Citation Nr: 1323031	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  05-06 636A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for chronic nasal allergies, to include sinusitis and/or rhinitis.


REPRESENTATION

Appellant represented by:	Timothy T. Kidd, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. W. Loeb

INTRODUCTION

The Veteran served on active duty from June 1974 to June 1978, from May 2001 to March 2002, and from June 2005 to June 2007.  He also had various periods of active duty for training, including from January 21, 1995 to February 3, 1995 and from July 7, 1999 to September 21, 1999, as well as periods of inactive duty training.

This case originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO).  In April 2012, the Board denied entitlement to service connection for a pulmonary disorder, to include bronchitis, and remanded the issues of entitlement to service connection for a low back disability, hearing loss in the right ear, and chronic nasal allergies, to include sinusitis and/or rhinitis, to the RO for additional clarification from the examiners who evaluated the Veteran in November 2010 and January 2011.  Additional opinions were obtained later in 2012.  Based on these subsequent VA opinions, an August 2012 rating decision granted entitlement to service connection for chronic lumbar muscle sprain with minimal disc disease and for bilateral hearing loss.  Consequently, the issues of entitlement to service connection for a low back disability and for hearing loss in the right ear are no longer part of the Veteran's appeal.  

Pursuant to the April 2012 Board remand, additional treatment records were subsequently added to the record, and a VA opinion was obtained in June 2012.  As a VA nasal opinion has been added to the claims files in response to the Board remand, there has been substantial compliance with the April 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). 

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2009, and a transcript of the hearing is of record.


FINDING OF FACT

The Veteran does not have chronic nasal allergies, to include sinusitis and/or rhinitis, that are causally related to his military service.


CONCLUSION OF LAW

Chronic nasal allergies, to include sinusitis and/or rhinitis, were not incurred or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).  The regulations implementing VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Notice to the Veteran was not sent in this case until later in the claims process.  However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are, as in this case, not prejudicial to the claimant.  Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121.  A letter was sent to the Veteran in June 2008 that informed him of the requirements needed to establish entitlement to service connection.  The Veteran was also informed in this letter about disability ratings and effective dates if his service connection claim was to be granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The matter was readjudicated thereafter in an October 2008 supplemental statement of the case.

In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility.  No additional private evidence was subsequently added to the claims files after the letter.  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  A VA evaluation with nexus opinion was most recently obtained in June 2012.  

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 June 2012 VA opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims files and physical examination findings.  The opinion considered all of the pertinent evidence of record, to include the Veteran's medical records and examination findings, and provided a rationale for the opinion stated.  There is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  


The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his June 2009 videoconference hearing.  The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts 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.  The Veteran was assisted at the hearing by his accredited representative from Disabled American Veterans.  The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his complaints during service.  They also asked questions to ascertain the existence of any outstanding potential available evidence to substantiate the claim.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Analysis of the Claim

The Veteran seeks service connection for chronic nasal allergies, to include sinusitis and/or rhinitis.  Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).  

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, 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.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);
(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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence 
submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The Veteran's service treatment reports reveal that there were no pertinent complaints or findings on medical history and physical examination reports dated in April 1974 and April 1975.  Nasal or sinus drainage was noted in February 1976, March 1977, and February 1978.  Nasal congestion was noted in November 1976; and the impression was head cold (sinusitis?).  The Veteran's nose and sinuses were normal on medical evaluation in February 1978.  The Veteran complained of hay fever on multiple medical history and treatment reports beginning in February 1981, including on his June 2005 medical history report at the beginning of his final period of active duty.  Physical examinations from February 1981 through August 1997 were normal, except for a finding in December 1988 of congestion with head cold.  

Allergic rhinitis was diagnosed in December 2000, January 2001, and March 2001.  There was sinus drainage in May 2001 and sinus congestion in January 2002.  A medical history report for March 2002 does not show any pertinent complaints; the Veteran's nose and sinuses were normal on medical examination in March 2002.  It was noted in March 2006 that the Veteran was given medication for seasonal/environmental allergies.  Allergic rhinitis was diagnosed in March 2006, June 2006, and February 2007; this was reported in June 2006 to have been exacerbated on deployment, now controlled.  It was noted on medical evaluation in February 2007 that he had boggy nasal passages and rhinorrhea.  

The Veteran complained on VA evaluation in April 2007 of multiple allergies, year round, with intermittent post nasal drainage of greenish phlegm.  Physical examination revealed slightly congested inferior turbinates, an apparent mucus nasal polyp in the left airway, and slightly tender maxillary sinuses.  The diagnoses were multiple allergies, untreated; and rhinitis, without nasal polyp.  X-rays of the sinuses were considered to be normal.  

On VA evaluation in December 2007, which included review of the claims files, the Veteran indicated that his sinus/nasal condition began in the 1980's.  He noted that he was on allergy medication while in Saudi Arabia.  His current symptoms were nasal congestion, excess nasal mucous, sneezing, and purulent nasal discharge.  The diagnoses were allergic rhinitis and nasal polyp.

The Veteran testified at his videoconference hearing in June 2009 that his nasal problems began prior to his deployment to Saudi Arabia, that he received treatment for nasal problems in Saudi Arabia, and that he continues to have nasal problems.

VA treatment reports for February 2009 reveal a notation of allergies.

A VA evaluation, which included review of the claims files, was conducted in November 2010.  The diagnoses were rhinitis and sinusitis, currently on ipatroptium therapy, which was noted to be a nasal spray.  The examiner concluded that it was resorting to mere speculation to opine on whether the Veteran's claimed nasal and sinus condition was a preexisting condition that was permanently aggravated by injury/illness incurred while on active duty.  

In response to the April 2012 Board remand, the examiner who evaluated the Veteran's nasal problems in November 2010 opined that it was less likely as not that the Veteran's current nasal allergies, to include sinusitis/ rhinitis, were related to injury/illness incurred while on active duty, meaning the symptomatology experienced from June 1974 to June 1987, because a sinus CT as recently as 2005 did not show any diagnostic markers for long-standing, protracted sinus disease that could have stemmed from allergies from over 30 years earlier.  In other words, if the Veteran had had an over 30 year old sinus condition affecting allergies, he would have had polyps, or mucous retention cysts, or boggy sinuses and/or turbinates on CT scan, which were not shown.  For medical references for his opinions, which also included opinions on other disabilities, the examiner cited Cecil's and Harrison's Textbook of Medicine; texts in otorhinolaryngology, such as Deweese and Saunders; and texts in pulmonology, such as Baum's Textbook of Pulmonary Diseases.  Online references were also noted, including an NIH sponsored site of PUB MED with generalized information about allergies.

The above medical evidence does not include objective evidence showing that the Veteran currently has chronic nasal allergies, to include sinusitis and/or rhinitis, related to service.  Although sinus drainage was noted in service, medical examination in February 1978, near the end of his initial period of service, was normal.  The Veteran indicated on examination in December 2007 that his sinus/nasal condition began in the 1980's.  Moreover, the only nexus opinion on file, in June 2012, which is based on a review of the medical evidence and examination of the Veteran, is against the claim.  This opinion includes a rationale and cites to medical texts.  Consequently, service connection for chronic nasal allergies, to include sinusitis and/or rhinitis, is not warranted.

The Board acknowledges that service connection may also be established on the basis of continuity of symptomatology.  38 C.F.R. § 3.303(b).  However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Chronic nasal allergies, to include sinusitis and rhinitis are not recognized as a chronic disability under 38 C.F.R. § 3.309(a).  However, a veteran's lay statements may be sufficient evidence in any claim for service connection.  38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."(emphasis added)); see38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence").  A lay person is competent to provide evidence on the occurrence of observable symptoms during and following service.  In the present case, the Veteran has asserted, including at his videoconference hearing, that he has experienced nasal symptomatology since service.  However, as noted above in the June 2012 opinion, the VA examiner specifically concluded that the evidence did not support a finding that the Veteran's nasal complaints from June 1974 to June 1978 were related to the rhinitis and sinusitis diagnosed on VA evaluation in November 2010 because there was a lack of relevant findings showing that the current conditions are related to service symptoms.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran).  The Veteran has not been shown to have had the necessary medical training to diagnose a complex medical condition such as chronic nasal allergies, to include sinusitis and/or rhinitis, from observed nasal symptoms.  As such, the Board finds the VA examiner's opinion to be of greater probative value.

The hearing testimony and lay statements from the Veteran have been taken into consideration in this decision.  The Veteran is competent to report his subjective nasal symptoms over the years, and he is considered credible.  However, the weight of the evidence as a whole, especially the June 2012 VA opinion, which is based on a review of the claims files and examination of the Veteran, and which contains a rationale and cites to medical texts by a person with the relevant education and training, is against the claim.  There is no medical opinion on file in support of the claim.

Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connection claim denied above, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for chronic nasal allergies, to include sinusitis and/or rhinitis, is denied.


____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs