Citation Nr: 1323623	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  10-19 219	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for a sinus disability.  


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel


INTRODUCTION

The Veteran served in the National Guard with the following documented periods of service:  January to June 2002 for initial active duty training (IADT); December 2002 for 2 days of active duty; December 2002 to January 2004 for active duty; and August 2004 to January 2005 for active duty.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which in part, denied service connection for a sinus condition.  

The issue was remanded by the Board in January 2013 for further development.  


FINDING OF FACT

There is no competent evidence relating acute episodic sinus complaints to service and the evidence most strongly supports a diagnosis of an allergic, rather than sinus, disorder.


CONCLUSION OF LAW

The criteria for service connection for a sinus disability have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

A June 2008 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records, VA medical treatment records, and VA examination reports have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

A VA examination was provided in October 2008; significantly, in that examination, the VA examiner stated that an opinion would require speculation, and if this were the case the examination report would be deemed inadequate.  See Bloom v. West, 12 Vet. App. 185, 187 (1999).  However, despite the examiner's claim that he could not make an opinion without resorting to speculation, he is shown to provide a medical opinion which is supported and explained by a rationale, namely, given the short time in Iraq, combined with the Veteran's previous history of allergies and employment as a firefighter, it was more likely that these circumstances contributed to his condition and less likely than not that his condition was related to service.  Thus, the VA examination is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints.  It allows the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Additionally, the Board ordered that a new VA examination be afforded to the Veteran, if he provided additional information once requested of him by the AMC.  The Veteran did not respond in any way to the AMC's request for information.  Corresponding to VA's duty to assist him is a duty on his part to cooperate with VA in developing a claim.  38 C.F.R. § 3.655; see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street").  The Board finds the duty to assist has been met.  

This matter was most recently before the Board in January 2013, when the case was remanded to the VA RO (via the Appeals Management Center (AMC), in Washington, D.C.).  The purpose of this remand was to request that the Veteran confirm his periods of National Guard Service, obtain additional private and VA records, and confirm the Veteran's address.  As noted above, the remand also stated that, should additional records be added to the claims file, only then should be afforded a new VA examination.  

In January 2013 correspondence, the Veteran was asked to provide treatment records or to fill out an VA-Form 21-4142 authorization form so that such records could be obtained.  The Veteran was also asked to confirm the dates of his National Guard Service.  The Veteran did not respond.  Additional records were not found by the AMC, and Virtual VA does not reflect additional treatment.  Moreover, The Veterans Appeals Control and Locator System was reviewed and updated in April 2013, and the address in that system is consistent with the address used in letters sent to him.

All of the actions previously sought by the Board through its prior development request have been substantially completed as directed, and it is of note that the Veteran does not contend otherwise.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).  A supplemental statement of the case (SSOC) was issued in March 2013 which confirmed the previous denial.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

II.  Service Connection

Service connection will be granted if it is shown that a veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  

Active military service" includes periods of active duty, periods of ACDUTRA in which a service member was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which a person was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 C.F.R. § 3.6.

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 lay evidence is 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(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).


The chronicity provisions under 38 C.F.R. § 3.303(b)  do not apply, because the claimed disorders are not among the chronic diseases enumerated in the regulation.  C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102  (2012). 

To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Factual Background and Analysis

The Veteran claims entitlement to service connection for a sinus disability.  He specifically claims that he developed a sinus disability during his last period of active duty service from August 2004 to January 2005.  

In December 2004, a post-deployment review, interview, and assessment was conducted in conjunction with the Veteran's return and separation after his last active duty deployment.  At that time the he reported a history of rhinoplasty in June 2004 with continued nasal congestion since that time.  The timing of this surgery places it during the period of time between his December 2002 to January 2004 period of active duty and his August 2004 to January 2005 period of active duty.

On a service department medical health questionnaire variously dated June 2005 and December 2005, the Veteran reported being prescribed sinus medication.  

In an October 2008 VA examination, the Veteran reported he had undergone septoplasty in May 2004 and/or a rhinoplasty in June 2004; a nasal cauterization in 2006; and a nasal or sinus surgery in February 2008.  It was noted that the Veteran was employed as a fire fighter and forestry technician.  During his examination, the Veteran stated that he experienced seasonal allergies prior to his service in Iraq but felt that his symptoms became worse thereafter.  There was no injury during deployment.  The Veteran reported that allergy testing conducted in 2007 confirmed an allergy to ragweed and cats.  

The examiner provided a diagnosis of recurrent rhinitis/allergic rhinitis and stated that a problem associated with the diagnosis was a sinus condition.  

The Veteran's VA examiner stated that, given the short time in Iraq and, combined with the Veteran's previous history of allergies and employment as a firefighter, it was more likely that these circumstances contributed to his condition and less likely than not that his condition was related to service.  

To the extent the Veteran asserts that he has a sinus disability, the assertion constitutes the Veteran's opinion, but such an opinion would require specialized education, training, or experience, which is not shown.

The only competent medical evidence is against the Veteran's claim that his claimed sinus disability is related in any way to service.  Moreover, not only is there a negative nexus opinion pertaining to a diagnosis of his claimed sinus condition, but the VA examiner stated that, it was more likely that his symptoms stemmed from allergies as opposed to a compensable disease.  

Allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals.  See 38 C.F.R. § 3.380.  The competent medical evidence demonstrates that it is more likely that the Veteran has an acute allergic disability as opposed to a chronic sinus disability as the Veteran asserts.  The competent evidence does not demonstrate an in-service incurrence or aggravation of a chronic disorder.  

The preponderance of the evidence is against the claim; there is no doubt to be resolved.  Service connection for a sinus disability is not warranted.


ORDER

Entitlement to service connection for a sinus disability is denied.  




____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs