Citation Nr: 1320661 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-35 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to August 1976. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Winston-Salem, North Carolina, which, in pertinent part, denied the Veteran's claim. The Board has previously considered this claim. In November 2012, the Board remanded the claim in order to afford the Veteran another VA compensation and pension examination. The examination took place in December 2012, and in a February 2013 Supplemental Statement of the Case ("SSOC"), the Veteran's claim was denied. The Board is satisfied that the development requested by its remand has now been satisfactorily completed and there has been substantial compliance. See Stegall v. West, 11 Vet. App. 268 (1998) (remand not required under Stegall where Board's remand instructions were substantially complied with). The claims folder has been returned to the Board for further appellate proceedings. The Veteran's representative has raised the following issues in his May 2013 Written Brief Presentation: entitlement to service connection for bilateral lower radiculopathy; service connection for Parkinson's disease; reopened claim for service connection for a right knee disorder; service connection for an acquired psychiatric disorder; entitlement to special monthly compensation on account of being housebound or on the need for regular aid and attendance; entitlement to a total rating based on individual unemployability due to service-connected disabilities; and whether there was clear and unmistakable error in a May 2011 rating decision that granted service connection for coronary artery disease, status post myocardial infarction, status post angioplasty with stents and assigned a 10 percent disability evaluation for such disability. These matters have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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). FINDING OF FACT The Veteran is not shown by the competent and probative evidence of record to have a current diagnosis of sinusitis, nor has he been diagnosed with sinusitis at any time during the period on appeal. CONCLUSION OF LAW Sinusitis was neither incurred in, nor aggravated by, active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), however, the requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim, was eliminated by the VA Secretary (the "Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, VA essentially satisfied the notification requirements of the VCAA by means of pre-adjudication letter, dated November 2008. This letter afforded the Veteran notice of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess by informing the Veteran of how VA assigns the disability rating and effective date elements of a claim. The claim was subsequently readjudicated in an August 2010 Statement of the Case, which provided the Veteran with the pertinent VA laws, regulations and rating schedule provisions. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's available service and post-service VA and private treatment records, as well as VA examination reports dated November 2009 and December 2012. Additionally, the claims file contains the Veteran's personal statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the November 2009 and December 2012 examination reports shows that the examiners reviewed the pertinent evidence of record, elicited from the Veteran his history of symptomatology and treatment, performed comprehensive examinations, and provided the examination results. Additionally, while the Board found the November 2009 examination inadequate for rating purposes because it was unclear whether the previous examiner had taken the Veteran's personal statements concerning his medical history into account, the December 2012 examiner specifically noted that the Veteran reported having had a history of sinus problems during service. Accordingly, the Board finds the VA examination reports, when taken as a whole, to be adequate upon which to base a decision in this case. The Board also concludes that reasonable efforts to develop evidence for the record have been made. While the claims folder contains most of the Veteran's service treatment records, the Veteran submitted a signed form authorizing VA to obtain treatment records for unspecified medical treatment from Womack Army Medical Center from 1970 to the present. However, the only records received were those dated for two days in October 2006, in which there was no reference to a sinus condition. Under such circumstances, the Court has held that VA has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule, which states that when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the Court has also held that there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control, which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). There is also a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment records. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas, supra. In addition, the Board is under a duty to advise the claimant to submit other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). The Court has held in all cases, however, that a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting his or her assertions. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In this case, the aforementioned November 2008 letter advised the Veteran that, in order to prevail on the issue of service connection on the merits, there must be evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran was further advised that lay evidence can, in some circumstances, be competent and sufficient to establish a diagnosis of a condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, he was advised of alternate evidence, other than service treatment records, that he could submit to substantiate his claims. See Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). An August 2010 memorandum associated with the claims folder documented the effects made to obtain the missing records and concluded that all obtainable evidence identified by the Veteran relative to his claim had been obtained and associated with the claims file, all procedures to obtain records had been correctly followed and exhausted, and that any further attempts would be futile. Accordingly, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. 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 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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 Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress or as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2012). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). The Veteran contends that he developed sinusitis during active duty service and that the condition has continued ever since separation from service. As an initial matter, a review of the Veteran's August 1956 service enlistment examination revealed normal findings for the sinuses. On the accompanying medical history report, the Veteran denied having or having had sinusitis, hay fever or frequent colds. A June 1958 reenlistment examination identified a moderate, right septal spur, but there were still no clinical findings of a sinus disorder; a November 1961 annual examination was also negative. During the Veteran's April 1964 service reenlistment examination, the clinical evaluation was again negative for a sinus disorder, however, on the medical history report, the Veteran indicated that he then had or had previously had sinusitis. In January 1969, the Veteran was treated for an upper respiratory infection. However, three months later, during his April 1969 annual medical examination, he was again found to be negative for a sinus disorder. Again, he noted a current or previous sinus condition on the medical history report, and the examining physician commented that the Veteran had "mild chronic sinusitis." During the Veteran's April 1976 service retirement examination, the clinical evaluation again found his sinuses to be within normal limits. While he again noted on the medical history report that he had or had previously had sinusitis, in his statement of present health and current medications, the Veteran wrote that he was in good health and was not on any medications. Following service, there is no probative evidence that the Veteran sought treatment for, or was diagnosed with a sinus disorder until July 2003, when he underwent an MRI of the brain for complaints of an unsteady gait, falls and syncope. At that time, the MRI revealed a mild ethmoid sinus inflammatory change. Over a year later, in November 2004, he was seen by his private physician for complaints of sore throat, cough and chills. The diagnosis was an upper respiratory infection/bronchitis. In March 2005, the Veteran returned to his doctor for evaluation of upper respiratory infection symptoms. The diagnoses were upper respiratory tract infection, maxillary sinus tenderness and sinusitis. He was given breathing treatment, started on a brief medication regimen and was advised to follow up if symptoms worsened or did not improve. Three days later, the Veteran returned to his physician, at which time, he stated that he was "100 percent better." The clinician noted that his upper respiratory tract infection had improved and resolved. In November 2009, the Veteran was afforded a VA compensation and pension examination, at which time, he reported having a chronic drippy/runny nose. Although he reported that the symptoms had been present for several years, he said that he was not taking any medication and had not brought his symptoms to the attention of his providers because he was "simply living with it." Upon examination, the nasal passages were clear without evidence of polyps, bacterial rhinitis, obstruction, tissue loss or sinusitis. The diagnosis was perennial rhinitis; the examiner opined that the condition was not related to an isolated episode of sinus infection during service. In this respect, he noted that the Veteran had not had any interim sinus problems until about two years earlier, and now had a chronic rhinitis condition. As noted above, in November 2012, the Veteran's claim was remanded by the Board for additional development, including another VA examination, which took place in December 2012. At that time, the Veteran reported that he was taking no medications for a sinus disorder, had only sought treatment a couple of times, and the last time he had been on antibiotics for a sinus infections was 1.5 years earlier. He did, however, report constant, clear nasal drainage. The clinician noted that the Veteran was already service-connected for a deviated septum and noted that x-rays of the sinuses showed no evidence of fluid layering. The diagnosis was non-allergic rhinitis. The examiner noted that the Veteran did not have sinusitis at this time. He noted that the Veteran did have sinusitis problems in the military and after, but not now. He did find that the Veteran's current rhinitis was most likely related to the septal deviation that the Veteran had in service and currently. The Board notes that service connection for non-allergic rhinitis was granted in a February 2013 rating decision. Based on a review of the complete evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sinusitis. In this respect, as previously discussed, in order to establish direct service connection, there must be competent medical evidence of a current disability, a disease or injury in service, and competent medical evidence linking the claimed in-service disease or injury to the current disability. In the instant case, two VA examiners reviewed the evidence of record and examined the Veteran. While the first examiner concluded that it was less likely than not that the Veteran's rhinitis was related to any isolated occurrence of sinus infection he had experienced during service, the second examiner also diagnosed him with rhinitis and similarly found no evidence of sinusitis. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, however, the competent and probative evidence of record indicates that at no time during the current appeal (which began in November 2008, when the Veteran's application for service connection was received) has the Veteran been diagnosed with sinusitis. Based on this evidentiary posture, service connection cannot be awarded. In addition to the medical evidence, the Board has considered the Veteran's lay reports of intermittent symptoms since service. In this regard, the Board recognizes that the Veteran is competent to report experiencing such symptoms as a runny nose, and there is no reason to doubt his credibility in that regard. See Buchanan v. Nicholson, 451 F.3d 1331 (2006) (holding that the Board had erred by finding that a claimant's report of in-service psychiatric symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time). Thus, his lay reports are entitled to some probative weight. However, even where a veteran asserts that he has had continuous symptoms of a disability since service, the Court has held that generally medical evidence is ultimately required to establish "a nexus between the continuous symptomatology and the current claimed condition...." See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). Although the Veteran is competent to report what comes to him through his senses, there has been no evidence presented that he has the medical knowledge or training that would permit him to diagnose a specific disorder of the paranasal sinuses. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, although the Board acknowledges the Veteran's belief that he has had sinusitis ever since military service, his statements in this regard are not deemed competent. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sinusitis. In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for sinusitis is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs