Citation Nr: 1336220	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  09-39 179	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for allergic rhinitis and sinusitis.

2.  Entitlement to service connection for asthma.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Hudson, Counsel


INTRODUCTION

The Veteran had active service from December 1995 to December 1999.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of August 2008, which denied service connection for sinusitis and asthma, and November 2009, which denied service connection for allergic rhinitis.  

In May 2013, the Veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing).  At that time, it was decided to consolidate the three issues into one issue, under the umbrella of a chronic upper respiratory disorder.  However, upon a more comprehensive review of the record, the Board finds that there are significant factual distinctions which warrant the separation of asthma from sinusitis and allergic rhinitis, and the issues have been characterized accordingly.  

The issue of service connection for asthma 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.


FINDING OF FACT

Allergic rhinitis and sinusitis are shown to be chronic, and had their onset while Veteran was on active duty.


CONCLUSION OF LAW

Allergic rhinitis and sinusitis were incurred in active service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In view of the favorable outcome of this appeal as to the issue decided herein, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013)) need not be discussed. 

Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, 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 service connection, there generally must be medical or, in certain circumstances, lay evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation).  Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Here, VA treatment records dated from May 2009 to October 2012 show treatment for chronic allergic rhinitis and sinusitis.  When seen to establish care in May 2009, the treatment provider referenced a computerized tomography (CT) scan of May 2007 which showed minimal thickening of the maxillary sinuses.  A CT scan was obtained in June 2009, which showed minimal mucoperiosteal thickening in the floors of the maxillary antra.  Sinusitis and/or allergic rhinitis have been shown on multiple subsequent occasions, most recently in October 2012.  In May 2011, it was noted that he had chronic sinusitis, allergic rhinitis, and frequently had several episodes a year of acute infective sinusitis.  The assessment was that he still had "chronic rhinitis sinusitis" with frequent exacerbations, worse in the current weather.  Thus, current disability is shown.  

Concerning in-service incurrence, service treatment records show that the Veteran had rhinorrhea in January 1996.  In December 1996, he was seen complaining of a sore throat and nasal congestion, and was diagnosed as having sinusitis and an upper respiratory infection.  In November 1997, he was found to have sinusitis and pharyngitis.  In April 1998, he was found to have sinusitis, with symptoms including tenderness to palpation over the frontal sinusitis and boggy turbinates.  Later that month, he complained that he still had sinus pain, cough, and head and body aches.  The assessment was acute sinobronchitis.  A magnetic resonance imaging (MRI) scan of the brain in October 1998 revealed minor ethmoidal sinusitis.  In October 1999, he reported a history of allergies and sinus problems.  Thus, although allergic rhinitis was not diagnosed in service, he was treated for sinusitis on multiple occasions.  

The remaining element is whether there is a nexus between current allergic rhinitis and sinusitis, and in-service symptoms diagnosed as sinusitis.  After the Veteran was discharged from active duty, he joined the Air National Guard in January 2000, and National Guard service treatment records show that sinusitis was noted in September 2000.  Records of treatment at Kelsey-Seybold clinic show that in August 2001, chronic allergic rhinitis was noted.  Sinusitis was noted in September 2003, and a sinus infection in April 2004.  Other private treatment records show sinusitis in November 2005, January 2006, and Marcy 2007; chronic sinusitis and allergic rhinitis in April 2007; CT scan evidence of mild sinusitis in May 2007; and sinusitis in August 2008.  

A VA examination in June 2008 noted a history of allergic rhinitis which began in 1997, and over the next 11 years, the Veteran had recurrent episodes of allergic rhinitis, as well as episodes of maxillary sinusitis.  X-rays of the sinuses at that time were normal, and the examiner diagnosed chronic allergic rhinitis and episodes of acute sinusitis.  

The Veteran's VA primary care provider noted, in September 2009, that the Veteran had a long history of allergic rhinitis, with periods of increased problems with a sinus infection.  She said that she explained to the Veteran that the underlying condition was rhinitis would sometimes become a sinus infection.  He also had nasal polyps and a productive cough.  At that time, the nasal mucosa were red and boggy, and he had discomfort in the maxillary sinuses.  A February 2010 note similarly related that if the Veteran did not perform the irrigations to keep on top of his allergic rhinitis, he ended up with sinus infections.  

In a letter dated in May 2013, the same care provider wrote that she had treated the Veteran since May 2009, at which time he had a history of allergic rhinitis that developed into chronic sinusitis as a result of the chronic inflammation.  Frequently, he had acute sinusitis on top of chronic sinusitis.  She said that given that nature of these health problems, it was more likely than not that the allergic rhinitis and sinusitis were extensions of the same process.  Noting the service treatment records of sinusitis, she said that in most cases, there was an irritant and resultant swelling, inflammation and mucous production.  Failure to drain the secretions resulted in acute and later chronic sinusitis, which she said had been noted on imaging in 1998, 2003, 2007, and 2009.  She concluded that rhinitis and sinusitis started in the military and had continued since, and the conditions were more likely than not related.  

The Veteran also testified at his May 2013 Board hearing concerning continuity of symptomatology since the in-service onset of his symptoms.  The Board acknowledges that chronic sinusitis and allergic rhinitis are not chronic diseases under 38 C.F.R. § 3.309(a), and, as such, service connection cannot be established by continuity of symptomatology under 38 C.F.R. § 3.303(b).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, the Board may not categorically reject lay evidence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition, when 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 this case, a medical professional has provided a medical nexus opinion, based not only on the Veteran's history, but also a review of the records.  

The Board must assess the credibility and weight of all the 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.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006).  The Board finds the testimony and statements concerning the in-service onset of pertinent symptoms to be credible.  When considered together with the multiple instances of treatment for sinusitis during and after service as well as the unopposed medical opinion linking allergic rhinitis to sinusitis, and both to service symptoms diagnosed at the time as sinusitis, the Board concludes that service connection is warranted is warranted for sinusitis and allergic rhinitis.  In reaching this determination, the benefit-of-the-doubt rule has been applied.  38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for sinusitis and allergic rhinitis is granted.


REMAND

The Board finds that further development is needed concerning the issue of service connection for asthma.  

The Veteran's treating provider opined that his asthma and allergic rhinitis are related because they are both reactive airways diseases.  Such seems to support the establishment of service connection on a secondary basis.  See 38 C.F.R. § 3.310 (2013); Allen v. Brown, 8 Vet. App. 374 (1995).  However, notwithstanding the lack of sufficient explanation of how the Veteran's asthma and allergic rhinitis are related, there is the greater question of whether there is evidence that the Veteran suffers from asthma.

In this regard, service treatment records contain no mention of asthma, and when mentioned in the Veteran's initial evaluation for VA treatment in May 2009, the Veteran reported that he had been "recently" diagnosed with asthma by his private doctor, who had put him on an inhaler in 2007.  Indeed, the first mention of asthma was in April 2007, when the Veteran was seen in Swedish Southwest ER for dyspnea; at that time, he stated he had not previously had similar symptoms.  In the course of work-up, the physician noted that he considered asthma to be unlikely as a cause of dyspnea in the Veteran.  Although he was provided with a nebulizer at the time, it was noted that there may be some occult bronchospasm due to recent viral illness, and that he felt improved with the nebulizer.  When evaluated by N. Picerno, M.D., in April and May 2007, the past health history, provided by the Veteran, was noted to include "asthma, maybe."  

Notably, a June 2008 VA examination-conducted in between the purported diagnosis and the May 2009 notation of that history-did not include history or findings of asthma.    The examination revealed the chest to be clear to auscultation, and no wheezes, crackles, or rhonchi were heard.  

Thus, the Veteran's current diagnosis of asthma is based entirely on his reported history, and his reported symptoms.  The history is not supported by the available evidence.  The evidence also tends to contradict the Veteran's statements that asthma was diagnosed prior to May 2009.  It should be emphasized that the Board does not believe this to be an intent on the part of the Veteran to mislead.  An honest witness may nevertheless be mistaken as to the facts.  

Additionally, the Board has been unable to locate any record of actual clinical findings of asthma.  For example, in September 2009, he reported wheezing, but examination revealed the chest to be clear to auscultation, bilaterally, and eupneic.  

Because the diagnosis initially rested on a questionable foundation, with no subsequent positive findings to confirm the diagnosis, the Board finds that a VA examination must be provided.  




Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran of the information required to substantiate a claim based on secondary service connection; i.e., that service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder.  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  

2.  Obtain all VA treatment records dated from November 2012 to the present.

3.  Then, schedule the Veteran for an appropriate VA examination to determine, first, whether the Veteran has asthma, or had asthma at any time between October 2007 and the present.  All indicated studies should be undertaken, and the results reviewed, prior to the final opinion.  Then, regardless of whether asthma is found to be present on the examination, provide an opinion as to the following:  

* Whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that asthma, noted in VA treatment records beginning in May 2009, had its onset in service; 

*  Whether it is at least as likely as not that asthma is proximately due to or aggravated by the Veteran's sinusitis and/or allergic rhinitis.  The term "aggravated" in this context refers to a permanent worsening, beyond the natural progress, 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 found, the examiner should identify the baseline level of severity of the asthma which existed prior to the aggravation, to the extent possible. 

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

4.  After assuring compliance with the above development, as well as with any other notice and development action required by law, review the claim for service connection for asthma, on both a direct and secondary (including by aggravation) basis.  If the claim is denied, the Veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board.

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 A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs