Citation Nr: 1315570 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 07-10 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a chronic sinus disorder, to include sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to November 1991, with service in the Southwest Asia Theater of Operations from January to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a decision of March 2012, the Board granted entitlement to service connection for posttraumatic stress disorder. Accordingly, that issue, which was formerly on appeal, is no longer before the Board. At that same time, the Board remanded for additional development the issue of entitlement to service connection for a chronic sinus disorder. At that time, the Board noted that the issue of entitlement to service connection for a sinus disorder was previously considered and denied in rating decisions of March 2003 and May 2003. The Veteran did not appeal those decisions, and, as such, new and material evidence would generally be required to reopen the claim. However, a review of the record reflected that additional service personnel records had been received from the National Personnel Records Center in March 2006, and that the Veteran had received a favorable decision from the Army Board for Correction of Military Records in April 2007. In that regard, applicable regulations provide that, at any time after VA issues a decision on a claim, 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 would reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). See 38 C.F.R. § 3.156(c) (2012). The regulation further identifies service records related to a claimed inservice event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i) (2012). Accordingly, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received following a prior final denial. Regarding a different matter, the Board, in a November 2012 letter, advised the Veteran that the Veterans Law Judge before whom he had testified in an October 2009 hearing had been designated by the Secretary of VA to serve as Acting Chairman of the Board, pursuant to 5 U.S.C. § 3345 (West 2002). In that regard, under 38 U.S.C.A. § 7102(b) (West 2002), proceedings before the Board may not be assigned to the Chairman as an individual member. Accordingly, the Board advised the appellant that he had a right to participate in another Board hearing should he so desire. Later that month, however, the Veteran responded that he did not wish to appear at an additional hearing, and requested that the Board proceed with consideration of his appeal based on the evidence of record, to include the transcript of the October 2009 Board hearing. Finally, this case was again before the Board in January 2013, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDING OF FACT A chronic sinus disorder, to include sinusitis, is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service, including exposure to toxic fumes. CONCLUSION OF LAW A chronic sinus disorder, to include sinusitis, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in August 2005 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran is obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording him appropriate VA examinations. As to the issue currently before the Board, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Finally, in reaching the following determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, and those of his spouse, offered during the course of a hearing before a Veterans Law Judge in October 2009, as well as both VA (including Virtual VA) and private treatment records and examination reports. 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 Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that 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). Service Connection The Veteran in this case seeks service connection for a chronic sinus disorder. In pertinent part, it is contended that the Veteran's current sinus disability is in some way the result of his exposure to toxic fumes from oil fires and/or "burn pits" during his service in the Southwest Asia Theater of Operations. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b) (2012). However, sinus disability is not an enumerated chronic disease and section 3.303(b) is not applicable. 38 C.F.R. § 3.303(a) does remain applicable. Finally, service connection for chronic, undiagnosed illness (or a medically unexplained chronic multisymptom illness such as fibromyalgia, chronic fatigue syndrome, or irritable bowel syndrome) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C.A. § 1117 (West 2002) and 38 C.F.R. § 3.317 (2012). Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2012). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b) (2012). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 C.F.R. § 5107(b) (West 2002). Under that provision, VA shall consider all information and lay and medical evidence of record in the case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, service treatment records fail to document the presence of a chronic sinus disorder, including sinusitis. In that regard, while at the time of a service entrance examination in January 1989, the Veteran gave a history of frequent or severe headaches, as well as hay fever, he denied any problems with sinusitis. A physical examination of the Veteran's sinuses conducted at that time was entirely within normal limits, and no pertinent diagnosis was noted. Significantly, available service treatment records show neither a diagnosis of, nor treatment for, chronic sinus pathology. Moreover, as of the time of a service separation examination in August 1991, the Veteran denied any history of sinusitis, and similarly denied any problems with frequent or severe headaches or hay fever. A physical examination of the Veteran's sinuses conducted at that time was entirely within normal limits, and no pertinent diagnosis was noted. The earliest clinical indication of the presence of potentially chronic sinus pathology is revealed by a private medical record dated in August 2001, approximately 10 years following the Veteran's discharge from service, at which time he gave a history of chronic sinusitis. Complaints at the time consisted of sinus pressure and nasal congestion. Physical examination of the Veteran's nose and sinuses showed the turbinates to be boggy and inflamed, with purulent discharge from both nostrils, and tenderness of both frontal and maxillary sinuses. The pertinent diagnosis noted was "acute" sinusitis. Significantly, during the period from November 2003 to April 2004, the Veteran received treatment for what was variously described as "acute" sinusitis, sinus congestion, and "ethmoid" sinusitis. However, on none of those occasions were the Veteran's sinus problems attributed to his period of active military service. At the time of a subsequent VA sinus examination in April 2012, it was noted that the Veteran's claims folder and medical records were available, and had been reviewed. Included in those records was a note written by a nurse practitioner in April 2008 showing a diagnosis of "acute sinusitis." However, computerized axial tomography of the Veteran's head obtained in December 2009 showed that the visualized paranasal sinuses and mastoid air cells were "clear." When questioned, the Veteran indicated that problems with his nose and sinuses began in the mid-nineties, when he had headaches, swelling around the eyes, fatigue, and sweating at night. According to the Veteran, while in Saudi Arabia, he was exposed to fumes from oil fires and burning munitions. However, at about the same time, the Veteran was reportedly "a heavy alcohol drinker," with the result that he attributed his symptoms of headache and sweating to his heavy drinking, and was unaware that his problems could be from his nose or sinuses. Noted at the time of examination was that the Veteran had experienced problems with maxillary, frontal, and ethmoid sinusitis. Moreover, the Veteran currently exhibited findings, signs, or symptoms attributable to chronic sinusitis. Among those signs and symptoms were episodes of sinusitis, as well as headaches, pain and tenderness of the affected sinuses, and purulent discharge or crusting. According to the examiner, the Veteran had a rather vague history of nose and sinus problems, which, the Veteran believed, began approximately 5 to 7 years ago. According to the Veteran, this would place the origin of those problems at a point in time about 14 years following his discharge from military service. Reportedly, the Veteran was exposed to toxic fumes during active military service, which exposure could have contributed to the rather mild but chronic symptoms of nasal congestion and headaches which he now experienced, and which were attributed, at least in part, to chronic sinusitis. Significantly, the Veteran underwent computerized axial tomography in 2009 which showed no evidence of sinus disease. However, he had been tested for allergies, and found to be allergic to trees and pollen. According to the Veteran, he took medication to control his symptoms of allergic rhinitis. However, according to the Veteran, he continued to smoke about eight cigarettes per day. In the opinion of the examiner, considering all factors, it appeared less likely rather than more likely that the Veteran's current problem with headaches and occasional sinusitis were the result of exposures which occurred while he was on active duty military service. The pertinent diagnoses noted were chronic sinusitis, allergic rhinitis, nonallergic rhinitis, deviated nasal septum, and frontal headaches in the maxillary area. In an addendum to the aforementioned VA examination dated in January 2013, the same VA examiner who had conducted the April 2012 examination once again indicated that he had reviewed the Veteran's claims folder, and was aware that the Veteran had been exposed to fumes in "burn pits" while on active military service. However, considering all factors, including negative sinus films and the time course of emergence of symptoms, the examiner was of the opinion that the Veteran's symptoms of nasal congestion which became manifest approximately 5 to 7 years ago were less likely than not (that is, less than 50/50 probability) caused by or the result of his exposure to toxic fumes during active military service. As noted above, in order to establish service connection for an undiagnosed illness manifested by sinus symptoms resulting from service in the Southwest Asia Theater of Operations, the law requires that the symptoms in question not be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii) (2012). However, in the case at hand, the record reflects that the Veteran's sinus symptomatology has been attributed to chronic sinusitis and/or allergic rhinitis. In addition, the Veteran has received treatment for what has been described as "acute" sinusitis, as well as sinus congestion and ethmoid sinusitis. Under the circumstances, and given that the Veteran's symptomatology has been attributed to a known clinical diagnosis or diagnoses, service connection pursuant to the provisions of 38 C.F.R. § 3.317 (2012) is not warranted. Nonetheless, because the Veteran's sinus-related complaints have been attributed to a known clinical diagnosis, the Board must also consider whether service connection may be established for the diagnosed disorder. As noted above, in order to establish service connection, there must be (1) evidence of a current disability; (2) evidence of inservice incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed inservice disease or injury and the current disability. In that regard, the Board finds the aforementioned opinion of a VA otolaryngologist highly probative, because that opinion was based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records and a full examination, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The VA examiner reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided a well-reasoned medical opinion, and alluded to the evidence which supported that opinion. See Hernandez-Toyens v. West, supra. Under the circumstances, the Board is of the opinion that the probative evidence of record establishes that the Veteran's sinusitis, or other sinus pathology, is not related to the Veteran's period of active military service, including exposure to toxic fumes from oil fires and/or "burn pits." In evaluating a Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed the origin of his sinus-related pathology to his period of active military service. However, as is clear from the above, that disability was first clinically documented many years following the Veteran's discharge from service. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against a claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, in the case at hand, there is no persuasive evidence suggesting a link between the Veteran's sinus pathology and his period of active military service. In fact, by the Veteran's own admission, his sinus problems first originated approximately 14 years following his discharge from military service. Under the circumstances, service connection for a chronic sinus disorder, including sinusitis, must be denied. The Board acknowledges the Veteran's statements, and those of his spouse, regarding the origin of his current sinus-related pathology. The Board accepts as credible the report that he was exposed to fumes during service. See 38 U.S.C.A. § 1154. However, the Board rejects the assertions to the extent that they seek to etiologically relate the Veteran's current sinus pathology to inservice exposure to toxic fumes. The Veteran's statements and history, as well as the statements of his spouse, when weighed against the objective evidence of record, are not probative as to etiology. Moreover, the Veteran and his spouse, as laypersons, are not competent to create the requisite causal nexus for the disability at issue in this case. Here, there was no report of an in-service onset. Furthermore, there are no other Jandreau evidentiary exceptions in this case. In essence, there is a report of a post service onset with a belief that the disability is due to an in-service event(s). In this particular case, there needs to be evidence which requires medical knowledge and be provided by someone qualified by knowledge, skill, experience, training, or education, none of which the Veteran or his wife possess. See Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007). The preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER Service connection for a chronic sinus disorder, to include sinusitis, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs