Citation Nr: 1316844	
Decision Date: 05/22/13    Archive Date: 05/31/13

DOCKET NO.  10-15 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for chronic sinusitis.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. Bruce, Counsel




INTRODUCTION

The Veteran served on active duty from January 1953 to December 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Board remanded the above stated issue in January 2013 for further development. A request was made any outstanding VA medical center (VAMC) records as well as any additional private records. Treatment records from the Muskogee VAMC were obtained. The request for information regarding any additional private treatment records received no reply from the Veteran.

The VAMC treatment records obtained comply with the January 2013 remand directives to request any additional outstanding treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand).

Moreover, while VA has a duty to assist the claimant in developing evidence pertinent to his claim, the appellant also has a duty to assist and cooperate with VA in developing this evidence. 38 C.F.R. § 3.159(c). The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Because the appellant did not respond to the request for any additional private treatment records, has not cooperated with the AMC in providing enough information to enable VA to obtain any home healthcare records on her behalf, no further action is necessary. Therefore, the Board may proceed with appellate review.



A review of the Virtual VA paperless claims processing system was conducted.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The Veteran is competent and credible to report the circumstances of his service and his symptoms.

2. The report of a March 2011 VA examiner is competent evidence that the Veteran does not have chronic sinusitis as the result of his active duty service.

3. Any currently demonstrated sinus condition is shown as less likely as not to be related to any in-service event.


CONCLUSION OF LAW

The criteria for entitlement to service connection for chronic sinusitis are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).

A November 2008 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection. The letter also notified him how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet.App. 112 (2004).

In October 2008, VA requested the Veteran's service treatment and service personnel records from the National Personnel Records Center (NPRC). The Veteran was notified that his service treatment and service personnel records may have been destroyed in a fire in a December 2008 letter from the RO. In December 2008, NPRC informed VA that no medical records were on file at NPRC and the records were "fire related." Additional attempts to obtain the requested records would be futile. Accordingly, no further attempts by VA to obtain the service treatment records are warranted. See 38 U.S.C.A. § 5103A(b)(3).

In a February 2009 letter the Veteran was again asked to provide any available records as well as information to assist the RO in locating necessary records. See Dixon v. Derwinski, 3 Vet. App. 261 (1992) (holding that, when a claimant's service treatment records have been destroyed or lost, VA is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony or other documents created while he was in service, to support his claim). He did not supply any evidence or information by which VA could assist in obtaining additional evidence.

The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, to decide the appeal would not constitute prejudicial error, as the notification requirements of the VCAA have been satisfied and the Veteran has been provided a meaningful opportunity to participate in development of his claim.

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains reports of post-service medical treatment and a report of a March 2011 VA examination for nose, sinus, larynx, and pharynx. VA has a duty to ensure the resulting medical opinions are adequate. Barr v. Nicholson, 21 Vet.App.303, 312 (2007). The March 2011 examination report reflects review of the claims file, an interview with, and examination of, the Veteran. The examination is adequate to decide this claim.

The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claim. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2012). 

Service Connection

The Veteran seeks service connection for chronic sinusitis resulting from a severe sinus infection during service. There is no competent, probative evidence supporting his claim. The Board must deny his claim. 38 C.F.R. § 3.102.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372  (Fed. Cir. 2007).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As sinusitis is not a chronic disease under § 3.309(a), the Court finds as a matter of law that continuity of symptomatology may not serve in lieu of medical nexus. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

The Veteran testified at his January 2011 regional office hearing that while stationed in France at some point between August to September 1953, he was hospitalized for 5 to 7 days for a fever resulting from a sinus infection. 
There are no service treatment records available to corroborate the Veteran's contentions. He further stated that when he would have sinus trouble after service he treated them with medication provided from his family doctor. There are no records available to corroborate the treatment. 

Treatment records from the Muskogee VAMC indicated that the Veteran was treated in November 2003 and February 2006 for recurring allergy symptoms including nasal congestion. The record further indicated that the Veteran took prescription nasal spray and over-the-counter medications to treat his allergy symptoms. 

The Veteran was afforded a VA examination in March 2011. The examiner reviewed the Veteran's VA medical records and took a thorough medical history from the Veteran. The examiner noted the 1953 sinus infection as well as another incident in 1955 which involved a throat infection as reported by the Veteran. The Veteran further reported that he began seeking treatment at the Muskogee VAMC for sinus infection in approximately 2000 or 2001. The Veteran stated the last time he required antibiotic treatment for a sinus infection was in 2000. He reported past use of nasal sprays and current use of over-the-counter decongestant approximately once a week. The Veteran reported that he smoked less than a pack-a-day of cigarettes for five years, but quit in 1983. Finally, he reported he currently had an infrequent cough productive of a scant amount of white or yellow mucus.  After a thorough physical examination the examiner diagnosed the Veteran with intermittent nasal congestion associated with a diagnosis of chronic sinusitis. He further opined, after a review of medical records, medical history, a physical examination, and review of relevant medical literature, that the Veteran's intermittent nasal congestion was less likely as not permanently aggravated or the result of any event or condition that occurred during active duty service. The examiner further opined that his intermittent nasal congestion was at least as likely as not the result of a risk condition in the general population and/or past tobacco use.  Finally the examiner noted that there were no reports of illnesses that met the diagnostic criteria of rhinosinusitis. Chronic rhinosinusitis (CRS) is defined as an inflammatory condition involving the paranasal sinuses and lining of the nasal passages that lasts 12 weeks or longer despite attempts at medical management. There are four cardinal signs: anterior and/or posterior mucopurulent drainage; nasal obstruction; facial pain, pressure, and/or fullness; and decreased sense of smell. At least two of the cardinal signs, as well as objective documentation of mucosal inflammation, must be present to consider a diagnosis of CRS.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet.App. 67, 74 (1997). 




The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In addition, the U.S. Court of Appeals for Veterans Claims (Court) held that the credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997).

The Veteran's contends that his current sinus issues are related to a severe sinus infection during service. The Veteran's service treatment records are, unfortunately, unavailable for review; however, it is noted that the record is silent with regard to post-service treatment of any sinus condition prior to 2001, which did not note a diagnosis of chronic sinusitis. The initial treatment was almost 47 years after the Veteran's separation from active duty service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim). 

Laypersons are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his opinion is not competent with regard to an assessment as to etiology. With regard to the Veteran's claim for chronic sinusitis the Board finds that the lay statements as to a nexus are outweighed by the probative medical evidence of record which does not relate the Veteran's intermittent nasal congestion to any incident of the Veteran's military service. 

The March 2011 VA examiner's addendum opinion is the most probative medical evidence addressing the etiology of the Veteran's disorder, because it is clearly factually informed, medically based and responsive to this inquiry. The examiner provided a full and complete rationale for his opinion which was based on a review of the file. The examiner reviewed the Veteran's medical history and determined that his intermittent nasal congestion was more likely the result of a condition in the general population and/or his past tobacco use. As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). As the March 2011 VA examiner's opinion is based upon an evaluation of the Veteran and review of the claims folder, the Board finds that it is entitled to the most weight regarding the etiology of the Veteran's sinus condition. The opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995).

Most critically, the Veteran's essential contention of a nexus between the in-service severe sinus infection and any current diagnosis of a sinus condition has been fully investigated as mandated by the Court's decision in Jandreau. The Board finds the evidence against the claim to be more probative than the evidence in favor of the claim. Therefore, the Veteran's claim for service connection for chronic sinusitis must be denied. 


ORDER

Service connection for chronic sinusitis is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs