Citation Nr: 1323670 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-26 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for sinusitis with characteristics of congestion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to March 1961 and from June 1961 to May 1965. This matter is on appeal from a December 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2011, December 2012, and May 2013, the Board remanded the case to the Appeals Management Center (AMC) in Washington, DC, for additional development. The development has been completed and the case is before the Board for final review. The Board previously characterized the claim on appeal as entitlement to service connection for sinusitis with characteristics of congestion and a deviated septum, and the RO had characterized the claim as entitlement to service connection for sinus congestion status post injury, to include deviated septum. In an October [2012] rating decision, the AMC granted service connection for left zygoma fracture residuals and assigned a noncompensable rating, effective January 5, 2006, which was the date of the Veteran's claim. The narrative section of the rating decision identified residuals of the left zygoma fracture as deviated nasal septum, 20 percent right nasal obstruction and 20 percent left nasal obstruction, and pain. Because a deviated nasal septum has been identified as a residual of the service-connected left zygoma fracture, the Board has recharacterized the claim as noted. FINDINGS OF FACT The Veteran does not have chronic sinus disability with characteristics of congestion that is related to service or a service-connected disability. CONCLUSION OF LAW The criteria for establishing service connection for sinusitis with characteristics of congestion have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In March 2006 a VCAA letter was issued to the Veteran with regard to his claim of service connection. The letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA; a March 2007 letter notified him of the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. 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 Board also finds that VA has complied with all assistance provisions of the VCAA, to include substantial compliance with the prior remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment and personnel records, post-service VA and private outpatient treatment records, and lay statements of the Veteran. There is no indication of relevant, outstanding records that have not already been requested that would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). In October 2006, November 2006, March 2011, and February 2013, the Veteran was afforded VA examinations pertinent to his claimed sinusitis disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the sinusitis issue in appellate status. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted 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). The Veteran's service treatment records are silent for diagnosis or treatment of sinusitis. The records reflect that the Veteran was in a physical altercation in July 1961 and sustained a fracture of the left zygoma [cheekbone]. He underwent two surgeries for simple fracture of the left zygoma in August 1961, first a closed reduction and later an open reduction of the left zygomatic fracture. A September 1961 treatment record noted draining sinus from the alveolar ridge into the maxillary sinus from previous surgery because of maxillary fracture. He was evaluated at the ENT clinic two days later. A sinus disorder was not identified. In November 1961 he reported having a cold for the past few days with nasal congestion. Examination the next day was reported as unremarkable. In September 1963 he complained of a cold in his throat and nose for the past two to three days. In reports of medical history dated in June 1960 (enlistment), February 1961 (separation), June 1961 (enlistment), March 1962 (reenlistment), and April 1965 (separation), the Veteran denied currently or ever having sinusitis. On examination in June 1960, February 1961, June 1961, and April 1965, clinical evaluation of the sinuses was reported as normal. The Veteran's claim for "sinus blockage and drainage" was received in January 2006. In a separate statement, his representative explained that the Veteran's "sinus cavity was shattered" when he was struck in the face with a rock during military service and despite two surgeries, his "sinuses [were] either blocked or draining all of the time." Among private treatment records from numerous sources dated from January 1972 to January 2006, the first documentation of a subjective sinus problem was in August 1998. That treatment record from Byrdstown Medical Center reflects the Veteran's complaint of sinus drainage, cough, congestion, runny nose, and sore throat, as well as his report that he had been afebrile. There was some tenderness with percussion over the maxillary sinuses. The assessment was upper respiratory infection. In December 1998, he complained of pressure in the face, sinus drainage, congestion, and coughing. On examination, he had tenderness with percussion over the maxillary sinuses, especially the left one. The assessment was sinusitis. He had another upper respiratory infection in July 2000. Private treatment records dated from November 2000 to January 2006 from T. Brown, M.D., from Westview Medical are also associated with the claims file and pertinent to the Veteran's claim. In April 2003, he reported chest congestion and upper respiratory tract congestion with a low grade fever. The impression was sinusitis and bronchitis. In November 2003, he reported a possible sinus infection, describing sinus fullness, some nasal congestion, and mild cough. The impression included sinusitis. Finally, in November 2005, he again complained of nasal congestion, post nasal drip, and scratchy throat. The assessment was upper respiratory infection. During treatment at the Upper Cumberland Heart Institute in September 2005, ENT examination revealed no gross abnormalities. Private treatment records also reflect the Veteran's reported past surgical history to include sinus surgery; however, the records do not reflect reports of sinus problems in the context of past medical history or chronic medical problems. The available private treatment records do reflect a reported history of smoking cigarettes since age 12 [since 1954], up to one to two packs per day, until at least September 2005 with some intermittent periods of abstinence or decreased use. In December 2000, he requested help from Dr. Brown with smoking cessation due to worsening cough. VA treatment records dated from June 2006 to August 2012 associated with the Virtual VA claims file reflect two reports of headaches, but do not show diagnosis or treatment for sinusitis or other chronic sinus disorder. During a June 2006 new patient visit, the Veteran reported that he had sinus headaches and that the left face sinuses were crushed. During July 2006 primary care treatment, he reported a cough for the past five to six months with a stuffy nose. He indicated that he had smoked one pack of cigarettes per day for 50 years. In November 2010, he complained of headaches. The assessment was tobacco use disorder and hypertension. During an August 2012 annual examination, he denied loss of smell, frequent colds, epistaxis, postnasal drip, headaches, or cough. He continued to smoke. The Veteran was afforded several VA examinations to evaluate his claimed disability. During an October 2006 VA bones examination, the Veteran described sinus fullness and drainage through the left nostril and a history of sinusitis manifested by drainage. On examination, there was no evidence of sinus disease. The diagnosis was chronic sinus drainage. The examiner opined that he could not resolve whether chronic sinus drainage was due to or a result of the left zygoma fracture without resort to mere speculation. He explained that it was reasonable that the zygoma fracture could lead to the chronic sinus drainage, especially because there was a fistula seen in 1961 on ENT evaluation. However, without a repeat ENT examination, it would be mere speculation to assume that this fistulous tract was still open and causing the sinus drainage. The Veteran presented for a VA ENT examination in November 2006. He described being punched in the face by someone holding a rock during military service and undergoing surgeries for a left zygomatic fracture. The examiner remarked that the surgeries the Veteran described continued to be a standard way of treatment for these arch fractures. The Veteran described having chronic sinus infections with green and yellow sinus drainage and some runny nose and sneezes at times, but nothing constant; he denied any facial pain or headaches. The examiner noted that no CT scan was available to assess the bony anatomy of the sinuses, and he was unable to see into the sinuses on endoscopic examination. The examiner also noted that the claims file was not available for review. Following a physical examination, the examining surgeon opined that it was not likely that the zygomatic arch fracture, which was repaired by an open approach still used today, led to any sinus problems for the Veteran. He explained that because the zygomatic arch was the main bone involved, it was not likely given the location of the fracture by description that this involved any portion of the maxillary sinus ostium on that side. The surgeon emphasized that it would seem less likely that the zygomatic fracture had anything to do with the Veteran's chronic sinusitis complaints than normal chronic sinusitis complaints. He concluded that he did not believe that the Veteran's service was related to sinus complaints in any way. In December 2007, a different VA physician reviewed the Veteran's claims file. He stated that without CT scan or endoscopic visualization, it was impossible to say whether the Veteran had sinus disease at this time. He added that it was unlikely that the in-service surgery for the zygoma fracture contributes to persistent sinus disease. The Veteran was afforded another VA ENT examination in March 2011; the examination report reflects that the examining surgeon reviewed the claims file. The Veteran reported nasal congestion, headaches, and sinus infections. On physical examination, there was no evidence of sinus disease. The impression of an x-ray study of the sinuses was no evidence of sinusitis; no fractures appreciated although the zygomatic arches were not well delineated. The diagnosis was left zygoma, facial fracture, resolved, with associated pressure and pain. The Veteran was afforded an additional VA examination in February 2013 to determine whether he had a current sinus disability related to an in-service left zygoma fracture with surgical repair. A maxillofacial CT scan revealed no evidence to suggest acute sinusitis and revealed trace mucosal thickening in the alveolar recess of the left maxillary sinus. Following a review of the claims file and physical examination, the diagnosis was left zygoma fracture, resolved. A sinus disorder was not diagnosed. In a January 2013 statement (received in February 2013), T. Brown, M.D., indicated that she had been the Veteran's family physician since 2006 and had treated him regularly for recurrent sinusitis for the past seven years [since 2006]. She indicated that he had required antibiotics, saline nasal irrigation, and intra-nasal steroids frequently. She identified symptoms of headache, sore throat, nasal obstruction, fever, and cough when his sinus condition flares and reported that the left side of the face was usually affected worse than the right by the infections. In correspondence dated in March 2013 the Veteran described sinus symptoms that included headache, pressure, and pain in his sinus cavity and ears when he goes under water. In a May 2013 letter, the AMC asked the Veteran to complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, to allow VA to obtain treatment records from Dr. Brown or that he obtain and submit the information himself; a copy of the letter was sent to the Veteran's representative. The Veteran did not reply to the request or submit additional treatment records. A May 2013 Virtual VA report reflected that subsequent to August 2012, the Veteran was seen in the VA audiology clinic. Having carefully considered the medical and lay evidence and the Veteran's contentions, the Board finds that service connection for sinusitis with characteristics of congestion is not warranted. Initially, the Board acknowledges that the Veteran is competent to describe symptoms he experiences such as sinus congestion, pain, and discharge. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, as a lay person, the Veteran is not competent to provide a medical diagnosis regarding a sinus disability or to determine the etiology of a claimed sinus disability as such matters require medical testing, such as x-rays or CT scans, and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board accords significantly greater probative value to the medical evidence of record than to the Veteran's lay assertions on these points. In this case, the Board finds that service connection for sinusitis with characteristics of congestion is not warranted because there is no evidence of a current sinusitis disability. The Board notes that the Veteran's service treatment records reflect a single instance of sinus drainage in September 1961 and examination of the sinuses was consistently normal, including at separation. In addition, in contrast to the characterization of the Veteran's in-service injury by the Veteran's representative as a "shattered" sinus cavity, the medical evidence reflects a simple fracture of the left zygoma or cheekbone without reference to the sinuses. Similarly, the private medical evidence of record, dated as early as January 1972, reflects three instances of diagnosed sinusitis between December 1998 and November 2003, and VA treatment records dated from June 2006 to May 2013 are void of diagnosis or treatment for sinusitis. Finally, the Board finds persuasive the March 2011 x-ray of the sinuses and the February 2013 CT of the sinuses, which did not identify a sinus disability. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. Where, as here, the claims file is void of any competent medical evidence establishing that the Veteran currently has a sinusitis disability, the condition for which service connection is sought is not established, and thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Dr. Brown has recalled treating the Veteran for sinusitis on occasion, but attempts to obtain treatment records of this have been unsuccessful. To the extent the Veteran had episodes of sinusitis since service discharge, it has not been shown to be chronic or related to service or a service-connected disability. Although he did not have access to the claims file or a CT scan of the bony anatomy of the sinuses, the November 2006 VA examining surgeon's medical opinion is persuasive evidence against the claim. The surgeon opined that it was not likely that the zygomatic arch fracture led to any sinus problems and supported his conclusion by detailing that the anatomical location of the fracture on the zygomatic arch did not appear to involve any portion of the maxillary sinus ostium. The Board notes that the examiner's conclusion appears to be consistent with the service treatment records pertaining to the zygomatic, or cheekbone, fracture because the records, in fact, do not document injury or involvement of the maxillary sinus ostium. In summary, the Veteran is not shown to have chronic sinusitis disability related to service or a service-connected disability. Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence. The preponderance of the evidence now of record is against the Veteran's claim of service connection for sinusitis with characteristics of congestion. ORDER Service connection for sinusitis with characteristics of congestion is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs