Citation Nr: 1308097 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 03-05 525A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as sinusitis and allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July to August 1976 and from September 1977 to June 1986. In January 1996, the Department of Veterans Affairs (VA) Regional Office (RO) denied his claim of entitlement to service connection for allergic rhinitis, claimed as sinusitis. He was notified of that decision, as well as of his procedural and appellate rights; however, a notice of disagreement (NOD) was not timely received in response to initiate an appeal of that decision, so it became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (1995). He later filed a petition to reopen this claim. In December 2006 and November 2008, after he had appealed the continued denial of this claim, the Board of Veterans' Appeals (Board/BVA) remanded the claim to the RO via the Appeals Management Center (AMC) for further development and consideration. In October 2010, upon completion of that requested development, the Board reopened the claim because there was the required new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). But rather than immediately readjudicating the claim on its underlying merits, the Board instead then remanded the claim for a VA compensation examination for a medical nexus opinion concerning the nature and etiology of this disorder - including especially insofar as the likelihood it had incepted during the Veteran's service or was otherwise related or attributable to his service. After examining the Veteran, the examiner concluded that based on the Veteran's own history and allergy services documentation, his recurrent/chronic rhinitis had had its clinical onset prior to his military service and that it was less likely than not related to his active duty. However, the report of that examination did not address the question of whether his allergic rhinitis/sinusitis had been aggravated by his military service - that is, beyond its natural progression - if, as indicated, it had preexisted his service. Therefore, an addendum opinion was needed to assist in making this additional determination. The Board therefore again remanded this claim in March 2012. In November 2012, following the requested development, the AMC confirmed and continued the denial of this claim and since has returned the file to the Board for further appellate consideration of this claim. Earlier, in September 2006, during the course of this appeal, the Veteran had testified at a hearing at the RO before a Veterans Law Judge of the Board who since has retired. The law requires that the Veterans Law Judge who conducts a hearing participate in making the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Therefore, the AMC informed the Veteran of his right to have another hearing before a different Veterans Law Judge who would participate in the decision. However, in October 2008 the Veteran indicated that he did not want another hearing. The Board also sees that, in December 2011, the Veteran contended that service connection was warranted additionally for obstructive sleep apnea. He stated that it is a type of respiratory disorder and therefore similar to sinusitis and allergic rhinitis. As such, he requested that his claim for sleep apnea be adjudicated in conjunction with the claim for the sinusitis and allergic rhinitis already on appeal. But while sleep apnea is indeed a type of respiratory disorder, it has its own set of manifestations that distinguish it from allergic rhinitis and sinusitis. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, 6522, and 6847. Unlike the claim for allergic rhinitis and sinusitis, the claim for sleep apnea has not been certified to the Board as on appeal nor has it otherwise been developed for appellate review. Therefore, the Board has no jurisdiction over this claim so is referring it to the RO for appropriate development and consideration. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101 (2012). See also Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO in the first instance). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for service connection for a mental disability includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). This appeal is not also for service connection for sleep apnea, however, since the facts and procedural history of this case are distinguishable from those in Clemons. Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection. The Clemons Court found that, where a Veteran's claim identifies posttraumatic stress disorder (PTSD) without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In this particular case at hand, however, the sleep apnea now also being claimed does not necessarily share the same symptoms as sinusitis and allergic rhinitis, even though, technically speaking, all are types of respiratory disorders. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service-connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The Veterans Court(CAVC) has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively - after there has been a finding of fact based upon competent medical evidence. See Clemons, 23 Vet. App. at 8. In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. In determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries or whether the evidence substantiates an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199 (2009). New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467 (2006). The Board therefore finds that it does not have jurisdiction over the issue of entitlement to service connection for obstructive sleep apnea, only instead to the extent the Veteran is also claiming entitlement to service connection for the sinusitis and allergic rhinitis mentioned. FINDINGS OF FACT 1. There is no clear and unmistakable evidence the Veteran's respiratory disorder, and in particular his sinusitis and/or allergic rhinitis, preexisted his service. 2. His respiratory disorder, claimed as sinusitis and/or allergic rhinitis, instead first manifested during his service. CONCLUSION OF LAW A respiratory disorder, claimed as sinusitis and allergic rhinitis, was incurred in service. 38 U.S.C.A. §§ 1111, 1131, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist the Veteran with this Claim Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duties to notify and assist him in the development of this claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Since, however, his claim is being granted in full, there is no need to discuss whether there has been compliance with these duty to notify and assist obligations because even if, for the sake of argument, there has not been, this would still be inconsequential and, thus, at most amount to nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102 (2012). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (wherein the U. S. Supreme Court made clear that notice and assistance errors are not presumptively predjudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error but, above and beyond this, showing how it is unduly prejudicial, meaning outcome determinative of the claim). There is no such possibility in this instance. Accordingly, the Board will proceed to the merits of the appeal. The Applicable Laws, Regulations and Precedent Cases Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Generally, the evidence must show (1) the existence of a current disability; (2) the existence of a relevant disease or injury in service, and; (3) a relationship or nexus between the current disability and the injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Every Veteran is taken to be in sound condition when examined, accepted, and enrolled for service, except for defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). If the condition now claimed was not noted when the Veteran entered service, then VA bears the burden of proof of rebutting this presumption of soundness when entering service. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). And this is a two-pronged test, requiring clear and unmistakable evidence both that the condition was preexisting and that it was not aggravated during or by the Veteran's service or, if it was, that the worsening was not beyond the condition's natural progression. VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). For there to be clear and unmistakable evidence of a condition's preexistence, there must be obvious or manifest evidence of this. Clear and unmistakable evidence is a more formidable evidentiary burden of proof than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Signed statements of Veterans relating to the origin or incurrence of any disease or injury made in service, if against his or her own interest, are of no force and effect if other data do not establish the fact. 38 C.F.R. § 3.304(b)(3). Moreover, a recorded history provided by a lay witness does not constitute competent medical evidence of a chronic preservice condition, even though the appellant's account of his preservice illnesses was recorded by medical examiners. Cf. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service when there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). With respect to claims based on aggravation during active duty, a presumption of aggravation is triggered when the evidence establishes the presence of a preexisting condition which worsens during service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the presumption arises, then the burden shifts to the Government to show a lack of aggravation by establishing that the in-service "'increase in disability is due to the natural progress of the disease.'" Id. The foregoing law and regulations notwithstanding, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is competent to give testimony about what he experienced during and after his service, indeed, as well as before. For example, he is competent to report having nasal congestion and itchy, watery eyes during and since service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. Indeed, competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Andréa v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. Andréa v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay observation. See 38 C.F.R. § 3.159(a)(1) versus (a)(2). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Colusa v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Solar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obvert v. Brown, 5 Vet. App. 30, 33 (1993). The Factual Background The reports of the Veteran's February 1976 service entrance examination, his August 1976 service separation examination, and his April 1977 service entrance examination are unremarkable for any complaints or clinical findings of sinusitis or allergic rhinitis. Indeed, he responded "no" when asked whether he then had, or had ever had, ear, nose, or throat trouble, chronic or frequent colds, sinusitis, or hay fever. Moreover, an examination of his nose, sinuses, mouth, and throat was normal. Starting in early October 1977, so approximately 3 weeks after his entry onto active duty, he began being treated for complaints of a cold and sore throat. He continued to register such complaints throughout his service, and the primary diagnoses were upper respiratory infection and viral syndrome. In December 1977 he complained of 3-to-4-week history of sinus problems in service, as well as nasal congestion and a watery discharge. The diagnosis was allergic rhinitis. The following month, the diagnosis was allergic-like rhinitis, and in February 1979 it was noted that he had had rhinitis for two weeks. In September 1980, it was noted that he had a history of allergic rhinitis, and in March 1983 he reported a history of intermittent nasal symptoms since the age of 12. On the latter occasion, the diagnosis was upper respiratory infection versus seasonal allergy. In March 1979, the Veteran reported a one-day history of an itchy rash extending from his neck to his ankles. Although he denied any known allergies, the diagnosis was allergic urticaria. During a November 1985 examination, he responded "yes" when asked whether he then had, or had ever had, ear, nose, or throat trouble, sinusitis, or hay fever. However, an examination of his nose, sinuses, mouth, and throat was normal. In January 1986, prior to his separation from service, he was treated for sinusitis. X-rays revealed no evidence of decreased pneumotization in the paranasal sinuses. In May 1986, he complained of nasal congestion, and the diagnosis was upper respiratory infection versus sinusitis. In June 1986, he declined further examination prior to his separation from service. During an October 1986 VA general medical examination, he reported a history of ear infections that had led to sinus headaches and sinusitis. On examination, his head, face, and neck were normal, except for anterior cervical nodes that were mobile and nontender. His nose, sinuses, mouth, and throat were also found to be normal. During an October 1986 VA ear, nose, and throat examination, he complained of sinus congestion. He stated that his most recent episode had occurred the previous winter and that following self-medication, it had resolved. The examiner stated that the Veteran's history suggested the presence of sinusitis. X-rays revealed prominent paranasal turbinates. However, there was no evidence of significant inflammatory changes in the paranasal sinuses. In March 1995, the Veteran's mother reported that he had had sinusitis for years and that it had started in service. His ex-wife, a certified medical assistant, noted that she had been married to him from 1979 to 1989 and that he had had sinus problems since they met. VA outpatient treatment records, dated in May and July 1995 show the Veteran continued to receive treatment for allergic rhinitis or possible allergic rhinitis. Therefore, in November 1995, he underwent a second VA ear, nose, and throat examination to determine the nature and etiology of the disorder. He reported a history of congestion and post-nasal drip with a seasonal variance, that is, his symptoms increased as the pollen count increased. On examination, his left middle turbinate was slightly increased in size. Otherwise, the physical examination was normal with no purulence or polyps. X-rays of his sinuses revealed no significant change since those performed in October 1986. The diagnosis was allergic rhinitis with an increased middle turbinate. From December 1995 through October 2005, he continued to receive ongoing VA treatment for respiratory-related problems, frequently diagnosed as allergic rhinitis. During a May 2002 consultation with the VA Allergy and Immunology Service, he reported that his symptoms included itching eyes, sneezing, nasal congestion and discharge, worse in the spring, and post-nasal drip. It was also noted that his symptoms were worse around cats, dust, smoke, and freshly cut grass. Following the examination, the diagnoses were no allergic rhinitis and purities. In March 2005, X-rays of his chest and sinuses were negative. In January 2011, he was examined by VA to determine the nature and etiology of any respiratory disorder found to be present. The problems were allergic rhinitis and sinusitis that had reportedly had their onset in the early 1970s. He stated that he began noticing sinus problems when he was 12 or 13 years old, so before his service. He indicated they were manifested by nasal congestion, sneezing, and itchy eyes and that pollen seemed to trigger the symptoms. He stated that when he was 14 and living in Indiana, he developed hay fever, primarily in the spring. He noted that he had experienced intermittent problems ever since and that they seemed worse when the trees in his yard were trimmed. He was reportedly told that a skin test 20 years earlier had revealed his allergy to cats, dust, mice, and mold. However, a blood test indicated that he was not allergic to any specific factors. On examination, there were no signs of nasal obstruction or sinus disease. The diagnosis was recurrent rhinitis. Allergic rhinitis and sinusitis were listed as problems associated with the diagnosis. Following the examination, the VA examiner opined that the Veteran's recurrent/chronic rhinitis had occurred and had had its clinical onset prior to service. Therefore, this examiner determined it was less likely than not related to the Veteran's active duty service. In so opining, the VA examiner cited the history reported by the Veteran as well as the allergy service documentations. In a March 2012 addendum, the VA examiner further opined that the Veteran's allergies and/or sinus problems had not been permanently aggravated by his service. In this regard, the VA examiner stated that the Veteran's allergies and/or sinus problems clearly had had their onset prior to his service. This examiner further stated that such factor meant that his immune system already had been sensitized to certain environmental or microscopic particles before he joined the military. The VA examiner noted that, once the Veteran had been exposed to those particles, his immune system had reacted and similar rhinitis symptoms had recurred. The examiner explained that allergic rhinitis or sinusitis was considered a chronic medical disability and that the symptoms usually waxed and waned depending on the season, rain, or wind. Therefore, the VA examiner concluded the Veteran's allergies and/or sinus problems had not been aggravated by his service. Analysis A review of the foregoing evidence shows he Veteran's service entrance and separation examinations from his first period of active duty service and his service entrance examination prior to his second period of active duty service were unremarkable for any complaints or clinical findings of rhinitis or sinusitis. Thus, with respect to his now claimed respiratory disorders, it must be presumed he was in sound physical health when entering service. In Quirin v. Shinseki, 22 Vet. App. 390 (2009), the Court held that the only prerequisite to applying the presumption of soundness when entering service is that the military entrance or induction examination have been free and clear of the now claimed disability. Such disorder, instead, was first manifested in service in December 1977 when he reported a 3-to-4-week history of nasal congestion and watery eyes. Given that history, that would have been approximately 7 to 8 weeks after his entry into his second period of active duty service. During service in March 1983, during a May 2002 consultation with the VA Allergy and Immunology Service, and during his January 2011 VA examination, the Veteran stated that his symptoms, such as sneezing; itchy, watery eyes, and nasal congestion had been present prior to service, as early as age 11 or 12. While he is competent to report his symptoms, the report of his history, by itself, is insufficient to constitute the required clear and unmistakable evidence to rebut the presumption of soundness when entering service. Indeed, the condition was not diagnosed until he was already in service. Moreover, the evidence during and since his service, including his service treatment records and the reports of VA ear, nose, and throat examinations in October 1986 and November 1995, are conspicuously silent for a history of a pre-service onset. In addition, competent statements from his ex-wife and mother proclaim rather emphatically that his respiratory problems started during his service, not before. Although the most recent VA examiner concluded the Veteran's disorder had started prior to his entry onto active duty, the primary basis for this conclusion is the history reported by the Veteran, which, as mentioned, is insufficient alone to establish preexisting disability. There simply are no pre-service medical records or consistent history or other evidence during or since service supporting the conclusion of preexisting disability. As such, the VA examiner's opinion does not meet the burden of clear and unmistakable evidence that sinusitis and/or allergic rhinitis necessarily existed when the Veteran entered service in September 1977. In sum, with respect to the issue of entitlement to service connection for a respiratory disorder, VA has not satisfied the criteria for rebutting the presumption that the Veteran was in sound physical health as concerning these now claimed conditions when he entered service. So resolution of his claim ultimately turns, instead, on whether his respiratory disorder incepted during his service. And the evidence shows that it did. In fact, the evidence shows that his allergic rhinitis first manifested in service in December 1977 and has been a recurring problem ever since. Therefore, he meets the criteria for service connection on a direct-incurrence basis. At the very least, there is an approximate balance of evidence both for and against the claim that his respiratory disability originated in service. And in this circumstance, he is given the benefit of the doubt and his claim granted. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Accordingly, service connection for a respiratory disorder, claimed as sinusitis and allergic rhinitis, is warranted. ORDER The claim of entitlement to service connection for a respiratory disorder, including especially sinusitis and allergic rhinitis, is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs