Citation Nr: 1318510 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 06-25 873 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a sinus/breathing disorder, including allergic rhinitis and septal deviation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from June 1999 to June 2003. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Los Angeles, California. It was remanded by the Board for additional development in May 2010, November 2011, and November 2012. It has now been returned to the Board. FINDINGS OF FACT 1. Septal deviation was manifest during service. 2. The Veteran does not have rhinitis or a sinus disability. CONCLUSIONS OF LAW 1. Septal deviation was incurred during service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). A sinus disorder and allergic rhinitis were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In September 2004 the Veteran was sent a letter that explained what the evidence needed to show in order to establish service connection for a claimed disability. It also explained how VA could assist the Veteran with obtaining evidence in support of his claim. In March 2006 the Veteran was sent a letter that explained how VA assigns ratings and effective dates for service connected disabilities. In May 2008 the Veteran was sent another letter that explained how VA determines disability ratings for service connected disabilities, although the letter was directed at a scar disability. The case was thereafter readjudicated, most recently in February 2013. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, and the written contentions of the Veteran. The Veteran was afforded multiple VA examinations and supplementary opinions that, when read together, adequately addressed the nature and etiology of the Veteran's nose/sinus condition. The most recent opinion was obtained in substantial compliance with the Board's November 2012 remand instructions, and the case was readjudicated thereafter also in compliance with the remand. The Board finds that VA satisfied its obligations pursuant to the VCAA in this case and there was substantial compliance with the November 2012 remand. Service Connection The Veteran contends that he has some type of sinus or breathing disorder due to his military service. He claims his symptoms started in service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's service treatment records are silent for a diagnosed chronic sinus or breathing condition. However, service treatment records reflect that the Veteran reported sinus problems in July 1999, although no diagnosis was made and no treatment was rendered at that time. On a November 2002 dental health questionnaire the Veteran marked that he had seasonal sinus problems. In July 2000 the Veteran reported that occasionally he had difficulty breathing when trying to sleep amongst other symptoms on two occasions and he was diagnosed with anxiety and instructed in better sleep hygiene. He had a suspected virus in June 2001 that was accompanied by mucus build up. In February 2002 the Veteran denied a history of a persistent cough or shortness of breath. In June 2003 the Veteran had nausea/vomiting, headaches, and shortness of breath and was diagnosed with a viral syndrome. The Veteran's sinuses were first examined by VA in September 2010. At that time he reported that air conditioners in the barracks and aboard ship caused dryness and nasal congestion for which he was given a saline rinse. There was no history of sinusitis, asthma, allergic rhinitis, or other breathing conditions. He reported that his nose was clogged and he had trouble breathing through his nose. There was no reported trauma to the nose. Current rhinitis symptoms were nasal congestion, and itchy nose, watery eyes, and sneezing. He also had headaches and frequent breathing difficulty. There was nasal obstruction but no septal deviation. The examiner diagnosed allergic rhinitis. The examiner opined that the Veteran was diagnosed with a viral syndrome in service and there is no evidence that this developed into a chronic condition. A viral syndrome is a temporary, self-limiting condition without residuals. There was no evidence of the Veteran being diagnosed or treated for allergic rhinitis, nasal congestion, or any other sinus or breathing condition during his military service. The Veteran was reexamined in January 2012. At that time, the examiner opined that the Veteran did not have allergic rhinitis, but rather he had a deviated septum. At that time, the Veteran reported that he was hit several times in the nose during service and as a result he developed a deviated septum, although at his prior examination he denied trauma to the nose. He reported episodic flare ups of congestion with inability to breathe through his nostril. He never sought treatment for this; rather, he used over the counter decongestants. Upon examination, less than 50 percent of the nasal passage was obstructed due to septal deviation. The examiner noted that after review of the service treatment records, including the dental health questionnaire upon which the Veteran indicated that he had sinus problems, there was no evidence that the Veteran was diagnosed or treated for allergic rhinitis in service. After review of his VA treatment records there was no evidence that he currently had allergic rhinitis. His current outpatient medications did not include any treatments for allergic rhinitis. The Veteran did have a deviated septum that was not previously diagnosed or treated and this was most likely the cause of his current nasal congestion. A supplementary medical opinion was obtained in January 2013 because, while the prior examiner diagnosed a deviated septum, he did not explain whether that condition was related to the Veteran's service. The examiner who provided the January 2013 opinion noted that the prior examiner documented the Veteran's report that he had several instances of facial trauma while in military service with a resultant deviated septum and subsequent breathing difficulty through his nostrils. The examiner noted that while the Veteran reported sinus problems in service on two occasions, the service treatment records were silent with respect to any clinical visits due to a history of facial trauma, fighting, etcetera which might have resulted in a traumatic deviated septum nor is there a physical examination which could be interpreted as documenting a deviated nasal septum. On the prior examination, the examiner noted that septal deviation obstructing more than 50 percent of the nasal passage was not present. A sleep clinic evaluation for sleep apnea in March 2012 made no mention of a deviated septum. Review of VA medical records reveal no prescriptions for decongestants, antihistamines, or nasal steroids for breathing problems. Breathing difficulty referable to the sinuses or nasal passages was not mentioned by the Veteran at his sleep clinic evaluation or at any other visit to primary care. Therefore, it is less likely than not that the Veteran's claimed condition of deviated nasal septum is related to service. There is no evidence in the service treatment record suggesting the diagnosis of clinically significant deviated nasal septum or facial trauma that might have resulted in a deviated nasal septum. This case demonstrates that classification of a disease or injury is less than a perfect science. During the appeal period, there have been numerous diagnoses. However, the controlling law does not use the term diagnosis. 38 U.S.C.A. § 1110. In fact, a notation of a diagnosis is just one fact to be considered. See 38 C.F.R. § 3.303(b) (which is not applicable in this case). Rather, there must be proof of disease or injury and residual disability (impairment). Here, there have been in-service and post-service complaints. The appellant has also attempted to self diagnose his status. However, despite the diagnoses, there has been a remarkable lack of objective evidence to support the diagnosis of allergic rhinitis or sinusitis. In fact, the June 2012 examiner established why the prior diagnoses, too include the Veteran's self diagnosis, were not supported or correct. We conclude that the June 2012 VA examination was the most detailed, reasoned, probative and credible. In essence, the most probative evidence establishes that the Veteran does not have a sinus disability or allergic rhinitis. Here, the preponderance of the evidence is against the claim. In reaching this determination, the Board has considered the lay evidence. However, the more recent medical evidence is more probative and credible. However, that does not end the analysis. The recent examiner determined that the appellant did have a deviated septum. Furthermore, there is no proof that his deviated septum is a congenital defect. Our review reflects on-going breathing complaints since service and we find it more likely that the in-service and post-service complaints are related to the same cause, the deviated septum. There is doubt as to the origin of the only confirmed disability and such doubt is resolved in favor of the appellant. ORDER Service connection for a deviated septum is granted. Service connection for a sinus disability and allergic rhinitis is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs