Citation Nr: 1324525 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 06-33 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for bronchitis. 3. Entitlement to an increased evaluation for degenerative disc disease of the cervical spine in excess of 30 percent disabling on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from June 1970 to January 1972, from January 1982 to January 1985, and from January 1986 to December 1987. He also had Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal following a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In the November 2004 rating decision, in pertinent part, the RO increased the disability evaluation for the Veteran's degenerative disc disease of the cervical spine from 10 percent to 20 percent. It also denied the claims for service connection for bronchitis and for sinusitis. In May 2007, the Veteran testified at the RO before a decision review officer (DRO). A copy that transcript is associated with the claims file. In October 2009, the RO increased the disability evaluation for degenerative disc disease of the cervical spine to 30 percent. In November 2010, the Board granted service connection for diverticulitis and denied claims for service connection for hand disability, for left wrist disability, for left leg/knee disability, for right leg/knee disability, and for a bilateral visual disability. It also denied claims for higher disability ratings for degenerative arthritis of the left shoulder, for degenerative arthritis of the left hip, for degenerative disc disease of the cervical spine, and for hypertension. Otherwise, the Board remanded the claims for service connection for foot disability (characterized as residuals of jungle rot), for lumbar spine disability, for degenerative arthritis of the right shoulder, for degenerative arthritis of the elbows, for degenerative arthritis of the right wrist, for bronchitis, and for sinusitis. In a January 2012 decision, the RO granted service connection for tinea pedis and onychomycosis (characterized as residuals of jungle rot). In September 2012, the Board denied the previously remanded claims for service connection for lumbar spine disability, for degenerative arthritis of the right shoulder, for degenerative arthritis of the elbows, and for degenerative arthritis of the right wrist. It again remanded the claims for service connection for bronchitis and for sinusitis, as well a remanded the issue of an extra-schedular rating for service-connected degenerative disc disease of the cervical spine. Thereafter, following action taken on the Board's requested development, the RO issued a supplemental statement of the case (SSOC) in February 2013 which reflected a denial of the Veteran's claims. The Veteran's claims folders have since been returned to the Board for further appellate review. The issue of entitlement to an increased evaluation for degenerative disc disease of the cervical spine in excess of 30 percent disabling on an extraschedular basis is remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. At no time during the appeal period has sinusitis been shown. 2. A respiratory disability, to include bronchitis, is not attributable to the Veteran's active service. CONCLUSIONS OF LAW 1. Sinusitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. Bronchitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist In a July 2004 letter, the agency of original jurisdiction (AOJ) notified the Veteran of information and evidence necessary to substantiate his claims for service connection for sinusitis and for bronchitis. The Veteran was also notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In a December 2006 letter, the Veteran was informed of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). While the December 2006 notice letter came after the initial adjudication of the Veteran's claims for sinusitis and for bronchitis in November 2004, the RO subsequently readjudicated those claims, most recently in a February 2013 SSOC. Thus, the readjudication of the Veteran's claims for service connection for sinusitis and for bronchitis cures the notice timing error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (All VA notice errors are not presumptively prejudicial, and any error must be examined in the context of the facts of a particular case.) Therefore, the AOJ has satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Furthermore, VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c). Service treatment records (STRs) have been associated with the claims folders as have VA treatment records. Also, all adequately identified and available private medical records have been secured, and the Veteran was provided additional VA examinations in October 2012 pertaining to his claims for service connection for sinusitis and for bronchitis. The Board notes that pulmonary function testing of the Veteran was attempted during a February 2011 VA examination and during the above noted October 2012 VA examination. The Veteran was unable to perform the pulmonary function testing at the time of the February 2011 VA examination due to coughing and shortness of breath. The PFT associated with the October 2012 examination was partially completed but had to be stopped due to the Veteran's coughing and dizziness. Thus, attempts to perform pulmonary function testing of the Veteran for evidentiary purposes regarding his claim for service connection for bronchitis have been unsuccessful in light of the Veteran's inability to complete the tests. Hence, no further action is found warranted at this time. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Sinusitis A review of the Veteran's STRs reflects reports of medical examinations (RMEs) and reports of medical histories (RMHs) which consistently show the sinuses to be clinically normal with no chronic or frequent colds, ENT trouble, or sinusitis. In particular, a January 1972 RME showed the sinuses, chest and lungs as clinically normal. (See also January 1972, January 1976, January 1980, October 1981 RMEs and RMHs.) In a December 1985 RMH, the clinician's summary noted that the Veteran had had sinus trouble one year prior, but there was no congestion at the time of the examination. In July 1986, an STR showed the Veteran as having difficulty breathing through his nose. The assessment was rhinitis and questionable allergies. At an August 1988 VA examination the Veteran was noted as having nasal congestion and that he cleared his throat of post nasal drip. The pharynx was identified as being benign. In October 1996, a private record showed a diagnosis of allergic sinusitis. The Veteran filed his claim for service connection for sinusitis in June 2004. A review of the medical evidence since the October 1996 private treatment record, to include that during the appeal period, does not reflect a diagnosis or treatment for sinusitis. In particular, private and VA treatment records dated since December 1998 reflect numerous HEENT (head, eyes, ears, nose, and throat) evaluations, none of which shows a finding of sinusitis. In a report of October 2012 VA examination, the Veteran was noted to complain of a runny nose and that every so often he experienced redness of the eyes and sneezing. The examiner referenced the October 1996 private treatment record and commented that there were no other entries identifying follow-up examinations or treatment for sinus disease. The examiner also commented that, "I find no clinical or radiologic evidence of sinusitis or rhinitis on this examination." In the present case, the Board finds that the evidence does not support a finding of a diagnosis of sinusitis. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (the absence of proof of a present disability there can be no valid claim.). At the very least, the evidence must show that, at some point during the appeal period the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Here, there is no competent medical evidence reflective of sinusitis at any time during the appeal period. The Board notes that lay persons are competent to identify a disability or symptoms thereof, with respect to some medical conditions. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has weighed the Veteran's contentions and reports regarding sinusitis with the other evidence of record. The Veteran is competent to report that he experiences a running nose, redness of the eyes, and sneezes. At his RO hearing in May 2007, the Veteran testified that he was not getting enough air when he took a breath and that he was reportedly told that it was due to his sinuses, although he wasn't sure that was the case. In assessing the value of the Veteran's statements regarding sinusitis, the Board finds such evidence to be less probative and persuasive in comparison to other pertinent evidence associated with the claims folders. The Board is mindful that when assessing a claim, it may not consider the absence of evidence as substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Nonetheless, the Board finds the lack of any documented complaints of sinus problems or treatment for sinusitis since the October 1996 private treatment record when considered in conjunction with the report of October 2012 VA examination findings, weighs against the claim for service connection for sinusitis. Consequently, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for sinusitis. In this regard, at no time since the Veteran filed his claim for service connection has a diagnosis of sinusitis been noted or has treatment for the disability or other sinus problem been shown. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for sinusitis is denied. See 38 U.S.C.A §5107. Bronchitis A review of the Veteran's STRs reflects a January 1972 RME showing the sinuses, chest and lungs as clinically normal and the RMH showing no chronic or frequent colds, tuberculosis, asthma, or shortness of breath. The January 1976 RMH (as well as RMHs after this point) did note a past history of pneumonia diagnosed by an Army doctor and the Veteran's subsequent complete recovery. A November 1982 STR showed a diagnosis of pleurisy with X-ray findings of some bronchopneumonia in the left base. By July 1983, a chest X-ray was normal and a subsequent chest X-ray in December 1986 failed to show any abnormality. Otherwise, some 1988 private treatment records show diagnoses of bronchitis; including a note that the Veteran's bronchitis is due to his smoking two packs of cigarettes per day. In the report of August 1988 VA examination, the Veteran was noted to have smoked one to two packs per day for 21 years but he denied a chronic cough or shortness of breath. A chest X-ray showed the lungs free of active disease. Records since that time show the Veteran has consistently smoked (see e.g. May 2009 record showing one and a half packs per day). A July 2003 VA record noted prominent bronchial markings throughout both lungs fields which might represent pulmonary hypertension. The importance of tobacco cessation was emphasized. The Veteran filed his claim for service connection for bronchitis in June 2004. At his May 2007 hearing, the Veteran reported problems with breathing and shortness of breath (SOB). He noted that his breathing problems had started in service. The Board notes that the Veteran did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) associated with his breathing difficulties which he believes might be due to bronchitis. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Pursuant to the holding in Clemons, the Board will consider the Veteran's claim as encompassing not just bronchitis but also any other identified respiratory disability. A review of the medical evidence during the course of the appeal period reflects intermittent complaints of SOB. In a report of August 2009 VA examination associated with the Veteran's claim for a higher rating for hypertension, it was noted that the Veteran was able to walk on a treadmill only one minute and 14 seconds and that the test was discontinued due to SOB. The clinician commented that the Veteran's inability to walk for a longer period on the treadmill was as likely as not due to deconditioning. In light of the Veteran's in-service history of bronchitis and his post-service complaint of a breathing problem, the Veteran was examined by VA in February 2011. The examiner commented that up to the year 2000, the Veteran had a history of recurrent bronchitis which first began in the 1980s and required treatment 3-4 times a year with antibiotics. Since that time the Veteran had not required any treatment for "acute bronchitis." The examiner noted that the Veteran smoked one pack of cigarettes per day and had been smoking since he was 18 years of age. The Veteran was also noted as having SOB on exertion and had been short of breath for approximately 10 years. Additionally, the Veteran was reported as being physically inactive related to spinal disabilities and did not exercise regularly. Following an examination, the diagnoses included recurrent bronchitis. The examiner commented that the Veteran was unable to perform a pulmonary function test (PFT) due to coughing and SOB, and that a recent chest X-ray had been unremarkable. The examiner also commented that it was as likely that the Veteran's breathing problems were due to a long-term smoking history. In an October 2012 VA respiratory examination report, it was noted that the Veteran complained of SOB with physical activities. The Veteran reported having been medically evaluated for a productive cough earlier that same month by his primary care doctor and treated with an antibiotic. Otherwise, a chest X-ray associated with the Veteran's October 2012 VA examination was noted as revealing no acute cardiopulmonary process. Findings from a PFT revealed pre-bronchodilator findings of 49 percent for FVC, 53 percent for FEV-1, and 83 percent for FEV-1/FVC. Post-bronchodilator testing was not conducted due to the Veteran's violent coughing and dizziness. Those PFT findings that were available were noted as being consistent with "restriction" and that the identified decrease in FEV-1 percentage was consistent with the Veteran's smoking history. Following her interview and examination of the Veteran as well as review of the claims folders, the VA examiner noted that she was unable to give an opinion concerning any respiratory disability without resorting to speculation. She explained that the Veteran had been unable to perform pre- and post- PFT allowing for a diagnosis of a respiratory disability to be made. Otherwise, the VA examiner commented that the evidence failed to support a diagnosis or treatment for "chronic bronchitis." She checked the box on the DBQ indicating that "The claimed condition was less likely than not . . . incurred in or caused by the claimed in-service injury, event, or illness." The Board finds the October 2012 VA examiner's opinion to be sufficient for purposes of consideration of the Veteran's claim. Notwithstanding her conclusion that she could not provide an opinion without resorting to speculation, the United States Court of Appeal for Veterans Claims (Court) has held that in cases involving a speculative medical opinion, "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The Court stated that, "[a]n examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion." Id. at 390. The Court also stated that, "it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data." Id. In the instant case, the October 2012 VA examiner provides a sufficient explanation for her inability to provide the requested opinion concerning whether a respiratory disability was related to service due to the Veteran's inability to complete his PFT. The VA examiner is noted to have examined the Veteran and reviewed his claims folders and also references the Veteran's medical history. The explanation provided by the November 2012 VA examiner is exactly the type of situation that is contemplated by the Court in Jones: "the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." See 23 Vet. App. at 389. In the present case, the VA examiner concluded that it was not possible to provide a diagnosis or etiology concerning a respiratory disability-not because she would be speculating, but because the record before her did not allow for her to provide such an opinion. Likewise, with regard to bronchitis, the examiner's review of the evidence did not support that the Veteran suffered from chronic bronchitis related to his period of service. As noted above, a private treatment record in 1988 noted the clinician's opinion that the Veteran's bronchitis was secondary to cigarette smoking. Likewise, the February 2011 VA examiner opined that bronchitis was due to smoking. Chronic respiratory disability was not attributed to active service. Neither the Veteran nor his representative has submitted or identified medical evidence that refutes these opinions. For claims received after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300 (2013). Since chronic respiratory disability has not been associated with the Veteran's period of active service, a basis for service connection is not established. The Board has weighed the probative value of the Veteran's lay statements and reported medical history regarding a respiratory disability to include bronchitis. The Veteran has testified that his breathing problems began during active service. While lay persons are competent to report symptoms of disability, such as SOB, or provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case-whether the Veteran has bronchitis or other respiratory disability and whether bronchitis or other respiratory disability is related to service falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bronchitis, to include any respiratory disability other than bronchitis. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for bronchitis is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for bronchitis is denied. REMAND Pursuant to the Board's most recent remand of this case, in February 2013, a member of VA's Compensation and Pension (C&P) Service concurred with the AOJ's finding that an extra-schedular rating was not warranted with regard to the Veteran's DDD of the cervical spine. However, the rationale for the decision includes a statement that the August 2009 VA examiner concluded that cervical spine disability would preclude manual but not sedentary employment. However, the report of the examination indicates that cervical spine disability would preclude manual labor, especially stooping, or ladder use and that a desk job could not be done due to severe neck pain and spinal stenosis. As the Board may not make a determination of an extra-schedular rating in the first instance and VA's C&P Service has not based its decision on an accurate factual depiction, the case must be remanded for an addendum to that opinion. Compliance with remand directives is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to assure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should refer the Veteran's increased rating claim for cervical spine disability to the Under Secretary for Benefits or the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). Either the Under Secretary or the Director must review the evidence of record to determine whether an extra schedular rating is warranted. A review of the claims folder, to include the August 2009 VA opinion, is required. It should be noted that the report of the examination indicates that cervical spine disability would preclude manual labor, especially stooping, or ladder use and that a desk job could not be done due to severe neck pain and spinal stenosis. Associate the addendum response with file. 2. Thereafter, re-adjudicate the issue of entitlement to an increased evaluation for degenerative disc disease of the cervical spine in excess of 30 percent disabling on an extraschedular basis. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with an SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs