Citation Nr: 1333341 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-19 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a sinus disability, to include as secondary to service-connected migraine headaches. REPRESENTATION Veteran represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served in the Naval Reserves with periods of active duty including from July 2003 to January 2004, and from March 4, 2006 to April 10, 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In her February 2010 notice of disagreement the Veteran requested a hearing; in a statement received in March 2010 she withdrew the request. In October 2012, the case was remanded for additional development. FINDING OF FACT It is not shown that the Veteran has, or during the pendency of this claim has had, a chronic sinus disability. CONCLUSION OF LAW Service connection for a sinus disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of her claim prior to its initial adjudication. An October 2009 letter explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing, and informed her of disability rating and effective date criteria. She has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and identified postservice treatment records (for which further authorization was not necessary) have been secured. Pursuant to the October 2012 Board remand, and by November 2012 letter, the Veteran was asked to provide authorizations for the release of treatment records from Ashford Presbyterian Community Hospital (from July 2003 to July 2004) and CentraCare Clinic, River Campus. In December 2012, she submitted incomplete authorizations. She was notified by a February 2013 letter that the authorizations were incomplete, and was asked to submit completed authorizations. She did not respond. Such evidence cannot be obtained without the Veteran's cooperation (by providing complete information and authorization for release of records). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist in developing the facts and evidence pertinent to a Veteran's claim is not a one-way street). Pursuant to the October 2012 remand, the RO attempted to secure a copy of an April 4, 2010 evaluation by the Brainerd VA medical center (VAMC). The RO was advised that there are no records of evaluation or treatment of the Veteran on that this date. An April 2013 formal finding of unavailability is associated with the claims file. The RO arranged for VA examinations in November 2009, August 2010, and December 2012. The Board finds that the examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability at issue to provide probative medical evidence adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Legal Criteria, Factual Background and Analysis At the outset, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Service connection may be granted for disability resulting from an injury sustained or a disease contracted while on active duty in the military. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 . When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran alleges she has a sinus disability which began while she was on active duty in Puerto Rico from July 2003 to January 2004. STRs for this period show the Veteran was seen (on a single occasion) for nasal discomfort. A sinus headache/migraine headache was diagnosed and medications, including Flonase and Naproxen, were prescribed. On an August 2004 post-deployment health assessment (following her return from Puerto Rico), the Veteran noted that her health stayed the same or got better while deployed and that she was seen at sick call twice. She denied all symptoms including runny nose and headache, and stated that her health was in excellent condition. The earliest postservice evidence of sinus-related complaints is a December 2005 treatment record showing the Veteran sought treatment for earache, cough, congestion, and nonpurulent sinus drainage. On examination, there was no sinus tenderness. Cerumenosis and an upper respiratory infection were diagnosed. There is no further mention of sinus complaints until a November 2009 VA examination, when the examiner noted the STR notations of slight erythema with mild sinus tenderness, and that Flonase and Naproxen were prescribed. The Veteran reported a history of occasional nasal allergies, and current symptoms of headaches, sinus pain, and sinus tenderness. The examiner found that there was no evidence of sinus disease; no nasal obstruction; no nasal polyps; no septal deviation; no permanent hypertrophy of turbinates; no tissue loss, deformity, scarring or deformity of the nose; and no evidence of Wegeners granulomatosis. No diagnosis was provided. The Veteran was also evaluated for migraines; the examiner explained that some patients with migraine headaches complain of nasal stuffiness with onset of headache. In December 2009, in connection with a claim for Social Security Disability benefits, the Veteran underwent a medical evaluation and reported a history of sinus problems. On February 2010 new patient examination at a VA Medical Center, the Veteran reported migraines that began as sinus pressure. On examination, she reported sinus tenderness. No sinus disability was diagnosed. A March 2010 CT scan found no evidence of sinusitis. Minimal mucus retention cyst formation in the inferior maxillary sinuses was shown. There was no evidence of significant mucosal thickening, and no fluid levels seen. A mild rightward nasal septum deviation was noted of approximately 5 millimeters; and the bony orbits and other visualized facial bones were unremarkable. April 2010 vocational rehabilitation documents show the Veteran complained of significant pressure in her nose, forehead, and under her eyes. On August 2010 VA general medical examination, the Veteran noted nasal stuffiness during migraines. There were no episodes of sinusitis during the preceding twelve month period. Sinus examination was normal. On December 2012 examination, the Veteran reported developing pain and pressure across the bridge of her nose and across both the frontal and maxillary sinuses, along with migraines while deployed to Puerto Rico. There was generally no nasal discharge accompanying the pain, but she reported almost continuous nasal congestion. The examiner noted that diagnostic tests (x-ray, CT, MRI) were all negative for a chronic sinus problem. On examination, no diagnosis was provided. It was noted the Veteran did not currently have (and had not in the past had) a diagnosis of a sinus disability. A contemporaneous x-ray of the sinuses was normal. The examiner concluded that there were no objective findings to support a diagnosis of a sinus condition. All complaints were subjective, and that the Veteran's severe sinus pressure and pain occurred with or without migraine involvement. The examiner opined that the claimed sinus disability was less likely than not incurred in or caused by her service, because there was no sinus condition. The examiner further opined that because there was no sinus disability such disability was less likely than not proximately related to the Veteran's service-connected migraine headaches. The Veteran has provided numerous statements to the effect that she suffers severe sinus pain and pressure which often result in migraines. In an October 2010 statement, she stated that she feels such pain and pressure daily. The threshold question that must be addressed here, as in any claim seeking service connection, is whether the Veteran indeed has the disability for which service connection is sought (i.e., sinusitis). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that a current disability may be shown even though such resolved during the course of the claim as long as the Veteran had a chronic disability at the time the claim was filed or during the pendency of the claim. While it may reasonably be conceded (for the purpose of this appeal) that the Veteran experienced nasal discomfort in service, and received an assessment of a sinus/migraine headache, there is no evidence that a chronic sinus disability was manifested in service. Of even greater significance is that the record does not show that the Veteran now has, or at any time during the pendency of this claim/appeal has had, a sinus disability. November 2009, August 2010, and December 2012 VA examinations each found no evidence of such disability. On November 2009 examination the Veteran's subjective complaints of sinus pain and pressure were attributed to her service-connected migraine headaches, not to a separate disability. The Veteran had reported treatment for sinus complaints (records of which might have substantiated a critical element of her claim). However, on remand she did not respond to a request for fully-completed authorizations for VA to secure the records of the treatment. The logical inference from her lack of co-operation is that either the records do not exist or that they do not support her claim. The Board notes the Veteran's continuing complaints of sinus pain and pressure. However, while she is competent to report symptoms she experiences, including sinus pain, pressure and congestion, whether or not such symptoms reflect an underlying chronic sinus disability is a medical question beyond the capability of her lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Absent competent evidence of a medical diagnosis of a sinus disability, there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in this matter must be denied. ORDER The appeal seeking service connection for a sinus disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs