Citation Nr: 1331075	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  05-19 280	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a left heel disability, to include as due to an undiagnosed illness and as secondary to service-connected disability. 

2.  Entitlement to service connection for a right heel disability, to include as due to an undiagnosed illness and as secondary to service-connected disability. 

3.  Entitlement to service connection for an upper respiratory disability, to include sinusitis, to include as due to an undiagnosed illness.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from September 1989 to March 1996 (including in Southwest Asia from August 1990 to April 1991) with subsequent Reserve service. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2004, August 2011 and December 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran provided testimony before the undersigned Acting Veterans Law Judge at a Travel Board hearing in July 2007.  A transcript from this hearing is of record.

In January 2008, July 2011 and November 2012 decisions, the Board remanded these issues for additional development.

Per a March 2012, submission, the Board finds that claims for increased evaluations for right knee, left knee, and low back disorders have been raised by the record.  A May 2013 Brief on Appeal similarly appears to raise a total disability evaluation claim.  These issues are REFERRED back to the RO for appropriate action.



FINDINGS OF FACT

1.  There is no competent evidence linking the Veteran's left heel disability to service, to include as due to an undiagnosed illness.

2.  The Veteran has complaints of right heel pain that are not attributable to a disease or injury incurred in service, and there are no objective indications of a qualifying chronic disability underlying such symptoms.

3.  A current upper respiratory disability encompassing sinusitis is not attributable to a disease or injury incurred in service, and there are no objective indications of a qualifying chronic disability underlying such symptoms.


CONCLUSIONS OF LAW

1.  A left heel disability was not incurred in or aggravated by service, nor is it due to an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War.  38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.317 (2013). 

2.  A right heel disability was not incurred in or aggravated by service, nor is it due to an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War.  38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.317 (2013). 

3.  An upper respiratory disability to include sinusitis was not incurred in or aggravated by service, nor is it due to an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War.  38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.317 (2013). 




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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.  Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

In this appeal, the RO provided notice to the Veteran in an August 2011 letter which explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The August 2011 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  After issuance of the August 2011 letter, and opportunity for the Veteran to respond, the April 2013 supplemental statement of the case (SSOC) reflects readjudication of the claim.  Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice.  See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Board also concludes that VA's duty to assist has been satisfied.  The Veteran's service treatment records and relevant VA and private medical records are in the file.  All records identified by the Veteran as relating to these claims have been obtained, to the extent possible.  The Board finds that the record contains sufficient evidence to make a decision on the claims.  VA has fulfilled its duty to assist.

Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of various VA examinations, to include recent August 2009 and September 2011 VA examinations.  The August 2009 and September 2011 examination reports reflect that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Per the November 2012 Board remand instructions, the Veteran was scheduled for a VA examination to provide an opinion as to the etiology of the claims currently under appeal.  The Veteran underwent VA examinations for his bilateral hips and elbow which resulted in a grant of service connection for these disabilities in an April 2013 rating decision.  However, while the Veteran was also scheduled to undergo VA examinations for his bilateral heel and upper respiratory disabilities, the January 2013 VA examiner noted that the Veteran indicated that he did not request an appeal of either his upper respiratory condition or his bilateral heel condition.  The examiner reported that the Veteran stated that he accepted both of these disabilities as non-service connected and declined further examination or evaluation.  Accordingly, the January 2013 VA examiner cancelled these examinations upon the Veteran's request.

As a result of the report of the January 2013 VA examiner who indicated that the Veteran expressed his desire to withdraw his appeals for his bilateral heel and upper respiratory disabilities, the RO in a February 2013 letter, notified the Veteran of the VA examiner's account of the Veteran's intentions regarding these claims and requested that the Veteran confirm that he was in fact was withdrawing these claims.  However, the Veteran did not respond to this request and the Board thus will proceed with the claims currently under appeal.

The duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Where entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(b).  Accordingly, as the Veteran declined examinations in January 2013 for his claimed respiratory and heel disabilities, further examinations are not warranted in this instance. 

As such, the Board finds that the AMC substantially complied with the November 2011 remand directives, and that no further action in this regard is warranted.  See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).

Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by his representative and the Veteran's July 2007 hearing testimony.  Moreover, during the July 2007 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claims.  These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c) (2) and consistent with the duty to assist.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  There are accordingly no deficiencies of notification in this case, nor has the Veteran argued otherwise.

The Board finds that no additional RO action to further develop the record on the claim is warranted.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 

Service Connection Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical evidence of a 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 disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury.  Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service- connected disability.  Id.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). 

Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability.  See 71 Fed. Reg. 52744 (2006).  The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. 

Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  See 76 Fed. Reg. 81834 (Dec. 29, 2011) (codified at 38 C.F.R. § 3.317(a) (1) (2013)). 

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d)  warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Further, lay persons are competent to report objective signs of illness.  Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a) (5) (2013); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). 

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a) (2) (ii) (2013).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R.  §3.317(a) (3) (2013).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b) (2013). 

For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a) (4) (2013).

In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 are warranted.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure).  Thus, the presumption is not the sole method for showing causation.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

As a threshold matter, the Board notes that military records reflect that the Veteran is a Persian Gulf Veteran, as his service personnel records confirm that his Southwest Asia Service was from August 1990 to April 1991.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case.

A. Bilateral heel disabilities

On July 1989 service entrance examination, the Veteran's lower extremities were normal on clinical evaluation. 

In October 1989, the Veteran presented with complaints of a painful right heel as he fell on a glass shard and suffered a cut.

A July 1992 service treatment record indicates that the Veteran complained of a twisted ankle during physical training.  The assessment was possible strained ligament.  X-rays were interpreted as revealing no fracture or dislocation. 

An August 1992 service treatment record indicates that the Veteran complained of pain in his left foot for two weeks prior.  The assessments were possible strained ligament and stress fracture. 

A May 1993 service treatment record indicates that the Veteran complained of pain in the left heel, the assessment was Achilles tendonitis.  A left calcaneus examination indicates a history of increased heel pain provoked by weight bearing without history of trauma.  The assessment was "? spur vs. S.F."  The report noted questionable moderate soft tissue swelling of the plantar aspect of the left calcaneus. 

The Veteran underwent a VA examination in August 2009.  He reported that he had bilateral heel pain due to constant marching on concrete roads and indicated that his primary doctor told him that he had arthritis of the heels.  The examiner also noted that the Veteran reported right heel pain since 2000.  His heels did not currently hurt as they flared up a few months ago.  The diagnosis was left plantar calcaneal spur with secondary pain and alleged right heel condition with no diagnosis.  The examiner opined that the Veteran's left heel condition was less likely than not as due to or a result of the Veteran's military service.  Regarding the right heel pain, there was no underlying pathologic condition of the right heel found on the current examination.  The examiner opined that the Veteran's left heel spur was less likely as not due to or a result of military service as there was no evidence of significant injury to the left calcaneus and no evidence of left heel or foot pathology during military service. 

Under the circumstances of this case, the Board concludes that service connection for left and right heel disabilities is not warranted.

Regarding service connection for a left heel disability, at the outset, the Board notes that while the Veteran served in Southwest Asia, his left heel complaints have been attributed to known clinical diagnoses (left plantar calcaneal spur with secondary pain), which are not undiagnosed or chronic multisymptom illnesses.  Therefore, it does not fall with the purview of the undiagnosed illness presumptive provisions under 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317.  Accordingly, the analysis progresses to the question of direct and secondary service connection for the disabilities.  See Combee, 34 F.3d at 1042. 

Although the Veteran complained of left calcaneal pain in service, the service treatment records however, are negative for any or diagnoses of any chronic left heel disorders as the left heel complaints were medically addressed in service, and appear to have been of an acute and transitory nature.  

Moreover, there is no competent evidence or opinion even suggesting that there exists a medical nexus between current left plantar calcaneal spur and the Veteran's military service.  In fact, the only medical opinion addressing the etiology of the left heel disability weighs against the claim.  As indicated above, the August 2009 VA examiner opined the Veteran's left heel spur was less likely as not due to or a result of military service as there was no evidence of significant injury to the left calcaneus and no evidence of left heel or foot pathology during military service.  As the opinion is by a medical professional competent to provide it, and explains the underlying rationale (citing to medical evidence), it is probative evidence in this matter.  None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion.  

Regarding the claimed right heel disability, the Board finds that service connection is not warranted on a direct basis, as the Veteran has not been shown to have a current right heel disability.

As noted above, the VA treatment records have demonstrated that the Veteran has been assessed with right heel pain.  However, the Board notes that mere pain, alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356  (Fed. Cir. 2001).

The Board observes that the Veteran's post-service treatment records document that the Veteran has right heel pain, but does not otherwise provide a diagnosis of a right heel disorder.  Furthermore, the August 2009 VA examiner specifically determined that there was no underlying pathologic condition of the right heel found on the current examination.   Accordingly, the medical evidence of record does not support a current diagnosis of the claimed right heel disability, in the absence of a current and chronic condition, as required under 38 C.F.R. § 3.317. 

Hence, whereas here, the competent evidence establishes that the Veteran does not have the disability for which service connection is sought, 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).  In the instant appeal, the claim for service connection for a right heel disability on a direct and secondary basis must be denied because the first criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met.

Regarding service connection for a right heel disability as due to an undiagnosed illness, as noted above, the Veteran's right heel pain, which he is competent to report, has not been attributed to any known clinical diagnoses.  The Board notes, however, that none of these symptoms became manifest during active service in the Southwest Asia theater of operations, or have become manifest to a degree of 10 percent or more through objective indications, to include signs and non-medical indicators that are capable of independent verification.  Despite the Veteran's subjective complaints of right heel pain, the evidence fails to show any significant functional loss.  

The Board notes that the January 2008 Board remand instructed the Veteran to undergo a VA examination in order to specifically determine whether he has objective indications of a chronic right heel disability that is not ascribed to a known diagnosis.  

The July 2011 Board remand noted that the January 2008 Board remand instructions had not been accomplished as the August 2009 VA examination was not responsive to the request for additional comment on the conditions the examiner noted to not have a diagnosis.

The July 2011 Board remand also noted that the grant of service connection for low back and knee disorders raised the question of whether the bilateral heel disabilities were secondary to these service-connected disabilities.  Per the July 2011 Board remand instructions, the Veteran was to undergo a VA examination to include an opinion as to whether the Veteran has heel disabilities that were cause or worsened by the service-connected back or knee disabilities and whether the Veteran has objective indications of a chronic right heel disability that is not ascribed to a known diagnosis.  However, while the Veteran underwent a VA examination in September 2011, the VA examination did not include address the Veteran's heel disabilities.  As the Board is required to ensure compliance with the instructions of it remands, the November 2012 Board remand instructed the RO to schedule the Veteran for another VA examination that included an opinion as to whether the Veteran had a heel disability that was caused by the service-connected back or knee disability.  See, Stegall, supra.

However, as noted above, while the Veteran was scheduled to undergo VA examinations for his bilateral heel and upper respiratory disabilities, the January 2013 VA examiner noted that the Veteran indicated that he did not request an appeal of his bilateral heel condition and the January 2013 VA examiner cancelled this examination upon the Veteran's request.

In this regard, the Court has again held that, "The duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood, supra.  As such, the Veteran's claim is assessed based on the evidence of record.  

As such, with respect to the issues decided herein, the Board must make its decision based on the evidence currently on file as there is no VA examination report of record for the specific determination of whether the Veteran has a chronic bilateral heel disability that is caused or aggravated by the Veteran's service-connected low back and knee disorders.  As there is no competent evidence or opinion even suggesting that a current bilateral heel disability was caused or permanently aggravated by a service-connected disability, the preponderance of the evidence is, therefore, against the claim for entitlement to service connection for a bilateral heel disability on a secondary basis as well.

Additionally, there is no competent evidence of a of a chronic right heel disability that is not ascribed to a known diagnosis, as the Board must make its decision based on the evidence currently on file as there is no VA examination report of record for the specific determination of whether the Veteran has objective indications of a chronic right heel disability that is not ascribed to a known diagnosis.

In sum, the Board finds that service connection for right heel and left heel disabilities must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

B.  An upper respiratory disability to include sinusitis

A July 1991 service treatment record noted that the Veteran had possible congestion.

A March 1992 service treatment record indicated that the Veteran had a non-productive cough and headaches

A July 1992 service treatment reflects complaints of a cough, runny nose and chills.  The assessment was a stomach virus.

A September 1992 service treatment record indicates complaints of a cough, runny nose and chills. The assessment was a possible stomach virus.

A March 1993 service treatment record noted that the Veteran had coughing, a sore throat and a runny nose.  The diagnosis was rhinitis.

In November 1993, the Veteran presented with flu symptoms.

In July 1994, the Veteran sustained trauma to his nasal bone.  X-rays were negative.

The Veteran underwent a VA examination in August 2009.  The examiner noted that there was evidence of episodic sinusitis/bronchitis during military service but there was no evidence of recurrent pulmonary or sinus infections following the Veteran's discharge from military service.  The Veteran reported that he was asymptomatic until after his return from Desert Storm.  He noted frequent episodes of sinusitis marked by nasal congestion, yellow discharge and headaches 3 to 4 times a year.  The diagnosis was alleged bronchitis/sinusitis with no medical evidence of recurrent bronchitis/sinusitis and no medical statement provided as there was no medical evidence of these conditions.

Per the July 2011 Board remand instructions, the Veteran underwent a VA examination in September 2011.  The Veteran reported that after serving in Desert Storm, he began having chronic renal congestion episodes of maxillary sinus several times a year which he attributed to nerve gas exposure in Iraq.  The diagnosis was low grade chronic rhinitis with no evidence of sinusitis.  The examiner opined that the Veteran's sinus condition was not caused by or a result of the Veteran's military service.  He noted that there was no record of sinusitis during or after service.  While the Veteran had mild congestion, there was no evidence that he was treated for this during service or indeed since then.  There was also no physiologic basis for connection between nerve gas and exposure, if it occurred and nasal/sinus disorders.

Under the circumstances of this case, the Board concludes that service connection for an upper respiratory disability to include sinusitis is not warranted.

At the outset, the Board notes that while the Veteran served in Southwest Asia, his upper respiratory complaints have been attributed to known clinical diagnoses (low grade chronic rhinitis), which is not an undiagnosed or chronic multisymptom illness.  Therefore, this disorder does not fall with the purview of the undiagnosed illness presumptive provisions under 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317.  Accordingly, the analysis progresses to the question of direct service connection for the disability.  See Combee, 34 F.3d at 1042. 

Although the Veteran complained of respiratory problems in service, the service treatment records are negative for any or diagnoses of any chronic upper respiratory disorders as the respiratory complaints were medically addressed in service, and appear to have been of an acute and transitory nature.  The August 2009 VA examiner noted that there was no evidence of recurrent pulmonary or sinus infections following the Veteran's discharge from military service.

Moreover, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current respiratory disability and the Veteran's military service.  In fact, the only medical opinion addressing the etiology of the upper respiratory disability weighs against the claim.  As indicated above, the September 2011 VA examiner opined that the Veteran's sinus condition was not caused by or a result of the Veteran's military service.  None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion.  

As noted in the November 2011 Board remand, the September 2011 VA examiner's negative nexus was based in part on the fact that that there was no evidence that the Veteran was treated for sinusitis during or after service. 

However, an opinion that relies on the absence of evidence of disability in the service treatment records, such as the lack of evidence of sinusitis in service relied upon in the above opinion, is inadequate.  See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).  Moreover, while the specific diagnosis of sinusitis may not be of record, the fact remains that upper respiratory complaints were shown in service and nasal congestion was shown at the September 2011 VA examination.  As such, and as reflected in the manner by which the issue has been expanded as listed on the title page, there is for consideration whether any upper respiratory disability [to include due to undiagnosed illness] is etiologically related to the upper respiratory complaints shown in service, even if it is the case that the specific upper respiratory diagnosis of sinusitis has not been shown.

As a result of this consideration, the Board remanded this issue for a new examination so the examiner could determine whether any current upper respiratory disability, as oppose to merely sinusitis, is related to service and so the examiner could not base the opinion solely on the absence of particular evidence of treatment in the service treatment records, but to also consider the competent history of continuity of respiratory symptoms since service.

As addressed above, while the Veteran was scheduled to undergo a VA examination for his upper respiratory disabilities, the January 2013 VA examiner noted that the Veteran indicated that he did not request an appeal of his upper respiratory disabilities and the January 2013 VA examiner cancelled this examination upon the Veteran's request.

As such, with respect to the issues decided herein, the Board must make its decision based on the evidence currently on file, as there is no VA examination report of record for the specific determination of whether the Veteran has any current upper respiratory disability, as oppose to merely sinusitis, that is related to service.  As there is no competent evidence or opinion even suggesting that a current any current upper respiratory disability is related to service, the preponderance of the evidence is, therefore, against the claim for entitlement to service connection for an upper respiratory disability encompassing sinusitis, to include any current upper respiratory disability.

In sum, the Board finds that service connection for an upper respiratory disability to include sinusitis, to include as due to an undiagnosed illness, must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

C.  All Disabilities

The Board finds that service connection is not warranted for a left heel disability, a right heel disability and upper respiratory disability to include sinusitis, to include as due to an undiagnosed illness.  In reaching these conclusions, the Board has again considered the lay evidence offered by the Veteran and his representative to VA.  This includes his and his representative's statements in which they asserted their belief that his claimed left heel, right heel and upper respiratory disability to include sinusitis are related to service to include as due to an undiagnosed illness.

A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995).  However, lay persons are generally not competent to opine as to medical etiology or render medical opinions.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example a form of cancer.").  The Veteran's statements, however, are outweighed by medical evidence showing known clinical diagnoses of left heel and upper respiratory disabilities not etiologically related to service, and the Veteran's complaints of pain are not sufficient to establish a chronic undiagnosed right heel disorder for which service connection is warranted.  The Board remanded this case to more fully ascertain the question of chronicity, but the Veteran did not appear for examination on that matter.  In light of Sanchez-Benitez, there is simply insufficient evidence to establish service connection for a right heel disorder.

As the preponderance of the evidence is against the Veteran's claims, service connection must be denied.  38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301.  



ORDER

Entitlement to service connection for a left heel disability, to include as due to an undiagnosed illness and as secondary to service-connected disability, is denied. 

Entitlement to service connection for a right heel disability, to include as due to an undiagnosed illness and as secondary to service-connected disability, is denied. 

Entitlement to service connection for an upper respiratory disability to include sinusitis, to include as due to an undiagnosed illness, is denied.



______________________________________________
A.C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs