Citation Nr: 1332360 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 07-30 895A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a chronic disability manifested by recurrent episodes of headaches, facial pain, sinus congestion, and rhinorrhea, (claimed as sinusitis and allergic rhinitis, to include as due to an undiagnosed illness). 2. Entitlement to service connection for a chronic left knee disability (to include as due to an undiagnosed illness). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served over 20 years of active duty in the United States Marine Corps from August 1982 to August 1985 and from October 1986 to August 2006. His military records reflect service in Southwest Asia and his decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claims of entitlement to service connection for a chronic disability manifested by recurrent episodes of headaches, facial pain, sinus congestion, and rhinorrhea (claimed as sinusitis and allergic rhinitis, to include as due to an undiagnosed illness) and a chronic left knee disability (to include as due to an undiagnosed illness). In March 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development. Following this development, the denials of the aforementioned claims were confirmed in an April 2012 rating decision/supplemental statement of the case. The case was then returned to the Board in May 2012 and the Veteran now continues his appeal. For the reasons that will be discussed in the REMAND portion of the decision below, the issue of entitlement to service connection for a chronic left knee disability is REMANDED to the RO/AMC. The Veteran and his representative will be notified by VA if any further action is required on their part. FINDINGS OF FACT 1. The Veteran has presented a credible historical account of onset of a chronic disability manifested by recurrent episodes of headaches, facial pain, sinus congestion, and rhinorrhea during active service. 2. The clinical evidence attributes the Veteran's constellation of symptoms that include recurrent episodes of headaches, facial pain, sinus congestion, and rhinorrhea, to his period of military service and associates it with a diagnosis of Sluder's headache. CONCLUSION OF LAW A chronic disability diagnosed as Sluder's headache was incurred during active duty. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's claim of entitlement to service connection for a chronic disability manifested by recurrent episodes of headaches, facial pain, sinus congestion, and rhinorrhea is being granted in full. Therefore, the Board finds that any error related to VA's duties to notify and assist under the Veterans Claims Assistance of Act of 2000 (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) with regard to the claim is rendered moot by this fully favorable decision. Service connection basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. This may be accomplished by affirmatively showing inception during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's service treatment records are silent with regard to complaints, treatment, or diagnosis of a chronic disability manifested by recurrent episodes of sinus congestion, rhinorrhea, facial pain, and headaches. Such is simply not shown. There are records showing occasional treatment for acute upper respiratory infections with associated congestion. Moreover, and of significant import, the Veteran has presented statements to examining clinicians during VA examinations conducted in May 2007 and May 2011 indicating onset of recurring episodes of sinus congestion, rhinorrhea, facial pain, and headaches beginning in service in approximately 1994. There is nothing in the record that causes the Board to question the veracity of these statements. Thus, while the Veteran advances multiple theories of service connection for this disability, including as manifestations of sinusitis and allergic rhinitis, or as due to undiagnosed illness associated with his service in Southwest Asia, the Board's review of the pertinent clinical evidence as discussed below indicates that the Veteran's constellation of symptoms represents a diagnosable headache syndrome that had its onset during his period of active duty. The Board takes special note of the VA examination in May 2007, in which the examining physician reviewed in its entirety the Veteran's relevant medical history as contained in his claims folder. The examination report reflects that the Veteran related a history of onset of a "reverse sinus squeeze" during military diving school in 1994, and that ever since then he has developed a tendency to experience recurring episodes of sinus congestion with right mid-facial pain and migraine-like headaches situated around his right eye and rhinorrhea (manifested by clear fluid flowing out his nose when he leaned forward). The frequency of these episodes was reported to be approximately 2 - 3 times per month, on average. He reported, and his service treatment records acknowledge at the time of his entry into active duty, that he had nasal septoplasty to repair a deviated nasal septum at age 18, prior to entering active duty, with no complications arising from this procedure then or thereafter. The examiner also noted the Veteran's history of chronic sleep apnea, which is presently service connected and rated as 50 percent disabling. However, the examining physician opined that the septoplasty did not result in any disabling residuals and did not indicate that the septoplasty or the sleep apnea was associated with the recurrent episodes of congestion, facial pain, and headaches that form the basis for the current VA compensation claim. Physical examination revealed some mild septum bowing to the right, with no evidence of allergic or vasomotor rhinitis or nasal polyps. Imaging studies revealed incidental mucous retention cysts or polyps on the floor of the Veteran's right maxillary sinus and the septum of his left sphenoid sinus. However, the examining physician opined that these findings were not of clinical significance and did not explain the Veteran's symptoms as they relate to his present claim. In the May 2011 VA examination report, and in a June 2011 addendum that incorporated the examiner's review of the Veteran's claims file, the examining physician presented the following opinions, which state in pertinent part: Perhaps the most significant aspect of this evaluation is the [Veteran's] historical description of the "reverse sinus squeeze" in diving school in 1994 that seemed to start this pattern of recurring, well-localized symptoms. I feel that this continuing problem is attributable to service [emphasis added], but cannot be clearly attached to any known clinical diagnosis. I would consider an old headache diagnostic category of facial neuralgia, sometimes known as a Sluder's headache. It is thought to have a "trigger" mechanism that arises in the nasal passageway. Some of [the Veteran's] symptoms fit with this. This seems to have become a chronic disability for him. This does not appear to have any connection with his service in the Persian Gulf War. I am not [of the opinion] that [the occasions of treatment in service for sinus infections shown in the Veteran's service medical records] represented anything more than upper respiratory infections, which often includes a degree of acute sinusitis. There is clearly no underlying chronic sinusitis. The Board has considered the May/June 2011 opinion of the VA physician discussed above. The physician has essentially determined that the incidences of treatment during active duty for upper respiratory infections with a sinusitis component represented acute and transitory illness that did not result in any chronic disabling pathology. He further found no association between the Veteran's current complaints of recurring episodes of sinus congestion, rhinorrhea, facial pain, and headaches with his service in Southwest Asia. Nevertheless, based on the Veteran's historical account of onset of these symptoms during active duty in 1994 following a "reverse sinus squeeze" in diving school, the VA physician expressly linked this constellation of symptoms to the Veteran's military service. The Board does not find anything in the record to refute the Veteran's historical account and thusly finds it to be credible for purposes of establishing onset and continuity of such symptomatology to his period of service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is true that the VA physician's opinion states at first that the Veteran's constellation of symptoms of headaches, facial pain, sinus congestion, and rhinorrhea cannot be clearly attached to any known clinical diagnosis. However, in the same opinion the Board is able to extrapolate from his language that he broadly associates these with a category of facial neuralgia known by the diagnosis of Sluder's headache. Thus, as the evidence is in relative equipoise regarding the underlying diagnosis, the appellant will be afforded the benefit of the doubt. His claim for VA compensation for Sluder's headache, as a chronic disability manifested by recurrent episodes of headaches, facial pain, sinus congestion, and rhinorrhea, is therefore granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for Sluder's headache is granted. REMAND The Board notes that the Veteran is presently service connected for a right knee disability that is diagnostically rated as a bone spur of his right patella (rated 10 percent disabling) and bilateral heel spurs (each rated noncompensable). With regard to the Veteran's claim of entitlement to service connection for a chronic left knee disability, the most recent VA orthopedic examination of record, conducted in May 2011, has presented a diagnosis of chondromalacia patella of the left knee, manifested by functional limitation due to pain, pain on use, and subjective sensations of knee joint instability. The examination report has presented an opinion addressing the relationship of this left knee disability to the Veteran's military service on a direct basis. Regrettably, and by no fault of the examiner, the report did not address the question as to whether the left knee disability is secondary to the service-connected bone spur of the right patella and/or the bilateral heel spurs, including whether these service-connected disabilities aggravated (i.e., permanently worsened beyond its normal progression) an erstwhile non-service-connected left knee disability. Additionally, the Veteran's claims file on the VBMS and Virtual VA electronic databases does not include any clinical record or opinion addressing the question of aggravation of the left knee disability by a service-connected disability. The United States Court of Appeals for Veterans Claims (Court) has held that, as a component of VA's duty to assist a claimant, VA must discuss all theories of entitlement raised in the record, either by the claimant or in the medical evidence. Robinson v. Mansfield, 21 Vet. App. 545, 550-552 (2008). Given that the record establishes that the Veteran is presently service connected for orthopedic disabilities of his right knee and both heels, this reasonably raises the possibility that his left knee disability may be the result of chronic alterations of his gait due to, or in accommodation of the right knee and bilateral heel disabilities, or that such gait alterations may otherwise aggravate his left knee disability if it is determined that it is not directly or secondarily related to service. Therefore, in the absence of clinical evidence that objectively addresses these questions, this matter should be remanded to the RO/AMC for a VA examination, or at the very least an addendum by the clinician who examined the Veteran's left knee in May 2011, to obtain a clinical opinion in this regard. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. To the extent possible, the Veteran's claims file should be provided to the VA examiner who conducted the May 2011 medical examination or to an appropriate clinician to obtain an addendum to this examination report. Otherwise, if deemed necessary, the Veteran should be scheduled for a medical examination by the appropriate clinician that specifically addresses his left knee disability and its relationship with his service-connected right knee and bilateral heel disabilities. All tests and studies deemed appropriate by the examiner should be performed. The Veteran's claims file must be made available to the examining clinician, who must state in his/her report that the Veteran's claims file was reviewed in conjunction with this examination. Thereafter, the clinician must provide an opinion, presented in the context of the medical record, with complete supportive rationales, addressing the following question: Is at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed chondromalacia patella of his left knee is caused by, or aggravated by, his service-connected bone spur of his right patella and/or bilateral heel spurs? The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the disorder (i.e., a baseline) before the onset of the aggravation. A rationale for the requested opinion shall be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so. In so doing, the clinician shall explain whether the inability to provide an opinion is the result of a need for additional information or that he /she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The Veteran is hereby advised that failure to report for a scheduled VA examination, without good cause, may have adverse consequences for his claim. 2. After the above opinion has been obtained, the RO/AMC shall readjudicate the Veteran's claim of entitlement to service connection for a chronic left knee disability (to include as due to an undiagnosed illness), in consideration of the additional evidence obtained. The service connection theories that the RO/AMC must address in its readjudication must include service connection on both a direct basis and as secondary to the aforementioned service-connected disabilities. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case and provided with sufficient opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Board intimates no opinion as to the outcome in this case by the action taken herein. The appellant has the right to submit additional evidence and argument on the matter 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 A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs