Citation Nr: 1322784 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 06-37 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In September 2007, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals a March 2006 letter notifying the Veteran of the type of information and evidence was needed to establish a disability rating and effective date. Likewise, such contains VA treatment records relevant to the Veteran's claim for sinusitis that were not considered by the agency of original jurisdiction (AOJ); however, in October 2012, the Veteran via his representative waived AOJ consideration of such records. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such evidence. FINDING OF FACT Sinusitis is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW Sinusitis was not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2005 letter, sent prior to the initial unfavorable decision issued in April 2006, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Moreover, a March 2006 letter, also sent prior to the April 2006 rating decision, informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date in accordance with Dingess/Hartman, supra. Accordingly, VA has satisfied its duty to notify under the VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records (STRs) and post-service reports of VA and private treatment. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in July 2002, June 2009, and March 2011 with an addendum opinion in January 2012, and an opinion was obtained from a medical expert with the Veterans Health Administration (VHA) in April 2013. As the July 2002, June 2009, and March 2011 VA examiners did not find evidence of sinusitis, did not offer an etiological opinion, and/or based an opinion on an inaccurate factual premise, the April 2013 VHA expert offered an etiological opinion that the Board finds is adequate to decide the issue. The opinion considered the full record, to include the Veteran's service treatment records, lay statements, and current medical condition. Such also provided a discussion regarding the definition of sinusitis and a specific recitation of the Veteran's medical history. The ultimate opinion proffered by the expert considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on, and citing to, the records reviewed. Moreover, the expert offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him the development of the claim. 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, 16 Vet. App. 183 (2002). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Inasmuch as the Veteran is not claiming entitlement to service connection for a disease recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the instant case, the Veteran alleges that his current sinusitis is related to his in-service treatment for such disorder. Therefore, he claims that service connection is warranted. With respect to a current diagnosis, a post-service October 2006 private medical treatment record shows a diagnosis of chronic rhinosinusitis. Additionally, a private computed tomography (CT) scan report of the sinuses dated in October 2008 diagnosed the Veteran with chronic sinus disease. Moreover, recent VA treatment records dated in March 2012 reflect a diagnosis of chronic sinusitis. In this regard, the Board is cognizant that there has been some question as to whether the Veteran does indeed have a current diagnosis of sinusitis. In McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court held that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. Therefore, the Board resolves all doubt in favor of the Veteran and find, based on the aforementioned treatment records dated during the course of the appeal, that he has a current diagnosis of sinusitis. The Veteran's service treatment records document treatment for upper respiratory infections (URIs) in November 1981, December 1981, and August 1985. In December 1985, the Veteran was seen for sinus congestion. In April 1989, he was treated and diagnosed with pharyngitis. The Veteran was provided a routine examination in May 1990, which was normal. However, on his May 1990 Report of Medical History, the Veteran checked the box to indicate that he was currently experiencing sinusitis. In December 1992, the Veteran was treated for a URI. In January 1993, he sought emergency treatment for possible sinusitis, and in February 1993, the Veteran was diagnosed with bilateral maxillary sinusitis. As the Veteran has a current diagnosis of sinusitis and has documented in-service treatment for sinusitis, the determinative issue before the Board is whether such current sinusitis is related to his military service, to include such in-service treatment. In July 2002, the Veteran underwent a VA examination. The examiner found no evidence of sinusitis; thus he stated that no relationship could be established to the sinus condition treated in 1990. The Veteran was afforded another VA examination in June 2009. The VA examiner found that the Veteran's nasal examination was normal, and did not diagnose sinusitis. However, the examiner then opined that the Veteran's sinus disorder was not caused by his service duties. In arriving at such opinion, the examiner indicated that, in pertinent part, there was a lack of evidence of sinus disease in the STRs. However, at described above, the STRs contain numerous complaints related to the Veteran's sinusitis during his active military service. Thus, the Board found the June 2009 VA medical opinion to be inadequate, and remanded for a new VA medical opinion. Upon remand, the Veteran was afforded another VA examination in March 2011. Following a physical examination and X-rays of the Veteran's sinuses, the VA examiner found no evidence of sinusitis. As such, he did not provide a medical opinion. In January 2012, a VA addendum medical opinion was obtained. The VA examiner reviewed the claims file and provided a medical opinion regarding the Veteran's allergic rhinitis. However, the examiner did not provide a medical opinion regarding the Veteran's sinusitis because the examiner found that the correct diagnosis was allergic rhinitis and not sinusitis. The Board parenthetically notes that service connection for allergic rhinitis has already been granted. Based on the aforementioned deficiencies in the VA examination and opinions obtained, the Board referred the issue to a VHA medical expert in December 2012. In April 2013, an expert opinion was rendered. In April 2013, the VHA examiner provided detailed information on the definition of sinusitis, noting that it has come to have a number of varied meanings and is often misused even by physicians. After reciting a detailed summary of the Veteran's medical history, the examiner found that the Veteran had one episode of acute sinusitis during service, which completely resolved in a timely fashion. The examiner then noted the Veteran's frequent clinic visits, and the multiple examples of well detailed complete head and neck exams showing no abnormalities, even when he had sinus complaints. He also noted that there were a number of radiological studies showing normal sinuses, and that there were substantial periods of time where the Veteran sought treatment for medical problems but sinus problems were not noted. The examiner then expressed disagreement that the Veteran has ever had chronic sinusitis, stating that without bony changes to the sinuses, sinus CT scans do not differentiate chronic from acute disease. He further stated that, if the Veteran were suffering from chronic sinusitis, he should be receiving ongoing medical treatment or have been counseled on surgical options. The examiner noted a lack of additional symptoms associated with chronic sinusitis, and ultimately concluded that the record did not support a finding that the Veteran's sinus difficulties were related to service. Here, the Board notes that during the September 2007 hearing, the Veteran stated that he was advised of surgical options by a private ear, nose and throat physician. See Hearing Tr. at 6. However, supporting records from that physician, Dr. Z, make no mention of surgery, instead indicating that the Veteran responded well to a course of antibiotics, decongestants, and other medicines. The April 2013 examiner specifically addressed the treatment records from Dr. Z in his opinion, and found that the examination conducted by him indicated, at most, acute sinusitis, which the patient recovered from within 28 days of treatment. Additionally, the April 2013 VHA examiner did not base his opinion entirely on the lack of medical evidence recommending surgery; indeed, that was one of many factors included in his rationale. The Board accords the April 2013 VHA examiner's significant probative value on the question of etiology, as it reflects an opinion based on a thorough review of the Veteran's medical records and provides a rationale which discusses the Veteran's pertinent medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the examiner offered clear conclusions with supporting data and reasoned medical explanations. Id., Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There is no contrary competent evidence or opinion of record to refute the VA examiner's opinion, and neither the Veteran nor his representative has identified an existing opinion by a competent professional to support the claim. The Board has considered the lay statements of record from the Veteran and his representative, to include statements made at the September 2007 hearing. To the extent the Veteran and his representative have argued that his current sinus disorder is related to service, the Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno at 469-70. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's current sinus disorder and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the Board finds that the etiology of the Veteran's sinus disorder is a complex medical question. Specifically, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. There is no indication that the Veteran or his representative possesses such requisite knowledge, and, therefore, they are not competent to render an opinion on such a complex medical question. Thus, the Board accords these statements regarding the etiology of such disorder little probative value as the Veteran and his representative are not competent to opine on such complex medical questions. Moreover, these sources have offered only conclusory statements regarding the relationship between the Veteran's military service and his current sinus disorder. Waters, supra. In contrast, the April 2013 VHA examiner took into consideration all of the relevant facts in providing an opinion, to include the Veteran's service treatment records, post-service treatment, and the current nature of his sinus disorder. Consequently, the Board accords greater probative weight to the April 2013 VHA examiner's opinion. Based on the foregoing, the claim for service connection for sinusitis must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for sinusitis is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs