Citation Nr: 1327588 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 06-24 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a sinus disability, to include allergic rhinitis. 2. Entitlement to service connection for a nose disability to include deviated nasal septum. 3. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that, in his December 2005 notice of disagreement (NOD) and July 2006 substantive appeal, the Veteran also indicated that he disagreed with the September 2005 denial of his claims for service connection for vertigo, facial pain in the right cheek over the zygomatic arch, headaches, and breathing problems due to asbestos exposure. In a March 2011 rating decision, the RO granted service connection for the Veteran's post traumatic headaches, recurrent vertigo, and facial pain in the right cheek over the zygomatic arch. This decision was a complete grant of benefits with respect to these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, these issues are not currently on appeal before the Board. The Veteran's claim for entitlement to service connection for breathing problems due to asbestos exposure was denied in the Board's March 2012 decision. The Veteran was provided a videoconference Board hearing in February 2012. A transcript of the testimony offered at this hearing has been associated with the record. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. The above issues were remanded by the Board for additional development in March and December 2012. The issues of a sinus and rhinitis disorders were combined into a single disorder. However, the Board finds that the issues should be considered as separate disorders as the issues can be rated separately under Diagnostic Code 6502 for deviated septum, traumatic, and Diagnostic Code 6522 for allergic or vasomotor rhinitis. The issues have been reorganized accordingly. In April 2013, the Board requested a Veterans' Health Administration (VHA) advisory opinion. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(a) (2012). The resulting VHA opinion was received by the Board in August 2013 and has been included in the claims folder for review. Although the VHA opinion has not yet been provided to the Veteran and his representative, as the Board is granting in full the benefit sought on appeal, this procedural error is deemed to be non-prejudicial to the appellant. 38 C.F.R. § 20.903 (2012). The issue of entitlement to service connection for a sinus disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran's current deviated septum disability is related to his military service. 2. A cervical spine disorder did not manifest during service, and any current diagnosis of cervical spine disorder is not attributable to service or to a service-connected disorder. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, his deviated septum disability was incurred as a result of his military service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A cervical spine disorder was not incurred in active service, and may not be presumed to have been incurred in active service. See 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. May, July. And October 2004 VCAA letters fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, a March 2006 letter described how appropriate disability ratings and effective dates were assigned. The claims were subsequently readjudicated in various supplemental statements of the case, most recently issued in March 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such re adjudication in the statement of the case). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available, relevant service treatment records and post-service private and VA medical records are in the file. The Board concludes that all records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. Additionally, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided a VA examination in November 2004, January 2008, December 2009, May 2012, and January 2013 for his disability claims. The examination reports reflect that the examiners reviewed the claims file, conducted appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination report to be thorough and complete. Therefore, the Board finds the examination report and opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the January 2013 VA examination and report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its March and December 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection - Legal Criteria The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, 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) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection - Analysis A. Deviated Septum The Veteran asserts that he has a current deviated septum disability as a result of an injury falling down stairs during service. He reports having problems with his nose off and on since this injury. Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical records establish that the Veteran has a current deviated disability. In an October 2007 private ear, nose and throat (ENT) specialist note, the examiner found that the Veteran had a nasal septal deviation with 90 percent obstruction and increased turbinates. A January 2008 VA examination report confirmed the diagnosis of a deviated septum. There is also evidence suggesting in-service incurrence of a nose injury. A February 1967 service treatment records indicated the Veteran fell down some stairs. He had a contusion of the zygomatic arch. An August 1967 separation examination noted a narrow nasal passage, tight side. Finally, there is persuasive medical evidence that the Veteran's current deviated disability is related to the injury described above. In an August 2013 VHA opinion, the examiner reviewed the claims file and determined that it is at least as likely as not that the Veteran's symptoms of nasal obstruction are at least partially caused by nasal trauma during his active military duty in 1967. The VHA opinion is afforded high probative value as it was made after a review of the relevant evidence, including past examinations of the Veteran, and contains a rationale for the conclusion reached. The Board finds affording the Veteran the benefit of the doubt, the evidence is at least in relative equipoise and service connection for a deviated septum disability is warranted. B. Cervical Spine Factual Background Service treatment records, including the February 1967 injury report and August 1967 separation examination, include no complaints or diagnosis of neck pain. A September 1993 private treatment records indicate the Veteran was injured in May 1991 and underwent a three-level decompressive lumbar laminectomy. He did not improve strikingly and continued to have difficulty with back pain. In a May 2004 WellMed Medical Management note, the Veteran reported he fell running down some stairs and injured his neck. A June 2004 private follow-up indicated the Veteran underwent a physical examination. The Veteran did not complain of a neck disorder and the physical findings included no diagnosis of a neck disorder. During a November 2004 VA examination, the final diagnosis included neck pain, started post-fall trauma. An x-ray of the cervical spine showed no gross abnormality. In a July 2005 VA progress note, the Veteran reported ongoing neck pain since 1991. In an August 2006 VA progress note, the Veteran reported left sided cervical pain he blames on an incident in service. In an October 2007 private ENT evaluation, the examiner noted examination of the neck was normal. During a January 2008 VA examination, the examiner reported there is no evidence on active duty service that the Veteran had posterior cervical spine pain which originated from nerves or disk disease. His physical examination and reports of medical history does not support cervical spine issues or problems. The Veteran submitted a statement in April 2004 which did not include neck or right elbow problems. In a May 2004 statement, the Veteran reported he injured his upper neck area. The Veteran underwent a November 2004 VA examination and a cervical spine x-ray showed no gross abnormality. The Veteran reported he had a worker's compensation claim associated with back pain in 1992. Upon physical examination, the examiner noted inspection of his cervical was without edema or swelling. The Veteran pointed to multiple areas of the posterior cervical region not specific to the posterior vertebrae but soft tissues without hardening of the neck. There was no trapezius tenderness. Cervical lordosis was normal. The examiner tested range of motion. The examiner indicated the Veteran was nervous and he expressed facial grimacing, guarding, bracing, and rubbing, signs of illness behavior not associated with a specific cervical disk disease diagnosis. The diagnosis was normal cervical spine without upper extremity radiculopathy. In a December 2009 VA progress note, the Veteran complained of chronic neck pain. The physician noted a diagnosis of chronic neck pain with last x-ray in January 2008 indicating mild degenerative changes. A June 2010 VA cervical spine MRI showed multilevel cervical spondylosis most pronounced at C5-C6 where there is mild spinal canal stenosis as well as severe left greater than right neuroal foraminal narrowing. During a February 2012 videoconference hearing, the Veteran testified that since his in-service injury he has had pain in his neck as well as cracking and popping. During a January 2013 VA examination, the examiner noted that a January 2012 MRI report showed diffuse degenerative disk disease worse at the C5-C6 and small cystic dilations central canal which are stable. After review of the claims file and physical examination, the examiner determined that the Veteran's cervical degenerative disc disease (DDD) was less likely than not incurred in or caused by the in-service injury, event, or illness. The examiner stated that he spoke to the Veteran and a family member extensively during his examination, and even though he gave a good history, there are no medical records concerning neck problems for nearly 35 years. He also worked as a plumber until his back injury in 1993 with no reports of neck problems. Analysis The evidence reflects that the Veteran has a current diagnosis of a cervical spine disorder diagnosed as DDD. Having reviewed the complete record, however, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's current cervical DDD was incurred in or otherwise related to his military service or in-service injury. There is no medical evidence showing that the Veteran's neck disorder existed during service. See 38 C.F.R. § 3.303. Though there is evidence of a fall in service, there is no indication that this fall hurt or otherwise affected his neck. In addition, the evidence does not show that a neck disorder was diagnosed during one year presumptive period for chronic diseases. See 38 C.F.R. §§ 3.307, 3.309. In fact, the first complaint of a neck disorder was in May 2004, more than 35 years after separation from service. The evidentiary gap between the Veteran's active service and the earliest medical evidence of a neck disorder weighs heavily against the Veteran's claim on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The only evidence which supports the Veteran's claim is that of the November 2004 VA examiner which found neck pain which started after the in-service fall. However, the examiner gave no rationale for the opinion and no basis for a diagnosis considering the lack of physical findings at that time of a cervical spine disorder. Factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In contrasting these opinions, the Board is cognizant that the Court has stressed that '[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.' See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the January 2013 VA medical opinion to be of significantly more probative value than the November 2004 VA opinion as to whether the Veteran has a current cervical spine disorder due to an injury in service. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The reviewer considered the Veteran's claims file, his contentions, the medical evidence of record, and conducted a complete physical examination, but concluded that the Veteran's chronic neck pain was not caused by or related to his active duty service. Furthermore, a complete and thorough rationale was provided for the opinion rendered. Specifically, the examiner noted the absence of complaints of neck problems in service, and that the Veteran did not complain of neck pain until 2004 (or almost 35 years after separation from service). The examiner's conclusion was fully explained and consistent with the credible evidence of record. The Board has considered the Veteran's contentions and statements. The Board finds that the Veteran is competent to report his symptoms and treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). Furthermore, lay assertions 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); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). To the extent that the Veteran suggests in-service onset of any neck disorder shown during the appeal period or continuity of his rash symptoms since service, the Board finds that he is not credible because the disorder shown during the appeal period is not shown in the STRs or anytime soon after service, and because any assertion of continuity of symptoms is simply incongruous with the normal clinical evaluation on separation examination in 1967 and the normal physical neck evaluations post service. Therefore, the Veteran's statements have diminished probative value. In sum, the preponderance of the evidence is against the Veteran's claim for service connection. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a nose disability to include deviated nasal septum is granted. Entitlement to service connection for a cervical spine disability is denied. REMAND The Veteran asserts he has a sinus problem due to his in-service injury. Service treatment records indicate the Veteran was injured in a fall down stairs, which required a tooth extraction. When extracting the tooth, the sinuses were punctured. In a July 1967 service treatment record, the Veteran complained of nasal congestion and cough. The diagnosis was sinus congestion. Upon separation, the Veteran denied sinusitis; the sinus was marked as normal. The Board notes that the Veteran has a current diagnosis of a sinus problem. A June 2004 private treatment record included a diagnosis of allergic rhinitis. During a November 2004 VA examination, the Veteran complained that he awakens from sleep choking due to excess phlegm and posterior drainage in his throat. Upon physical examination, the examiner noted that the nose was normal and that he was moving air easily through both nares. His mouth was negative for pathology and his throat had no inflammation and no exudates. A head CT showed no acute intracranial abnormality. The final diagnosis included status post maxillary sinus surgery, and significant post nasal drip and excessive phlegm which at times causes sleep disturbance. In an October 2007 private ENT note, the examiner noted that the Veteran had a nasal septal deviation with 90 percent obstruction and increased turbinates. During a May 2012 VA examination, the examiner reported diagnoses of allergic rhinitis and deviated nasal septum. After review of the claims file, and a physical examination, the examiner found the Veteran's allergic rhinitis was not caused by or the result of events that occurred in 1967. He supported his opinion by stating that a traumatic injury would not cause allergic rhinitis. The Federal Circuit Court has held that VA has a duty, when determining service connection, to consider all theories of entitlement, both direct and secondary. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board is required to consider all issues which have been raised either by the claimant, or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008). The Board notes that service treatment records indicate that the Veteran's had an injury in service and subsequent complaints of sinus congestion. The Veteran has been granted service connection for his deviated septum as noted above. As such, the Board must consider all theories of entitlement, including whether the Veteran's claimed sinus disorder are secondary to his deviated septum. A remand is necessary to obtain medical opinions regarding this theory of entitlement and the Veteran should be provided with a VCAA letter informing him of the criteria for establishing service connection for a disability that is secondary to or aggravated by a service-connected disability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice advising the Veteran of the criteria for establishing service connection for a sinus disability that is secondary to or aggravated by a service-connected septal deviation disability. 2. Obtain and associate with the claims file all updated treatment records. Obtain the November 2011 sleep study that was referenced in the July 2012 SSOC. 3. Obtain an addendum opinion from the May 2012 VA examiner. If deemed necessary by the examiner, afford the Veteran an additional examination. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. After the claims file is reviewed, the examiner should offer an opinion addressing whether it is at least as likely as not (i.e., at least a probability of 50 percent) that the Veteran has a chronic sinus disorder. If so, the examiner should identify such disease/disorder. The examiner should then state whether it is at least as likely as not that the reported symptoms which have more recently been diagnosed as allergic rhinitis are proximately due to or aggravated (an increase in severity beyond natural progression) by his deviated septum disorder. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs