Citation Nr: 1317173 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 06-35 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for upper respiratory infections. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1984 to May 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the claim. The Board notes that the Veteran's initial claim was for service connection for upper respiratory infections, to include bronchitis and sinusitis. The medical evidence of record indicates that the Veteran has a current diagnosis of allergic rhinitis. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Board has recharacterized the claim as entitlement to service connection for upper respiratory infections, as styled on the title page. In November 2009, January 2011 and August 2012, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. At no time during the appeal period did the Veteran have a diagnosis of bronchitis or sinusitis. 2. At no time during service did the Veteran have a diagnosis of allergic rhinitis and it is not shown by competent evidence that his current diagnosis of allergic rhinitis is related to service. CONCLUSION OF LAW The criteria for service connection for upper respiratory infections have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Prior Board Remands The Board observes that this case was previously remanded in November 2009, January 2011 and August 2012. The purpose of the November 2009 remand was to obtain a VA examination to diagnose the Veteran's current upper respiratory disorders and secure an opinion as to whether or not these disorders had their onset in-service. A VA examination was conducted in April 2010. However, the examiner incorrectly found that the Veteran was not diagnosed with sinusitis and bronchitis in-service. Therefore, in January 2011, the case was remanded by the Board in order to obtain an adequate medical examination and opinion. The record documents that a VA examination was provided in February 2011. While this examiner correctly summarized the Veteran's prior medical history, the Board found a clarification was necessary as to whether the Veteran's post-service diagnoses of bronchitis and sinusitis were acute infections or chronic diseases. Thus, the case was remanded in August 2012 to accomplish this additionally evidentiary development. In September 2012, an adequate addendum VA medical opinion was provided by the February 2011 VA examiner. See 38 C.F.R. § 3.159(c)(4). It appears there has been substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Appropriate notice was provided in May 2005 and August 2006 letters and the claim was subsequently readjudicated, most recently in January 2013. Mayfield, 444 F.3d at 1333. The Veteran's service treatment records (STRs) from 1984 to 1995, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated that he is in receipt of disability benefits from the Social Security Administration or that there are any pertinent outstanding medical records. 38 C.F.R. § 3.159 (c)(2). The Veteran was afforded VA examinations in April 2010 and February 2011, with an addendum medical opinion obtained in September 2012. The February 2011 VA examination and subsequent September 2012 VA medical opinion are sufficient, as they considered the Veteran's statements and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. Thus, VA's duty to assist with respect to obtaining an examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim for service connection at this time. III. Service Connection The Veteran contends he currently has upper respiratory infections, including bronchitis and sinusitis that had their onset during his military service. See, e.g., Claim for Service Connected Disability, February 2005. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, diagnosis of chronic versus acute upper respiratory infections and determination of their etiology, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a diagnosis of the Veteran's current upper respiratory infections and to address the question of whether his current infections, if any, had their onset in-service. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). The Veteran's STRs show that in March 1984, the Veteran self-reported no history of ear, nose, or throat trouble, chronic or frequent colds, sinusitis, hay fever, asthma, shortness of breath, pain or pressure in chest or chronic cough. See Report of Medical History, March 1984. The Veteran did report suffering from mononucleosis prior to entering the service, along with a history of head injury, heart trouble, high or low blood pressure, broken bones and foot trouble. Id. His service entrance examination noted his nose, sinuses, mouth, throat, lungs and chest were normal. See Report of Medical Examination, March 1984. In May 1984, the Veteran was seen by doctors for a productive cough, congestion, runny nose and general malaise. His lungs were clear and a diagnosis of an upper respiratory infection was made. Five days later, the Veteran had a follow-up appointment, where the Veteran complained his coughing and sneezing were getting worse. The Veteran stated that he had a possible undocumented case of bronchitis as a teenager. The diagnosis was a chronic upper respiratory infection. The same day, the Veteran was seen by a different doctor who diagnosed sinusitis. The Veteran sought medical care in January 1985 as a result of a stuffy head and cough and he was diagnosed with a cold. In June 1987, he was seen by a doctor due to a cold, sore throat and drainage. The medical assessment was r/o strep. On his July 1988 Report of Medical History, the Veteran noted that he did not have ear, nose, or throat trouble, chronic or frequent colds, sinusitis, hay fever, asthma, shortness of breath, pain or pressure in chest or chronic cough. His July 1988 Report of Medical Examination noted his nose, sinuses, mouth, throat, lungs and chest were normal. In January 1990, the Veteran complained of having a cold for approximately three weeks with symptoms of sinus congestion, runny nose and cough. The diagnosis was influenza questionably secondary to bronchitis. There are several notations in the Veteran's STRs about his smoking and recommendations to stop smoking, along with the Veteran's statement that he quit smoking in January 1992. See Chronological Record of Medical Care, February 1987. The STRs also show the Veteran was treated for problems with his blood pressure and his weight. The Veteran noted on his March 1994 Report of Medical History that he did not have ear, nose, or throat trouble, chronic or frequent colds, sinusitis, hay fever, asthma or chronic cough. However, he did document a history of shortness of breath, pain or pressure in chest, high or low blood pressure, frequent indigestion, broken bones, frequent or painful urination, recent gain or loss of weight, recurrent back pain, and use of tobacco. In January 1995, the Veteran self-reported no history of chronic or frequent colds, sinusitis, hay fever, asthma, shortness of breath, pain or pressure in chest or chronic cough. See Report of Medical History, January 1995. The Veteran did list a history of high or low blood pressure, frequent indigestion, broken bones, recent gain or loss of weight, recurrent back pain and tobacco use. Id. The Veteran's separation examination noted his nose, sinuses, mouth, throat, lungs and chest were normal. See Report of Medical Examination, January 1995. Post-service medical records show that in July1995, the Veteran reported he had generally good health and denied a history of respiratory problems. See West Palm VA Medical Center (VAMC) Records, July 1995. In December 1995, the Veteran's dental records show he reported taking antibiotics to treat bronchitis. In July 2000, the Veteran reported to his doctor that he was taking antibiotics to treat bronchitis. See North Texas VAMC Records, July 2000. The Veteran sought medical treatment in January 2003, complaining of a cough. Id., January 2003. The doctor noted lungs with rales, no wheeze and the diagnosis was a cough. Id. The doctor prescribed an expectorant and oral cough suppressant. Id. Later that same year, the Veteran complained of a cough and runny nose with white phlegm. Id., November 2003. The active problems listed were tonsillitis and acute sinusitis. Id. In October 2004, the Veteran went to the doctor complaining of a dry cough and was diagnosed with bronchitis. Id., October 2004. The Veteran was provided a VA respiratory examination in April 2010. The examiner reviewed the claims folder, but erroneously found the Veteran had not been diagnosed with sinusitis or bronchitis while in-service. The Veteran reported a history of chronic nasal congestion with postnasal drip, sinus congestion, sneezing and coughing attacks once to twice a month. He reported taking over-the-counter decongestants to deal with these symptoms. He also reported a history of recurrent bronchitis that requires antibiotics once every other year. The examiner found pulmonary function studies from March 2010 were normal and a chest x-ray from 2006 was within normal limits. The diagnosis was allergic rhinitis, recurrent and bronchitis, in remission. The examiner opined that it was less likely than not that the Veteran's current upper respiratory condition had its onset during military service. The Veteran underwent a second VA respiratory examination in February 2011. The examiner reviewed the Veteran's claims folder including his STRs and private medical records. The Veteran stated that he had an onset of infections while in the Navy and reported drainage that causes coughing, runny nose, allergic reaction, and wheezing. He takes a steroid nasal spray and gets a yearly flu shot, which seem to help his symptoms. The examiner reviewed a June 2006 chest x-ray which had no signs of acute cardiopulmonary disease. The examiner compared an October 2004 x-ray with the June 2006 x-ray and found the lungs clear of infiltrates, with the chest unchanged since the comparison exam. The examiner also reviewed the Veteran's normal March 2010 pulmonary function test and normal April 2010 sinuses test. The examiner diagnosed the Veteran with allergic rhinitis. The examiner opined that the Veteran's allergic rhinitis is less likely as not caused by or a result of his symptoms in service. The rationale provided was that all of the Veteran's respiratory diagnoses in-service were for acute infections and not chronic diseases. The examiner explained that the May 1984 use of the word chronic to describe the Veteran's upper respiratory infection was meant to describe an acute condition that is continuing. All of the Veteran's in-service respiratory diagnoses were bacterial or viral infections and during this time the Veteran was smoking. It is well know that smokers have a much higher incidence of upper respiratory infections than non-smokers. The examiner opined that the Veteran's current symptoms are allergic, not infectious like sinusitis and bronchitis. The Veteran's STRs contain no reference to allergy symptoms or treatment. In September 2012, the Veteran was provided with an addendum opinion to his February 2011 VA examination. The examiner stated that while post-service the Veteran has had intermittent treatment for bronchitis and sinusitis, his primary symptoms and current treatment are more in line with allergic rhinitis. A review of the Veteran's x-ray reports do not indicate chronic changes associated with chronic sinusitis and chest x-rays do not indicate chronic bronchitis. Therefore, it is less likely than not that the Veteran's current symptoms are related to his military service and treatment received during service. The February 2011 VA examination and September 2012 addendum VA opinion were rendered following a complete review of the Veteran's claims file and include well-reasoned rationale supporting the examiner's conclusions. The opinions are therefore afforded significant probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Bronchitis and Sinusitis Service connection may not be granted without competent medical evidence of a current disability. See Shedden, 381 F.3d at 1167; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). Based on a careful review of the evidence, the Board finds that service connection for bronchitis and sinusitis is not warranted as there is no evidence in the record that the Veteran was diagnosed with these conditions during the appeal period. While the record indicates that the Veteran was treated for acute sinusitis in November 2003 and diagnosed with bronchitis in October 2004, the Veteran filed the current claim in February 2005 and there are no medical records since that date documenting a current diagnosis of bronchitis or sinusitis. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim including evidence of a current diagnosis of bronchitis and sinusitis. However, such evidence has not been presented. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits); see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, even assuming that the Veteran did have a current diagnosis of bronchitis or sinusitis, the VA examiner clearly held that the upper respiratory infections diagnosed and treated during and after service have been acute infections and not chronic diseases. See VA Examination, February 2011; see also VA Medical Opinion, September 2012. Additionally, the VA examiner opined that the Veteran's post-service x-rays do not indicate chronic sinusitis or chronic bronchitis. See VA Medical Opinion, September 2012. Thus, there is no medical evidence supporting a connection between the Veteran's post-service diagnoses of bronchitis and sinusitis and his military service. See Shedden, 381 F.3d at 1167. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for upper respiratory infections of bronchitis and sinusitis. The benefit-of-the-doubt rule does not apply, and this benefit sought on appeal is accordingly denied. See 38 U.S.C.A §5107(b); Gilbert, 1 Vet. App. at 53-56. Allergic Rhinitis The record shows that the Veteran has a current diagnosis of an upper respiratory infection of allergic rhinitis. See VA Examinations, April 2010 and February 2011. Allergic rhinitis is defined as "any allergic reaction of the nasal mucosa; it may occur perennially (nonseasonal allergic) or seasonally (hay fever)." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1639 (32nd Ed. 2012). The Board finds there is no evidence of an in-service incurrence or aggravation of allergic rhinitis. See Shedden, 381 F.3d at 1167. The only upper respiratory infections the Veteran was treated for during service were sinusitis and a suspicion of bronchitis. Throughout service, the Veteran consistently reported no history of hay fever and his March 1984, July 1988 and January 1995 examinations found his nose, sinuses, mouth, throat, lungs and chest were normal. Additionally, the February 2011 VA examiner found the Veteran's respiratory diagnoses in-service were for acute infections not chronic diseases. The examiner opined that while the Veteran's current symptoms are allergic, his in-service diagnoses of sinusitis and bronchitis were infectious, not allergic. The February 2011 VA examiner also reviewed the Veteran's STRs but noted they contain no reference to allergy symptoms or treatment. As a result, the VA examiner opined that the Veteran's allergic rhinitis is less likely as not caused by or a result of his symptoms in service. As there is no evidence of any symptoms attributable to allergic rhinitis until many years after the Veteran's discharge from service and as there is no medical evidence of record suggesting a connection between the Veteran's allergic rhinitis and service, the Board finds no basis for a grant of service connection. Therefore, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for the upper respiratory infection of allergic rhinitis. Therefore, this claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for upper respiratory infections is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs