Citation Nr: 1320871 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-43 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for rhinitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from April 1988 to April 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2008 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction of the Veteran's claims file has been transferred to the VA RO in Detroit, Michigan. The Veteran testified at a Board hearing in Washington, DC, which was chaired by the undersigned at the Nashville RO in February 2011. A transcript of the hearing has been associated with the Veteran's VA claims folder. In May 2011 and September 2012, the Board remanded the claims for further development. 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). FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has or has had sinusitis during the appellate term. 2. The weight of the evidence is against a finding that the Veteran's rhinitis is related to active service. CONCLUSIONS OF LAW 1. Sinusitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Rhinitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in May, July, and August 2007, May 2011, and April and October 2012 of the information and evidence needed to substantiate and complete a claim of entitlement to service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA provided notice of how disability evaluations and effective dates are assigned in May 2007. These claims were most recently readjudicated in a supplemental statement of the case issued in May 2013. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims being adjudicated to the extent possible, and, as warranted by law, afforded a VA examination. The RO obtained the Veteran's service and VA treatment records, and afforded him VA examinations for his two disorders on appeal, to include pursuant to the two Board remands. The RO also obtained private treatment records. The Board remanded the claim again in September 2012 because a May 2012 VA examiner opined that he could not provide an etiological opinion without resorting to mere speculation based on the lack of medical evidence of rhinitis or allergy testing in service and immediately post service. The report of the October 2012 VA examination reflects that the examiner reviewed the Veteran's claims file and his past medical history, recorded his current complaints, conducted appropriate physical examinations and interview, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Pursuant to the remands, the October 2012 VA examiner addressed whether the appellant's rhinitis is related to active service. The Board therefore concludes that these examination reports in combination are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board also observes that the Veteran was also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Pursuant to the Board's prior remands, VA readjudicated the claims. In light of that and the discussions of the post-remand examinations above, VA complied with the directives of the May 2011 and September 2012 remands. Stegall v. West, 11 Vet. App. 268 (1998). In short, there is no error or issue that precludes the Board from addressing the merits of this appeal. Claims for Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C.A. §§ 1110, 1131. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis The Veteran asserts that he developed a sinus condition, claimed as allergies, during his service in California. Specifically, the Veteran testified at the February 2011 VA hearing that, while he had no signs or symptoms of allergies while living in Michigan prior to his enlistment, he developed such while stationed in California during his service. The Veteran has asserted that this symptomatology has continued since his service and his return to Michigan. See the February 2011 VA hearing transcript at pages 17 and 18. While the Veteran's service treatment records and post-service outpatient treatment records fail to note such symptomatology, the Board observes that the Veteran was stationed in California during his service, and he is certainly competent to report such, as he has first-hand knowledge. The Board finds him credible. Therefore, the Board finds that Davidson element (2) is satisfied as to both claims. Turning first to sinusitis, the Board has reviewed all of the evidence of record, to include the VA, private, and service treatment records and VA examination reports. These records do not show that the Veteran currently has, or has had sinusitis since he filed his claim in March 2007. Both the May 2011 and November 2012 VA examiners did not diagnose sinusitis. Although the appellant reported to the May 2011 VA examiner that he had had episodes of acute sinusitis for which he received antibiotic treatment, there is no medical evidence showing a diagnosis of sinusitis, much less antibiotic treatment of sinusitis. 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). The Board notes that 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, the existence of sinusitis falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, the Veteran is not reporting a contemporaneous or later diagnosis of sinusitis since there is no medical evidence of a diagnosis of sinusitis since he filed his claim in March 2007. As for continuity of respiratory symptomatology, nasal congestion and rhinorhea (see May 2011 VA examination report, page 1), the Veteran is competent to report this symptomatology and as noted in the May 2011 Board remand on page 11, the Board finds him credible with regard to experiencing respiratory symptomatology. That said, supporting medical evidence is required because a claim based on continuity of symptomatology can only be granted if there must be competent medical evidence of a current disorder for which there is continuity of symptomatology. As noted above, the preponderance of the competent medical evidence preponderates against finding that the Veteran has or has had sinusitis. Moreover, nasal congestion and rhinorhea, however, are symptoms, not a diagnosed disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In short, the Board finds that Davidson element (1), current disability, is not satisfied as to the claim of entitlement to service connection for sinusitis. As for to the rhinitis, the May 2012 VA examiner unequivocally diagnosed rhinitis based on the Veteran's reporting of symptomatology. Thus, the Board finds that Davidson element (1), current disability, is satisfied as to the claim of entitlement to service connection for rhinitis. Thus, the Board will address whether there is a nexus between the Veteran's current rhinitis and his military service. In so doing, the Board has reviewed all of the evidence of record, to include the VA, private, and service treatment records and VA examination reports. After considering all the evidence of record, the Board finds the preponderance of the most probative and competent evidence shows that there is no nexus between the current rhinitis and service. As noted above, a May 2012 VA examiner opined that he could not provide an etiological opinion without resorting to mere speculation based on the lack of medical evidence of rhinitis or allergy testing in service and immediately post service. The November 2012 VA examiner in a February 2013 addendum, however, did render a medical opinion without resorting to mere speculation. The examiner opined that it was less likely than not that the rhinitis was incurred in or caused by an in-service injury, event, or illness. The examiner's rationale included that rhinitis was not noted on the entrance examination or the separation examination. In fact, the Veteran denied any history of hay fever at the separation examination. The examiner's rationale was also that there was no evidence of rhinitis on the current examination. In the examination report, the appellant reported that he self-medicated his rhinitis with Sudafed and no other medical medication. There is no evidence of treatment by a medical professional. The physical examination revealed that there were no current symptoms and that there was normal nasal mucosal lining and structure on anterior rhinoscopy. There was non-tender facial structure, and the throat was clear and normal as well as the conjunctiva. Simply put, there is no competent medical evidence indicating that the rhinitis is related to active service. As for continuity of respiratory symptomatology, nasal congestion and rhinorhea (see May 2011 VA examination report, page 1), the Veteran is competent to report this symptomatology and as noted in the May 2011 Board remand on page 11, the Board finds him credible with regard to experiencing respiratory symptomatology. That said, supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-21 (1999) (there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). In this case, the Board gives the greater weight to the May 2012 VA examiner's opinion who in essence rejected this reporting of continuity of respiratory symptomatology by opining that the rhinitis was not related to service. The Veteran is claiming that his respiratory symptomatology is evidence that his current rhinitis is related to active service, the Board notes that 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 issues in this case, a relationship between rhinitis and active service falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). The Board concludes that the preponderance of the evidence is against granting service connection for sinusitis and rhinitis. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for rhinitis is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs