Citation Nr: 1324097 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-12 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for a sinus disability, to include sinusitis and rhinitis. REPRESENTATION Appellant represented by: Vermont Veterans Affairs Section, Military Department WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from May 1970 to March 1974 and from February 1980 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which found that new and material evidence had not been submitted to reopen a claim for service connection for sinusitis. In April 2010, this matter was remanded to the RO in order to schedule the Veteran for a hearing before the Board at the RO. In May 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In a March 2011 decision, the Board found that new and material evidence had been submitted to reopen the claim for service connection for sinusitis, and, after reopening the claim, remanded the claim for further development. The Board finds that there was not substantial compliance with the March 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In August 2012, the Board remanded the issue on appeal for further evidentiary development. The Board is satisfied that there has been substantial compliance with the remand directives set out in August 2012. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The preponderance of the competent evidence of record is against a finding that the Veteran has a sinus condition, to include sinusitis and rhinitis, that is related to his active service or any incident therein, or that resulted from or is aggravated by his service-connected sleep apnea. CONCLUSION OF LAW A sinus disability was not incurred in or aggravated by service and is not shown to be due to, the result of, or aggravated by service-connected sleep apnea. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 51030A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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) (2012). The notice must be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim: (1) Veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). If complete notice is not provided until after the initial adjudication, any timing error can be cured by subsequent legally adequate notice, followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case. Where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls upon party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the duty to notify was satisfied by letters sent to the Veteran in August 2005 and October 2005 that fully addressed the notice elements and were sent prior to the initial RO decision in this matter. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that in the RO's notice letter dated in April 2006, the Veteran was advised of how disability ratings and effective dates are assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. In that regard, VA has obtained all identified and available service and post-service treatment records for the Veteran. Additionally, in May 2010, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. Further, the record shows that the Veteran underwent VA examinations in this matter in November 2008, April 2011, and September 2012. The Board finds that the November 2008 VA examination and the September 2012 VA DBQ examination both included a review of the claims folder and a history obtained from the Veteran. At those VA examinations, clinical findings were reported, with diagnoses/opinions, which were supported in the record. Thus, the November 2008 and September 2012 VA examination reports are adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994). The service medical records show that in February 1983, the Veteran had congestion and ear blockage, diagnosed as otitis media. In October 1985 and October 1987, he suffered from a sore throat, dry cough, and slight nasal congestion, related to upper respiratory infections. On December 1992 consult for a sleep disorder, the Veteran reported an increase in snoring and daytime sleepiness, but did not report any associated sinusitis. In April 1994, he reported symptoms that were interpreted to suggest possible hay fever allergies. On May 1997 separation examination, it was noted that the Veteran had undergone throat surgery in 1993 to relieve his sleep apnea. On May 1998 VA examination, the Veteran reported that in 1993, he had undergone surgery to remove his uvula to stop his excessive snoring and relieve his sleep apnea. Physical examination of the sinuses showed no opacity on transillumination. A sinus CT scan was entirely within normal limits, without any signs of sinusitis. On a June 2005 VA physical examination, the Veteran reported occasional congestion, but no respiratory diagnosis was provided. Physical examinations completed in August 2006 and in August 2007 were negative for any complaints related to or findings of sinusitis. On February 2006 VA examination, physical examination of the nose and sinuses was normal. The Veteran reported that his sleep apnea had been asymptomatic since the 1993 surgery. The diagnosis was history of hay fever/allergies, as noted in service. In August 2008, the Veteran's wife stated that he was continuously bothered by post-nasal drip. On November 2008 VA examination, the Veteran reported experiencing chronic, daily post-nasal drip that caused coughing in the morning and night, as well as gagging and snorting. He had interference with breathing through his nostrils and stated that he normally breathed through his mouth. He denied episodes of chronic sinusitis, such as pain, headaches, or purulent discharge. Physical examination revealed 90 percent obstruction of the left nares and 50 percent obstruction of the right nares. There was no septal deviation or polyps. The diagnosis was sinus condition manifested by post-nasal drip. The examiner concluded that it was less likely than not that the Veteran's current sinus condition was related to the in-service respiratory infections, or the notation of otitis media, because those were minor respiratory infections and not chronic illnesses that would continue to manifest at the current time. In May 2010, the Veteran testified that he began to develop his congestion and sinus symptoms following the surgery for sleep apnea in service. On VA examination in April 2011, the diagnoses included rhinitis, and the examiner opined that it was not possible that the Veteran's rhinitis was caused by, aggravated by, or related to, in any way, his service-connected obstructive sleep apnea. On a VA disability benefits questionnaire (DBQ) examination in September 2012, the examiner was to indicate whether the Veteran had ever been diagnosed with a sinus, nose, throat, larynx, or pharynx condition, and indicated that the Veteran underwent a uvulopalatoplasty and tonsillectomy for sleep apnea, and had been diagnosed with borderline sleep apnea in October 1992. For medical history it was noted that the Veteran underwent surgery (uvulopalatoplasty and tonsillectomy) in service in April 1993, and that subsequent to surgery he complained of constant post nasal drainage and also complained of occasional nasal regurgitation. It was also noted that he had been treated for sinusitis only one time since that date in June 2102 following an upper respiratory infection. It was noted that he had been concerned that nasal regurgitation could cause chronic sinusitis, and that there was no complaint of nasal obstruction, prior nasal injury or surgery, or loss of sense of smell or taste, and that he did work on his own farm and had had rhinitis which was treated in the past with intranasal steroids without benefit. In response to the question of whether the Veteran had a nose, throat, larynx, or pharynx condition, the examiner checked "rhinitis", but did not check "sinusitis." The examiner indicated that the Veteran did not have chronic sinusitis and rhinitis and opined that it was not likely that it was caused by or permanently worsened by his service-connected sleep apnea and resulting surgery. In an addendum, the VA examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. For rationale, the examiner indicated that the Veteran had rarely been treated for sinusitis and there was no documentation of treatment in his claims folder. It was also noted that the Veteran had a CT scan of the sinuses performed in April 1998, which was reported as a normal scan. The examiner also noted that there was no documented evidence of subsequent treatment for sinusitis or rhinitis which would suggest a change. The examiner also noted that there was no documentation of treatment for chronic sinusitis or rhinitis subsequent to the findings of a normal CT scan of the sinuses dated in April 1998. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, sinusitis and sinus conditions are not listed under 38 C.F.R. § 3.309(a). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time during or contemporary to the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issue in this case, a diagnosis of a sinusitis or rhinitis, and the etiology of the disability, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in each issue shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). An appellant need only demonstrate that there is an approximate balance of positive and negative. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) The Veteran essentially contends that he has sinusitis related to his service or his service-connected sleep apnea. He contends that his sinusitis had its onset in service, and that his sinusitis began after his surgery for service-connected sleep apnea, and was therefore caused or aggravated by his sleep apnea. Although the Veteran has contended that he has sinusitis related to his service-connected sleep apnea, the Board will also consider whether service connection is warranted for a sinus disability, to include sinusitis, on a direct basis. Initially, the Board notes that a current disability of sinusitis has not been shown by the record. However, the record shows that the Veteran has been diagnosed with rhinitis. Therefore, the Board finds that he has been shown to have a current sinus disability during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007). The service medical records show no report or finding of sinusitis or other sinus condition. What is missing for the claim for direct service connection is competent medical evidence of a link between the Veteran's current sinus disability (rhinitis) and active service. VA examiners in 2008, 2011, and 2012 have essentially opined that the Veteran's current sinus disability is not related to service. Moreover, the Veteran has not submitted or identified any medical opinion or other medical evidence regarding an etiological relationship to service that supports the claim. While the Veteran would be competent to report on any sinus symptoms he may have had since active service, as a lay person, he is not competent to report that he has sinusitis or other sinus disability related to that period of service, because he is not competent to provide a medical opinion regarding diagnosis or etiology. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. §§ 3.303(a), 3.159(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, post-service treatment records show that the Veteran's rhinitis was first diagnosed in April 2011, and that prior to that date a VA examiner in 2008 found that he had a sinus condition manifested by post-nasal drip. In consideration of the evidence of record, the length of time between the Veteran's discharge from service and the first medical notations of any sinus condition, and the absence of any medical opinion suggesting a causal link between any sinus disability and active service, the Board finds that the preponderance of the evidence is against the claim of direct service connection for a sinus disability. With regard to the claim for secondary service connection, the Board notes that service connection has been granted for sleep apnea. Further, several VA medical providers have addressed whether a sinus disability, to include sinusitis and rhinitis, may be causally related to the Veteran's service-connected sleep apnea. 38 C.F.R. §§ 3.303, 3.310 (2012). On VA examination in April 2011, the examiner opined that it was not possible that the Veteran's rhinitis was caused by, aggravated by, or related to, in any way, his service-connected obstructive sleep apnea. On the VA DBQ examination in September 2012, the examiner indicated that the Veteran did not have chronic sinusitis and rhinitis and opined that it was not likely caused by or permanently worsened by his service-connected sleep apnea and resulting surgery. Thus, the Board finds that there is probative and persuasive medical evidence speaking to the issue of whether the Veteran's current sinus disability, most recently diagnosed as rhinitis, may be related to the service-connected sleep apnea. Specifically, the VA examiners' opinions in 2011 and 2012 are found to be probative and persuasive, as they were based upon review of the Veteran's records and the opinion in 2012 is supported by specific rationale. In addition, the Veteran has not submitted any competent medical evidence to the contrary. The Board recognizes that the Veteran has sincerely contended that he has sinusitis related to his sleep apnea. However, post-service objective examinations have not shown any finding or diagnosis of sinusitis. While the Board acknowledges the Veteran's statements, the objective medical evidence showing that he does not have sinusitis is found to carry greater weight than his lay statements. The Board has conceded that the Veteran has at least some type of sinus condition, most recently diagnosed as rhinitis. However, although the Veteran is competent to report his sinus symptoms, and lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation, the Board does not find that the etiology of rhinitis or other sinus condition is subject to lay diagnosis. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007). The Board finds no basis for concluding that a lay person would be capable of discerning whether a current sinus disability had an onset in service or is related to sleep apnea, in the absence of specialized training. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a sinus disability, to include sinusitis and rhinitis, on both a direct basis and as secondary to the service-connected sleep apnea. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a sinus disability, to include sinusitis and rhinitis, is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs