Citation Nr: 1316650 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 08-11 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for rhinitis. 3. Entitlement to service connection for chronic prostatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2009, the Veteran testified at a personal hearing before a Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In October 2009, the Board remanded the issues on appeal, along with a claim of service connection for a pulmonary disorder, for further development. The case was subsequently returned for further appellate review. In a September 2011 decision, the Board denied the claims of entitlement to service connection for a pulmonary disorder, sinusitis, and rhinitis, and remanded the claim of entitlement to service connection for chronic prostatitis for further development. The Veteran appealed the Board's September 2011 decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a joint motion for remand in May 2012, requesting that the Court vacate the Board's September 2011 decision to the extent that it denied service connection for sinusitis and rhinitis. In a May 2012 order, the Court granted the joint motion, vacating the Board's September 2011 decision with respect to the denials of service connection for sinusitis and rhinitis and remanding the case to the Board for compliance with directives that were specified by the joint motion for remand. The case has thus been returned to the Board for further consideration. The development that was requested in connection with the chronic prostatitis claim that had been remanded by the Board in September 2011. That issue has been returned to the Board for further appellate review. In October 2012, the Veteran was notified that the Veterans Law Judge who conducted the July 2009 hearing was no longer with the Board. He was offered an opportunity to testify at another hearing. 38 C.F.R. §§ 20.707, 20.717 (2012). Later that month, VA received a response from the Veteran stating that he did not wish to appear at another hearing. Therefore, the Board will proceed with adjudicating the Veteran's claims. The issues of entitlement to service connection for chronic prostatitis and rhinitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has sinusitis that had its onset in service or that is otherwise associated with service. CONCLUSION OF LAW Sinusitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes October 2007 and November 2009 evidentiary development letters in which the RO advised the appellant of the evidence needed to substantiate his service connection claim. These letters advised the Veteran of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. These letters and a December 2009 letter further advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board notes that the November 2009 and December 2009 notice letters were not issued prior to the initial adjudication of the Veteran's claim in February 2008. The Veteran's claim, however, was readjudicated following the issuance of this notice in an October 2010 supplemental statement of the case. Thus, any deficiencies in the timeliness of these notice letters would not be prejudicial. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records, VA medical records, and private medical records. The Veteran also underwent a VA examination in connection with his claim in January 2010. The Board finds that the resulting VA medical opinion is adequate for the purpose of determining the claim decided herein. The examination report reflects review of the claims file. During the examination, the examiner elicited from the Veteran his history of complaints and symptoms and provided clinical findings detailing the examination results. The examiner also provided a diagnosis and etiology opinion and explained the reasons and bases for this opinion. For these reasons, the Board concludes that the January 2010 VA examination report in this case provides an adequate basis for a decision on the Veteran's claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to service connection for sinusitis, which he essentially contends first manifested during service. This claim was previously denied in the September 2011 Board decision and was the subject of the May 2012 joint motion for remand. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In the case at hand, the claim being decided is not listed as a chronic disability under 38 C.F.R. § 3.309(a). Therefore, the option of establishing service connection through continuity of symptomatology since service is not available in this case. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The joint motion for remand directs that "[r]emand is required because the Board failed to consider Appellant's lay statements as evidence of continuity of symptomatology [since service]." The joint motion also directs the Board to explain why it found the January 2010 VA examiner's report probative, noting that "[t]he Board recited the VA examiner's opinion but did not explain why it found the opinion and rationale probative except to state that there was no contrary medical opinion of record." It further directs the Board to consider that "[s]ervice connection may be established when a disability 'was incurred coincident with service' or when its 'inception' was during service. 38 C.F.R. § 3.303(a). Thus, there is no requirement that an incident in service caused the disability." As discussed in the September 2011 Board decision, the Veteran's service treatment records reflect that he was treated for sinusitis on several occasions throughout the 1970s and 1980s while in service. In June 1973, he was seen for sneezing and nasal congestion, and the impression was allergic bronchitis and sinusitis. He was again treated for severe sinus congestion in July 1974. In November 1975, he was assessed as having multiple allergies, sinusitis, and deviated septum. In June 1983, he complained of sinus congestion and was assessed with allergic rhinitis and sinusitis. An undated patient profile notes that he was treated for sinusitis in August 1986. However, a September 1986 sinus series revealed clear sinuses, with normal surrounding bones. In March 1987, he complained of sinus problems with hay fever and nasal congestion, and the assessment was allergic rhinitis and sinus congestion. His separation examination in September 1989 noted normal sinuses, although the Veteran indicated on his Report of Medical History that he had had sinusitis since 1980. In terms of post-service sinusitis, a VA examination from June 1990, approximately three months following his separation from service, notes no complaints of sinusitis or sinus-related problems. The earliest post-service medical evidence of sinusitis is dated in September 1997. The Veteran underwent a VA examination in January 2010. The resulting examination report notes that the Veteran reported that he began having sinus infections in 1980. He reported that these infections now occur two or three times per year, lasting approximately seven to fourteen days and resolving with antibiotic treatment. His course since onset had been stable, and he was not receiving treatment at the time of the examination. The examiner noted that the sinusitis diagnosis was made by clinical findings in addition to x-rays. There was no history of incapacitating episodes. The sinusitis was accompanied by headaches and sinus pain. There were no current sinus symptoms. There was no evidence of sinus disease on examination. Based on review of the claims file and interview and examination of the Veteran, the VA examiner diagnosed recurrent acute sinusitis. He opined that the Veteran's sinusitis is not caused by or a result of his military service. As a rationale, the examiner opined that the Veteran's recurrent acute sinusitis is the result of his sinonasal anatomy and stated that "[n]othing that happened during his time in service had an impact on this." The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In the case at hand, the Board finds that the January 2010 VA examination report is highly probative to the question of whether the Veteran has current a sinusitis disability that originated during or is otherwise etiologically linked to his military service. The VA examiner who conducted this examination possesses the necessary education, training, and medical expertise to provide the requested opinion. See Cox v. Nicholson, 20 Vet. App. 563, 568 - 570 (2007). This opinion is based in part on the examiner's personal examination and interview of the Veteran. The examination report contains detailed descriptions of the findings on examination and of the Veteran's pertinent medical history. The report also reflects that the examiner reviewed the Veteran's claims folder, which contains his service treatment records and post-service medical evidence. The VA examination report provides a clear diagnosis and persuasive rationale for the etiology opinion, i.e., that the Veteran's sinusitis is the result of his sinonasal anatomy. For these reasons, the Board finds that the January 2010 VA examination report is highly probative to the case at hand. No competent medical professional has diagnosed chronic, as opposed to acute or recurrent, sinusitis. The Board notes that the only contrary opinion of record comes from the Veteran himself, who essentially believes that he has suffered from bouts of chronic sinusitis since service. The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A layperson may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In the case at hand, however, the Veteran, as a layperson, is not competent to diagnose his current sinusitis as chronic rather than acute and recurrent, especially considering the Veteran's own reports that his sinusitis symptomatology only appears two or three times per year, each lasting one to two weeks. The Veteran has not reported continuous sinusitis and, in any event, in light of Walker, the Veteran cannot establish service connection for sinusitis through continuity of symptomatology alone. Based on above, the Board finds that entitlement to service connection for sinusitis is not warranted, as a preponderance of the competent and probative evidence of record reflects that the Veteran's sinusitis is acute and recurrent, meaning that individual bouts of sinusitis resolve without developing into a chronic disability. While the Veteran has received a lot of treatment for sinusitis, no actual chronic sinusitis disability has been diagnosed, either in service or following separation therefrom. A preponderance of the evidence of record demonstrates that the bouts of sinusitis that the Veteran currently experiences are not related to his in-service sinusitis episodes. In summary, the Board finds that a preponderance of the evidence is against finding a link between current sinusitis and the Veteran's military service. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for sinusitis is not warranted. ORDER Entitlement to service connection for sinusitis is denied. REMAND The Veteran has also claimed entitlement to service connection for chronic prostatitis and rhinitis. Before either of these claims may be adjudicated, remand for further development is necessary. The Veteran believes that his chronic prostatitis is related to symptomatology that he experienced during his military service. Among his contentions, the Veteran has asserted a link between his chronic prostatitis and in-service pyelonephritis, while in-service urinary tract infections have also been cited as possible causes of this disability. The Veteran underwent a VA examination in connection with this claim in February 2010. In January 2012, a VA opinion was obtained to address deficiencies in the February 2010 opinion. Unfortunately, the January 2012 opinion did not resolve all of the concerns that were raised by the February 2010 opinion. The February 2010 VA examiner opined that the Veteran's recurrent prostatitis is less likely as not caused by or a result of the acute pyelonephritis for which he was treated during service. He noted that the Veteran's prostate was small and non-tender at the time of the 1989 e. coli pyelonephritis infection in service, and follow-up with urology indicated no evidence of bladder outlet obstruction. Since that time, the Veteran has reported a history of recurrent episodes of acute bacterial prostatitis, characterized by a very tender prostate, transient elevation of his prostate-specific antigen (PSA) levels, and positive urine cultures. Those episodes were noted to most likely be related to his pyelonephritis. The February 2010 VA examiner also indicated that the underlying propensity for infection of the urinary tract caused both the Veteran's in-service pyelonephritis and his more recent episodes of prostatitis, but he was uncertain of the etiology of the Veteran's recurrent urinary tract infections. He stated that a computed tomography (CT) scan and, potentially, urodynamic evaluation were required in order to determine such etiology. However, the record does not indicate that these tests were actually performed at that time. The Board found that a remand was necessary in order to determine whether the Veteran's prostatitis is related to his service, including to his in-service pyelonephritis and urinary tract infections. VA obtained a new etiology opinion in January 2012. Based on his review of the claims file, the VA examiner found that the Veteran's prostatitis was less likely than not incurred in or caused by service, to include the pyelonephritis or any urinary tract infections. In explaining the rationale for this opinion, the examiner noted that an October 2, 1989, service treatment record reflects that the Veteran was seen for frequent urination and chills without fevers. Urinalysis showed too numerous to count white blood cells and 4+ bacteria. He had a white blood cell count of 16 and was diagnosed with pyelonephritis and hospitalized for treatment. His prostate examination at that time was written as "soft, nontender." An admission note from October 12, 1989, states the patient's prostate was "moderately enlarged but not tender to palpation." The Veteran was treated with Cipro and recovered well. A cystoscopy performed during an October 17, 1989, urologic evaluation showed no obstruction, and intravenous pyelogram showed normal upper urinary tracts. The Veteran was diagnosed with functional incomplete emptying and was instructed to double void and return on an as-needed basis. He has since had several episodes of prostatitis which have been treated with antibiotics and proscar. The examiner opined that the Veteran's prostatitis, in-service bout of pyelonephritis, and any other urinary tract infections during his service were less than likely than not related to his military service. In explaining this opinion, the examiner noted that the nature of the Veteran's duties as a desk worker in service would not have resulted in pyelonephritis or prostatitis. He noted that the Veteran had freedom to move about the base and sustained no injury during his service and was in sanitary conditions. His episode of prostatitis and acute pyelonephritis were not related to these military activities, and there is no evidence in the medical literature suggesting that the type of work the [Veteran] performed increases the risk or causes pyelonephritis or prostatitis. The examiner also opined that the Veteran's current prostatitis is less than likely as not related to his episode of pyelonephritis, as there is no evidence in the medical literature to suggest that an episode of pyelonephritis causes or worsens prostatitis. He further opined that "[t]he cause of the [Veteran's] prostatitis is likely multifactorial but not caused by his pyelonephritis or his time in the service." A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the examiner's last assertion, describing the cause of Veteran's prostatitis as "likely multifactorial but not caused by his pyelonephritis or his time in the service," does not sufficiently address the concerns that were raised in the September 2011 Board remand. Specifically, the VA examiner appears to have interpreted the phrase "his military service" as being limited to the Veteran's actual in-service duties. Thus, it does not appear that the examiner's response to the question of "whether it is at least as likely as not the Veteran's prostatitis is due to his military service" contemplates the likelihood that the Veteran's prostatitis resulted from injuries or diseases that occurred at the time of his service but were not actually related to his in-service duties themselves. Because of this misunderstanding, the Board requires a clarifying opinion on the question of "whether it is at least as likely as not the Veteran's prostatitis is due to his military service." The Veteran's claim of entitlement to service connection for rhinitis must also be remanded in order to address a deficiency in the January 2010 VA examination report that is noted by the May 2012 joint motion. The Veteran's nose and sinuses were found to be clinically normal at the time of his September 1969 enlistment examination, and he is thus presumed to have been sound at the time of his entrance into service. The records also reflect, however, that he was treated for chronic rhinitis on several occasions during service. The Board therefore sought an opinion with respect to whether the Veteran's in-service chronic rhinitis (1) clearly and unmistakably existed prior to service and (2) was clearly and unmistakably not aggravated by service. Despite the Board's October 2009 remand instructions, which were phrased in a manner that was consistent with the presumption of soundness analysis, the January 2010 VA examination report applies the incorrect standard, merely determining that the Veteran's rhinitis "is less likely as not (less than 50/50 probability) caused by or a result of pre-existing hay fever." [Capitalization in quotation omitted.] The May 2012 joint motion noted this error and directed the Board to explain how the VA examiner's assertion that "[i]t is unlikely that a permanent increase in his allergies were a result of his time in Thailand but I don't have pre and post Thailand allergy tests to compare" satisfies the "undebatable" standard that is set out in Cotant v. Principi, 17 Vet. App. 116, 131 (2003). Given these concerns, the Board finds it necessary to remand this claim for a new opinion. Accordingly, the case is REMANDED for the following action: 1. The claims file should be sent to the examiner who furnished the January 2012 medical opinion for clarification of the question asked below. If this examiner is no longer available, the record should be sent to another qualified medical expert. If the examiner finds that a new VA examination is necessary in order to answer the following question, the Veteran should be scheduled for a new VA examination. If a new examination is necessary, the claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's chronic prostatitis was incurred during or as a result of the Veteran's military service, to include as a result of any disease or injury that occurred during service, including his in-service bout of pyelonephritis or any in-service urinary tract infections. In answering this question, the examiner is advised that service connection may be established when a disability had its inception during service, and that there is no requirement that the Veteran's military duties actually caused the disability at issue. Thus, nexus may be established if the examiner finds it at least as likely as not that the Veteran's chronic prostatitis first manifested during service, even if no causal relationship may be found between the Veteran's chronic prostatitis and his military duties. Any opinion expressed must be accompanied by a complete rationale. 2. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his current rhinitis. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should address the following: a) State whether there is clear and unmistakable evidence that the Veteran's current rhinitis existed prior to service. If clear and unmistakable evidence is found concerning this question, the examiner should specifically identify the evidence. b) State whether there is clear and unmistakable evidence that such disability was NOT aggravated by service. If clear and unmistakable evidence is found concerning this question, the examiner should specifically identify the evidence. c) If (a) and (b) are addressed in the affirmative, state whether the pre-existing rhinitis underwent an increase in severity. If an increase in disability is found, state whether there is clear and unmistakable evidence that such increase was due to the natural progress of the condition. d) If (a) and (b) are addressed in the negative, please state whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's rhinitis was incurred in or related to service, including any incident of service. A discussion of the complete rationale for all opinions expressed, including reference to the pertinent service treatment records and pre and post service treatment records, should be included in the examination report. 3. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative 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 appellant need take no action unless otherwise notified. The appellant 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 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs