2) (2010) (defining "competent lay evidence"). As a lay person, he has not been shown to be capable of making medical conclusions, thus, his statements regarding diagnosis or causation of his claimed sinus disorder are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. Duenas v. Principi, 18 Vet. App. 512, 520 (2004). After reviewing the medical and lay evidence of record, the Board finds that service connection for a chronic sinus disorder is not warranted because there is no evidence of a current sinus disorder. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. Where, as here, the claims file is void of any competent medical evidence establishing that the Veteran currently has a sinus disorder, the disability for which service connection is sought is not established, and thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the claim for service connection for chronic sinus problems is denied because the first essential criterion for a grant of service connection, evidence of a current sinus disorder, has not been met. The Board acknowledges that in a written brief presentation dated in May 2011, the Veteran's representative suggested that the December 2010 VA examination was inadequate because it was performed by a nurse practitioner rather than a medical doctor, and he requested a new VA examination to be performed by a medical doctor with board certification in otorhinolaryngology. However, the nurse practitioner reviewed the claims file and obtained a subjective history from the Veteran, conducted a physical examination, and obtained radiologic findings. Her conclusion that the Veteran did not have a chronic sinus disorder was consistent with other private medical evidence of record, which does not reflect any diagnosed chronic sinus disorder. Therefore, the Board finds that the December 2010 VA examination was adequate for deciding the claim, and a new VA examination by an otorhinolaryngologist is not required or warranted. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) ("A nurse practitioner, having completed medical education and training, . . . [is] competent to provide diagnoses, statements, or opinions," and is "able to provide 'competent medical evidence' under [38 C.F.R.] § 3.159(a)(1)."). Finally, the Board finds that the Veteran is not a reliable historian regarding his claimed sinus disorder. For example, he described difficulty breathing and sinus headaches since service on VA examination in December 2010, but denied any such chronic symptoms during an Agent Orange examination in June 2005 and did not report any chronic sinus problem in May 2007 to private medical providers. Similarly, while he claims that he was exposed to asbestos during military service and the RO recognized his probable exposure, he was plainly less than forthcoming regarding an extensive post-service work history in construction from 1972 to 1988 at a shipyard. As a result, the Board finds that the Veteran's statements about experiencing sinus problems during and since military service as a result of claimed exposure to asbestos are not persuasive, especially because no private or VA medical evidence reflects that he has a current sinus disorder. The Board has considered the Veteran and his representative's contentions that the Veteran has a chronic sinus disorder that was caused by exposure to asbestos during military service, but finds that service connection for a sinus disorder must be denied because there is no competent and credible evidence of a current sinus disorder. Therefore, the claim for service connection for chronic sinus problems must be denied. Hickson, 12 Vet. App. at 253; Pond, 12 Vet. App. at 346. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for chronic sinus problems, to include as due to exposure to asbestos, is denied. REMAND Although the Veteran claimed service connection for sinusitis, his description of the symptoms can also possibly be attributed to allergic rhinitis, a condition for which there is a current diagnosis. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. The Board notes that the VA examiner did not provide an opinion as to whether the Veteran's allergic rhinitis was possibly related to service, to include his claimed exposures to asbestos, paints, cleaners, and other chemicals therein. Accordingly, the claims file should be returned to the 2010 VA examiner to obtain such opinion. In addition, although appropriate VCAA notice was provided regarding the claim for sinusitis, for clarity's sake the Veteran should furnished a VCAA notice letter regarding a claim for allergic rhinitis. Accordingly, the claim is REMANDED for the following: 1. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for allergic rhinitis since service. After securing the necessary release, the RO/AMC should request any records which are not duplicates of those already contained in the claims file. 2. Send the Veteran a VCAA notice letter regarding the claim for service connection for allergic rhinitis. 3. After the above has been completed to the extent possible, return the claim folder to the examiner who conducted the December 2010 VA sinus examination, if available. Following review of the claims file, the examiner should provide an opinion as to whether the diagnosed allergic rhinitis arose during service or is otherwise related to military service to include the claimed exposure to asbestos, paints, cleaners, and other chemicals during service. Of note, the Veteran also had post service employment as a construction worker at a shipyard from 1972 to 1988. A rationale for the opinion expressed should be provided. If a new examination is deemed necessary to respond to the question, one should be scheduled. If the 2010 VA examiner is not available, the claims file review and opinion should be provided by another examiner of equal or greater qualifications. 4. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs