Citation Nr: 1316830 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-30 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a chronic disability manifested by throat pain. 2. Entitlement to service connection for a chronic disability manifested by chronic and frequent colds. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for a chronic disability manifested by throat pain. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to June 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in August and October 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the Veteran's claims. In January 2012, the Veteran revoked a power of attorney in favor of Disabled American Veterans. This case was previously before the Board in February 2012, at which time the case was remanded for further development to include a VA medical examination which addressed the Veteran's claims. Such an examination was accomplished in March 2012, with a supplemental opinion being promulgated in February 2013. All other development directed by the Board's remand appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran's current complaints of chronic and frequent colds, and throat pain, have been attributed to allergic rhinitis, sinusitis (resolved), and status-post tonsillectomy. 2. The Veteran underwent a tonsillectomy at a VA medical facility in August 1968 for what was diagnosed as hypertrophic tonsils. 3. The competent and credible evidence of record reflects that the hypertrophic tonsils that resulted in the August 1968 tonsillectomy were incurred during active service. 4. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current allergic rhinitis and sinusitis (resolved) were incurred in, aggravated by, or otherwise the result of his active service. 5. The grant of service connection for tonsillectomy residuals renders moot the Veteran's claim for compensation under the provisions of 38 U.S.C.A. §§ 1151 for a chronic disability manifested by throat pain. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for tonsillectomy residuals are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for a grant of service connection for a chronic disability manifested by chronic and frequent colds are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The Veteran's claim for compensation under 38 U.S.C.A. § 1151 for a chronic disability manifested by throat pain is moot. 38 U.S.C.A. §§ 1151, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.381, 20.1100 (2012); Hornick v. Shinseki, 24 Vet. App. 50 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that service connection is warranted for tonsillectomy residuals. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Moreover, this benefit, in turn, renders moot the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a chronic disability manifested by throat pain. Therefore, the VCAA analysis below only applies to the claim of service connection for a chronic disability manifested by chronic and frequent colds. The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice 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). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via letters dated in June and August 2006, both of which were sent prior to the respective rating decisions that are the subject of this appeal. He was also sent additional notification via a February 2012 letter followed by readjudication of the appeal by a February 2013 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. These letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information used by VA to determine disability rating(s) and effective date(s). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records to include the July to August 1968 report of VA hospitalization for tonsillectomy. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, he was accorded a VA medical examination regarding this case in March 2012 which included a supplemental opinion in February 2013 from a different clinician that addressed the etiology of the claimed disabilities that are the subject of this appeal. As this opinion was based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the February 2013 VA medical opinion, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks service connection for a chronic disability that is productive of frequent colds and throat pain; he also seeks entitlement to VA compensation benefits for the latter condition under 38 U.S.C.A. § 1151. In pertinent part, he has indicated that these disabilities originated during his active service, and that he has had recurrent symptoms since that period. The Veteran's current complaints of chronic and frequent colds, and throat pain, have been attributed to allergic rhinitis, sinusitis (resolved), and status-post tonsillectomy. Service Connection Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). With respect to his claim of service connection for a chronic disability productive of frequent colds and throat pain as directly related to service, the Board notes that the Veteran was treated for colds, as well as respiratory and throat problems, while on active duty. For example, records dated in December 1965 note that he complained of a sore throat and it was noted his tonsils were enlarged. Subsequent records dated in September 1966 noted that he had chest pain on inspiration, and evidence of pleurisy by history with no change in physical examination. He was treated for a cold in November 1966. He was also treated for complaints of sore throat, nasal congestive, and productive cough followed by great amount of mucous in May 1967. Further, he complained of having chronic or frequent colds on a June 1967 Report of Medical History that was completed in conjunction with his separation examination which were noted as being not debilitating. Nevertheless, there was no indication of any chronic disability on the separation examination itself. In fact, the Veteran's nose, sinuses, mouth and throat, as well as his lungs and chest were clinically evaluated as normal on this examination. The Board also notes, however, that a July to August 1968 Report of VA hospitalization reflects the Veteran underwent a tonsillectomy in August, and that he reported a 2 year history of chronic tonsillitis/throat pain which would have been during his period of active service. Diagnosis was hypertrophic tonsils. As an initial matter, the Board observes that the Veteran is competent, as a lay person, to describe symptoms of throat pain. Moreover, there are documented in-service findings regarding enlarged tonsils during his active service. The Board also finds it particularly significant that he reported a 2-year history in July 1968 of chronic tonsil/throat problems which would have been during his active service. As these complaints were made decades prior to his claim for VA benefits, they were clearly for treatment purposes only. Therefore, it adds to the credibility of the Veteran's statements. As noted above, the Federal Circuit has held that lay testimony describing symptoms can support a later diagnosis by a medical professional. See Davidson, Jandreau. In this case, the Veteran provided the same complaints of throat pain both during service and shortly thereafter, both times leading to findings regarding his tonsils. Further, as a result of these complaints, he underwent surgery slightly over a year after service. Consequently, the facts of this case indicate that the condition for which the Veteran sought treatment which ultimately resulted in the August 1968 tonsillectomy is the same as that for which he was treated during active service as documented by the December 1965 service treatment record. The Board also notes that the Court held in Alemany v. Brown, 9 Vet. App. 518 (1996), that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects that the hypertrophic tonsils that resulted in the August 1968 tonsillectomy were incurred during active service. Therefore, service connection is warranted for tonsillectomy residuals (the current throat disability). In regard to the claim of service connection for a chronic disability manifested by frequent colds, the Board notes that the Veteran is competent, as a lay person, to describe symptoms of a cold. However, the Board also notes that there are multiple causes of colds, many of which are of an acute nature. Therefore, the Board finds that competent medical evidence is required to determine whether the Veteran has a chronic disability manifested by colds, and, if so, whether such disability developed as a result of his active service. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). In fact, the only competent medical evidence of record to address the Veteran's claims is that of the February 2013 supplemental opinion to the March 2012 VA examination. As already noted, the Veteran's current complaints have been diagnosed as allergic rhinitis, sinusitis (resolved), and status-post tonsillectomy. Inasmuch as the Board has already determined that service connection is warranted for tonsillectomy residuals, that portion of the appeal has been resolved and will not be adjudicated herein. Regarding the allergic rhinitis and sinusitis (resolved), the February 2013 VA clinician opined that these disabilities were less likely that not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the VA clinician acknowledged that the Veteran reported having "chronic and frequent colds" since service. However, the active duty medical records contained evidence only for two upper respiratory infections (colds) which would be neither chronic nor frequent. Moreover, there were no complaints or evaluations for rhinitis or allergy related symptoms while on active duty. The VA clinician also noted that VA examinations of the Veteran provided no evidence on ongoing sinusitis, rhinitis associated with significant nasal obstruction, or of posterior pharynx evidence of other than status-post tonsillectomy, just stable allergic rhinitis since 2006, well controlled with medication. In sum, the VA clinician found that the in-service symptomatology documented in the service treatment records were not indicative of a chronic disability nor the currently diagnosed allergic rhinitis and sinusitis (resolved). Moreover, the VA clinician intimates that the current findings were not indicative of a chronic disability. Nevertheless, in McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the adjudication of the claim. As such, the findings of allergic rhinitis and sinusitis (resolved) is sufficient for a finding of current disability for the purposes of adjudicating this claim. With respect to the VA clinician's opinion as to the etiology of the current disability, the Board notes that in determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the VA clinician was aware of the Veteran's contentions and medical history from review of the VA claims folder, and summarized pertinent findings therein as part of the February 2013 supplemental opinion. Further, the VA clinician did not express his opinion in speculative or equivocal language. Moreover, the VA clinician supported his opinion by stated rationale with reference to the documented medical findings that are presumed to be within his competency to determine. Finally, there is no competent medical opinion which refutes the findings of the February 2013 VA clinician on this matter nor the stated rationale. Therefore, the Board finds that the preponderance of the competent medical and other evidence is against a finding that the Veteran's current allergic rhinitis and sinusitis (resolved) were incurred in, aggravated by, or otherwise the result of his active service. As the preponderance of the evidence is against the claim of service connection for allergic rhinitis and sinusitis (resolved), the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. 38 U.S.C.A. § 1151 Under the current provisions of 38 U.S.C.A. § 1151 compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S.C.A. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that (1) Care, treatment, or examination. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d). For the reasons stated above, however, the Board has already determined that service connection is warranted for tonsillectomy residuals, which is the benefit sought under this 38 U.S.C.A. § 1151 claim. Moreover, compensation for service-connected disability is a greater benefit than compensation under 38 U.S.C.A. § 1151. See Hornick v. Shinseki, 24 Vet. App. 50, 53-55 (2010) (examining the different ancillary benefits available to service-connected veterans compared to those receiving compensation under section 1151 and observing that section 1151 does not accord service-connected status to a veteran's disability or death). Thus, there is effectively no longer any remaining allegation of error of fact or law concerning the issue of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a throat disability because if any additional disability was incurred from the 1968 tonsillectomy performed on the Veteran at the VA facility he would already be compensated for such residuals. See 38 U.S.C.A. §§ 7104, 7105(d)(5). Simply put, due to the grant of service connection for tonsillectomy residuals, the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a chronic disability manifested by throat pain is moot and is dismissed. ORDER Service connection for tonsillectomy residuals is granted. Service connection for a chronic disability manifested by chronic and frequent colds is denied. The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a chronic disability manifested by throat pain is dismissed. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs