Citation Nr: 1318322 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 06-22 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a sinus disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to September 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case was previously before the Board in May 2010, March 2012 and September 2012 at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include obtaining a VA medical opinion. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDINGS OF FACT 1. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has a current sinus disorder that was incurred in, or aggravated by, active duty. 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's current rhinitis and large nasal septal perforation were incurred in, or aggravated by, active duty. CONCLUSION OF LAW A sinus disorder was not incurred in, or aggravated by, active duty. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance 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). Notice was provided in letters dated in July 2004 and March 2006. The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, and statements from the Veteran. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA conducted an examination in October 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the October 2012 VA examination report, and an accompanying October 2012 addendum, are more than adequate, as they reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for the opinions offered. They consider all of the pertinent evidence of record, including the statements of the Veteran. In addition, the VA examination report and the accompanying addendum properly address the questions posed by the Board's September 2012 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the examiner reviewed the Veteran's claims file, including his enlistment examination report and the October 1974 treatment report. The examiner was asked whether the Veteran had a current diagnosis of a "sinus disorder." The examiner was to answer additional questions regarding aggravation only if the Veteran did have a current diagnosis of a "sinus disorder." As addressed in detail below, the October 2012 VA examination report and addendum clearly state that the Veteran does not have a current "sinus disorder." Thus, the additional questions regarding aggravation did not need to be addressed. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. 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 of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). For purposes of service connection pursuant to § 1110, 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 the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. For those disorders that preexisted service and were worsened or "aggravated" during such service, a Veteran may obtain service connection. 38 U.S.C.A. §§ 1110, 1111, 1153. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where pre-service disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The Veteran contends that he did not suffer from chronic allergies and sinus problems until his military service. He contends that he incurred chronic sinus problems due to environmental factors while stationed in California. He asserts that his sinus problems would resolve any time he went back home to Texas. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for a sinus disorder. Despite the Veteran's contentions of not suffering allergies until his military service, his service treatment records reveal that he checked a box on his September 1973 entrance examination indicating ear, nose, and throat trouble, "hay fever" and frequent colds. However, he was not actually diagnosed with any sinus-related abnormality on entrance into the military. Aside from the Veteran's check-marked box on his military entrance examination, there is nothing in the claims folder that objectively shows a pre-military sinus condition. The Veteran's service treatment records reveal regular treatment for nasal congestion, upper respiratory infections, allergic rhinitis, sinusitis, "hay fever" and viral syndrome. An October 1974 service treatment record notes the Veteran's "fairly long history of bronchial allergy since living here, which clears up on going back to Texas." This record was noted in California, where the Veteran was stationed. At that time, he was diagnosed with allergic rhinitis. The Veteran has a well documented post-service history of cocaine use causing permanent residuals, to include large nasal septal perforation. According to post-service medical evidence, the perforation aggravates the Veteran's current sinus problems. The report of the October 2012 VA examination provides that the examiner reviewed the Veteran's CPRS files. The record reveals that the examiner had previously reviewed the Veteran's claims file in connection with earlier VA examinations and opinions, most recently in April 2012. The examiner stated that his current physical examination of the Veteran, and the results of a September 2012 CT scan, provide clear and convincing evidence that chronic sinusitis was not present. He stated that the Veteran had chronic rhinitis with a large nasal septal perforation, noted on both anterior rhinoscopy and nasal endoscopy, secondary to recreational intranasal cocaine use. In the October 2012 addendum, the examiner stated that he reviewed the Veteran's claims file again, read the March 2012 remand, and reviewed the Veteran's service treatment records again. The examiner recited significant findings from the Veteran's service treatment records, including those set forth on his enlistment examination report and the October 1974 treatment report. The examiner reiterated that at the present time, the "sinus disorder" that the Veteran currently had consisted of a very large nasal septal perforation with associated chronic rhinitis. The examiner stated that there appeared to be no question of prior use of intranasal cocaine, which was notorious for causing the clinical picture of nasal septal perforation and chronic rhinitis with crusting that the Veteran currently exhibited. The examiner stated that the Veteran informed him during a prior examination that he began the use of cocaine while on active duty. The examiner stated that from his review of the historical data checked by the Veteran prior to military enlistment, it seemed apparent that the same illnesses described by the Veteran prior to enlistment continued while on active duty, and were, in fact, a continuation of what preceded active duty service. The examiner stated that the Veteran's current signs and symptoms of chronic rhinitis and large nasal septal perforation were not even remotely similar to what was present prior to or during active duty. He stated that in his opinion the current clinical picture was compatible with documented use of intranasal cocaine, and that the Veteran's use of cocaine was the etiology of his current "sinus" disorder. The examiner stated that is was his opinion that the it was less likely than not that the Veteran's sinus disorder had its onset in service. The Board again observes that, according to the September 2012 remand, the VA examiner was to answer additional questions regarding aggravation only if the Veteran did have a current diagnosis of a "sinus disorder." As the examiner found that the Veteran did not have a current "sinus disorder," the additional questions regarding aggravation did not need to be addressed. The Board finds that the October 2012 VA medical opinions (that the Veteran has no current "sinus disorder" other than allergic rhinitis and a large nasal septal perforation caused by cocaine use) constitute probative evidence against the Veteran's claim. They are based on current examination results and a review of the entire medical record, including the Veteran's service treatment records and the specific medical records identified by the Board's September 2012 remand. The examiner explained his opinions with references to the Veteran's active duty and post-service medical history, which he analyzed in terms of medical principles. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board finds it significant that there is no medical evidence to the contrary of the October 2012 VA medical opinions. In fact, the record is negative for any evidence showing that the Veteran incurred or aggravated his current allergic rhinitis and large nasal septal perforation during or as a result of active duty. In this regard, the fact that in the examiner's view the Veteran's current signs and symptoms of chronic rhinitis are not even remotely similar to what was present prior to and during active duty demonstrates that the Veteran did not incur or aggravate his current allergic rhinitis during or as a result of active duty. Moreover, the examiner specifically stated that the Veteran's chronic rhinitis was associated with the Veteran's very large nasal septal perforation, and that use of intranasal cocaine was notorious for causing the clinical picture of nasal septal perforation and chronic rhinitis with crusting that the Veteran currently exhibited. In this regard, applicable regulations provide that no compensation shall be paid if the disability resulting from injury or disease in service is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002 & Supp. 2011). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301 (2012). The Board acknowledges the assertions by the Veteran in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. The Board finds that his assertions are credible. However, the Veteran's contentions that he now has a sinus disorder, that he incurred or aggravated during active duty, do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran has a current sinus disorder that was incurred or aggravated during active duty) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent 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). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau, supra. The Veteran is competent to state that he observed the claimed symptoms during or after service. The Board finds him to be credible in this regard. However, he is not competent to attribute the coincidence of symptoms occurring during or after service as establishing the diagnosis and etiology of his current symptoms. As such, the Board finds that the Veteran's assertions (that he now has a sinus disorder that was incurred or aggravated during active duty) are outweighed by the October 2012 VA medical opinions (that the Veteran has no current sinus disorder, and his current very large nasal septal perforation with associated chronic rhinitis was caused by recreational intranasal cocaine use). In sum, the evidence demonstrates that the Veteran is not entitled to service connection for a sinus disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a sinus disorder is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs