Citation Nr: 1317523 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-34 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bronchitis. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for rhinitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to May 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before a Decision Review Officer (DRO) in October 2008. The Veteran and his wife also testified at a Board hearing at the RO in Waco, Texas in April 2011. These transcripts have been associated with the file. The case was before the Board in February 2012, and remanded to allow the RO to further assist the Veteran in the development of his appeal, to include obtaining treatment records and affording him a VA examination. The claims were again before the Board in December 2012 and were remanded for development to include obtaining VA treatment records and affording the Veteran new VA examinations. The Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran was afforded a VA examination in February 2013. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The issue of entitlement to service connection for bronchitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against a finding that sinusitis or rhinitis are related to service. CONCLUSION OF LAW The criteria for a grant of service connection for sinusitis and rhinitis have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING 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 Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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, 3.326(a). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The notice requirements were met in this case by a letter sent to the Veteran in June 2007. This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are in the file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in March 2012 and the examiner provided an addendum opinion in February 2013. These opinions were rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-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. Barr v. Nicholson, 21 Vet. App. 303, 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. Layno v. Brown, 6 Vet. App. 465 (1994). 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. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); 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'). 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). Analysis The Veteran contends that his sinusitis and rhinitis began in service, or in the alternative that his sinusitis pre-existed service and was aggravated by service. The preponderance of the evidence is against the claims and the appeals will be denied. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progression of the preexisting condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, supra. If this burden is met, then the Veteran is not entitled to service-connected benefits. Wagner at 1096. The Veteran was afforded a medical examination at entrance to service in May 1972. There were no defects found for a respiratory condition and the Veteran then denied having or ever having had sinusitis, hay fever, chronic or frequent colds, shortness of breath, or a chronic cough. At his separation examination in May 1975 the Veteran was found qualified for separation from service with no diagnosed respiratory conditions. In an April 1976 examination the Veteran denied sinusitis, shortness of breath, chronic cough, or chronic or frequent colds. He reported hay fever which occurred occasionally while in the Texas area. Although the Veteran testified at his April 2011 Board hearing that he entered service with sinusitis, there is no evidence of this on his medical examination reports. The Court has held that the regulation provides expressly that the term 'noted' denotes only such conditions as are recorded in examination reports, and that a mere history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). Accordingly, the Veteran is presumed sound on entrance to service. The lack of complaints or diagnoses for a respiratory condition in-service weigh against the Veteran's claims that these disorders began in-service and continued on thereafter. The first post-service reference to sinusitis or rhinitis is dated approximately 17 years after the Veteran was discharged from active duty - a May 1992 private treatment record noted a diagnosis of rhinitis. See also May 1994 private treatment record. Previously, a May 1981 private treatment record showed clear lung fields. In May 2001 the Veteran reported shortness of breath. In May 2002 he was diagnosed with sinus and allergy problems. In May 2004 the Veteran reported with sinus problems which he related to allergies. In January 2007 there was evidence of a lung base abnormality. See also November 2009 x-ray report. In an August 2009 VA treatment record he had occasional shortness of breath with exertion. In February 2010 the Veteran's lung x-ray was normal and August 2010 the Veteran's breathing was normal. At his October 2008 DRO hearing the Veteran testified that he was treated on his ship, the U.S.S. Fort Fisher, and given inhalers for his respiratory conditions. He also testified his symptoms included watery eyes, a runny nose, and breathing problems. At his April 2011 Board hearing the Veteran testified that his asthma and sinusitis began prior to service. He also testified that he was treated in sick call for respiratory conditions. The Veteran was afforded a VA examination in March 2012. He reported being diagnosed with asthma and bronchitis at age 10. He also reported receiving inhalers pre-service. He stated that his lungs became worse in service while working as a machinist. At this examination the Veteran did not require the use of inhaled medications or antibiotics for his claimed respiratory conditions. He reported using Primatene mist as needed for wheezing. A chest x-ray performed was normal. In an April 2012 addendum opinion the examiner stated that there was nothing in the service treatment records about sinusitis or other respiratory conditions and accordingly, it was less likely than not these conditions were related to service. In a May 2012 addendum opinion the examiner also stated he had reviewed the claims file in coming to his conclusion, but that there was no evidence to establish the presence of chronic allergic rhinitis or chronic/recurrent sinusitis while on active duty. Therefore, it was less likely than not that these conditions were related to service. In February 2013 the RO obtained an additional VA opinion. The examiner opined that it was less likely than not that the Veteran's current allergic rhinitis or sinusitis was related to service. His rationale was that there was no evidence in the service treatment records, or within one year of service, of rhinitis or sinusitis. There was also no evidence in post-service records to show sinusitis or rhinitis within one year of separation from service. The examiner also found no evidence to relate the Veteran's current symptoms with any in-service complaints, to include his complaints of hay fever. The claims will be denied. As to direct service connection, although the Veteran reported hay fever, this was occasional and he was not diagnosed with a chronic condition. There is no diagnosis of sinusitis or rhinitis in his service treatment records. The preponderance of the evidence is against the Veteran's claims for service connection. The lack of competent evidence in service and continuously thereafter and the lack of evidence linking the Veteran's current respiratory conditions to service, to include the negative VA examiner's opinion, weigh against the Veteran's contentions. The Veteran is competent to report sinus problems and congestion. However, the probative evidence indicates that the Veteran's respiratory conditions symptoms developed well after separation. Although the Veteran has submitted his own lay statements indicating that his sinusitis and rhinitis began in service, he did not complain of these conditions, nor were they diagnosed. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, sinusitis and rhinitis fall outside the realm of common knowledge of a lay person. See Jandreau, supra. In this case, given the Veteran's lack of medical expertise, his assertions that his respiratory conditions are related to service are beyond his competence. These statements are greatly outweighed by the VA examiner's negative opinion and the lack of diagnosis or treatment in service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for sinusitis and rhinitis and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for rhinitis is denied. REMAND The claim was remanded in December 2012 to obtain an addendum opinion as to whether the Veteran's bronchitis was related to service. The examiner was specifically instructed that he should take into account the Veteran's lay statements and post-service diagnoses of bronchitis. The VA examiner offered an opinion in February 2013 and stated there was nothing in the Veteran's service treatment records showing bronchitis. He opined it was less likely than not that any bronchitis was related to service as nothing in the service treatment records linked bronchitis to the military. The RO has not substantially complied with the December 2012 remand instructions. Even if not initially obligated to do so, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, the Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The February 2013 VA examiner again stated there was no evidence of bronchitis in the service treatment records and therefore, this condition was not related to service. On remand, the examiner must address the Veteran's lay assertions and post-service medical records. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate clinician to render an addendum opinion. A new examination should only be scheduled if the clinician deems it necessary. a) The purpose of the addendum opinion or new examination is to determine whether the Veteran has bronchitis as s result of (to include aggravated by) his military service. All indicated tests or studies necessary for an accurate assessment must be conducted. b) The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. c) THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. d) The examiner must independently review the record for pertinent evidence, but his or her attention is called to the evidence identified below: * The Veteran's separation examination where he reported having hay fever. * A May 1981 x-ray showing clear lungs. * A May 2001 VA treatment note showing no shortness of breath. * A May 2004 private treatment note showing a diagnosis of bronchitis. * A May 2005 note showing a diagnosis of bronchitis. * A January 2007 x-ray showing a lung base abnormality. * An August 2009 VA examination report noting occasional shortness of breath with exertion. * A November 2009 chest x-ray showing lung base abnormality. * A February 2010 private x-ray showing normal lungs. * An August 2010 VA examination report noting that the Veteran's breathing was normal. * The Veteran's April 2011 hearing testimony that he was treated for respiratory problems in service while working as a machinist's mate in an engine room aboard a ship. d) If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. e) The examiner must provide an opinion as to whether the Veteran's diagnosed bronchitis began during active service, is related to any incident of service, or was aggravated by service. f) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs