Citation Nr: 1323637 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-28 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1977, with additional service in the Army Reserves. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the previously denied claim for service connection for sinusitis. Jurisdiction of this case was subsequently returned to the RO in Montgomery, Alabama. The Veteran was scheduled for this hearing on June 29, 2012; however, he failed to report. As the Veteran did not timely request a postponement or provide good cause for his failure to appear, the hearing request is considered withdrawn. 38 C.F.R. § 20.704 (d) (2012). In August 2012, the Board reopened the claim and remanded the underlying service connection issue for further development. In April 2013, the Board remanded this case for further development. This appeal was processed in part by using the Virtual VA paperless claims processing system. The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal. FINDING OF FACT Sinusitis did not have its clinical onset in service and is not otherwise related to active service. CONCLUSION OF LAW Sinusitis was not incurred in or aggravated in service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under 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. 2011); 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 the degree of disability and the 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 RO. 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, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in August 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's August 2012 remand, VA obtained additional VA treatment records and sought the Veteran's Reserve service records from the Adjutant General of Alabama. In September 2012, the AMC received a response, noting that there were no records for the Veteran at the retired activities branch for the Alabama National Guard. A 10 day letter was sent to the Veteran on January 2013. Thereafter, VA provided the Veteran with a medical examination in September 2012. This examiner reviewed the claims file, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed sinusitis, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. In an April 2013 remand, the Board noted that the VA Adjudication Procedure Manual required VA to make additional attempts to obtain the Veteran's service records, including a request of the Records Management Center (RMC). M21-1MR, Part III, Subpart iii. In compliance with that remand, VA sought the Veteran's service treatment records for his Army Reserve service from July 1977 to August 2005 by submitting a request to the RMC in April 2013. A response later that month indicated that the RMC was unable to locate the requested records. The Appeals Management Center (AMC) then sent the Veteran a May 2013 letter informing him that VA was unable to obtain these records and asking him to submit any such records in his possession. No response was received. In May 2013, the AMC issued a formal finding of the unavailability of these records. As no additional record of in-service sinusitis treatment or complaints was found, reconsideration by the September 2009 VA examiner was not necessary. Thus VA has substantially complied with the August 2012 and April 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in 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). Analysis The Veteran claims service connection for sinusitis due to in-service treatment for this disability and exposure to noxious gas during his military service. Service connection may be established 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. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). To prevail on a claim of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). During the pendency of this appeal, the Veteran has been shown to have sinusitis. See September 2012 VA Examination. Thus, the current disability requirement is met. Sinusitis was not noted during the Veteran's active duty service. Indeed, the Veteran's April 1977 separation examination and November 1976 chest and back pain evaluation both specifically found no sinus abnormality. During his Army Reserve service, the Veteran denied sinusitis on his September 1986 and September 1992 Reports of Medical History (RMH). Conversely, the Veteran reported sinusitis on his September 1988, June 2002, and March 2005 RMHs. On the June 2002 form, the Veteran reported sinus problems when he cut grass. On the March 2005 form, the Veteran noted that he has some seasonal sinusitis, but it had never been diagnosed. The March 2005 examination also found no sinus abnormality. These statements on his periodic RMH do not show that the Veteran developed sinusitis from a disease or injury incurred in or aggravated in line of duty during a period of ACDUTRA. Thus, no in-service occurrence of sinusitis has been shown. Alternately, the Veteran claims service connection for sinusitis due to in-service gas exposure. See, July 2009 VA Form 9. For the purposes of this decision, the Board assumes that the Veteran was exposed to gas. With regard to the third and final requirement for direct service connection of a nexus between the in-service gas exposure and the Veteran's current sinusitis, VA scheduled the Veteran for a September 2012 VA examination. This examiner opined that the Veteran's sinusitis was less likely as not related to his military service, noting the lack of complaints of or treatment for sinusitis in the Veteran's service treatment records, the lack of complaints of or treatment for sinusitis in the private treatment records during the 1990s, and the first mention of sinusitis appearing in the 2000s. Specifically, the examiner noted that if exposure to gas were the etiology of this condition, there would have been a direct effect, which would not have been subtle, and there would not have been a latency period or other delay in onset. Finally, this examiner opined that the most likely cause of the Veteran's sinusitis was adult onset allergies. The Veteran has not submitted any other medical nexus evidence to refute this examiner's opinion. The Board has also considered the Veteran's lay assertions that his sinusitis is related to his gas exposure during military service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, given the passage of time, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Board has also considered whether continuity of symptomatology has been shown. In this case, the medical evidence of record first notes a subjective history of sinusitis symptoms in October 2005, nearly 30 years after service. See July 2009 VA Form 9. Private treatment records dated October 2003 to November 2007 show that the Veteran repeatedly denied a chronic sinusitis problem of rhinitis when asked in conjunction with treatment for other conditions. The Board finds the history provided at the time of treatment to be more probative than the Veteran's statements made in conjunction with his service connection claim. Thus, the weight of the evidence is against a finding of continuity of symptomatology. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to resolve in favor of the appellant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. For the reasons stated, the Board finds that service connection for sinusitis is not warranted, and this claim is denied. ORDER Service connection for sinusitis is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs