Citation Nr: 1338331 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 06-33 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a respiratory disorder, to include sinusitis, allergic rhinitis, and deviated septum. REPRESENTATION Appellant (Veteran) represented by: The American Legion ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1971. The Veteran also served with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In September 2010, July 2012, and April 2013, the Board remanded the claim on appeal for additional development and medical inquiry. The case has been returned to the Board for further appellate review. As will be further detailed below, there has been substantial compliance with the previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Board has reviewed the entire record. No relevant evidence has been included in the claims file since the supplemental statement of the case (SSOC) dated in July 2013. FINDING OF FACT A chronic upper respiratory disorder, to include sinusitis, allergic rhinitis, and a deviated septum, was not shown in service, nor was an upper respiratory disorder shown until many years after service; and the Veteran's current upper respiratory disorders are not related to a disease or injury of service origin. CONCLUSION OF LAW A respiratory disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants of what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO sent the Veteran several communications between March 2005 and July 2006, which informed the Veteran of how to substantiate his claim and of the allocation of responsibilities between himself and VA. Although full notice was not provided to the Veteran prior to the initial August 2005 adjudication of the claim to service connection, as required by Pelegrini v. Principi, 18 Vet. App. 112 (2004), full notice was provided prior to the most recent adjudication of the claim in the July 2013 SSOC. Such development "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006). Together, and in pertinent part, these VCAA letters informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. The Board also notes that the statement of the case in July 2006 provided information regarding disability ratings and effective dates mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records (STRs) are on file. The RO included in the claims file the Veteran's VA treatment records, and pertinent private medical evidence. The Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing indicates he has identified the existence of any relevant evidence that has not been requested or obtained. Indeed, in October 2006, the Veteran declined a hearing before the Board to present evidence. The Veteran underwent VA compensation examinations into his claim in October 2010 (for which a January 2012 addendum report has been included in the record), in November 2012, and in June 2013. As indicated in previous remands, due to certain deficiencies in the reports of certain of these examinations, additional development was necessary. The June 2013 examination report is adequate for deciding the claim on appeal as the examiner reviewed the history, conducted a physical examination and provided an opinion supported by a rationale. Therefore, the Board finds that no additional development is warranted in this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied here. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service Connection This matter addresses the issue of whether a current respiratory disorder, including sinusitis, rhinitis, or a deviated septum, relates to the Veteran's service. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These provisions regarding presumptive service connection do not apply in this matter as the Veteran's respiratory disorders are not listed under 38 C.F.R. § 3.309(a). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this matter, the record establishes that the Veteran has had current respiratory disorders during the appeal period. The October 2010 VA report and its January 2012 addendum report, in addition to the November 2012 and June 2013 VA reports and private treatment records and reports dated in the early to mid 2000s, note diagnoses of sinusitis, rhinitis, and deviated septum. The record also establishes that the Veteran experienced respiratory problems during service. The Veteran's STRs include a July 1968 treatment record which shows an entry of "Sinusitis" (without any clinical findings) and an August 1969 treatment record which shows the Veteran complained of nasal congestion and mild sore throat (physical examination was negative). Furthermore, the Board has favorably considered the Veteran's statements that he experienced respiratory problems during service. He is competent to report that he felt symptoms such as discomfort and congestion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). Such statements are also considered credible and therefore probative on the issue of whether the Veteran experienced problems during service. Nevertheless, the preponderance of the evidence of record is against finding that the currently diagnosed sinusitis, allergic rhinitis, or deviated septum are related to service, including in-service complaints of sinus and nasal congestion in the late 1960s. First, the evidence dated between the Veteran's 1971 discharge from service and his 2005 service connection claim indicates that the Veteran did not incur a chronic respiratory disorder during service. A December 1970 separation Report of Medical Examination, conducted over one year after his in-service complaint of nasal congestion, is negative for respiratory complaints, and shows that clinical evaluations of the nose and sinuses were normal. In a March 1971 Statement of Medical Condition completed the month of discharge from active duty, the Veteran checked that there had been no change in his medical condition since he underwent the separation medical examination. Private medical evidence dated in the early 1980s is negative for respiratory disorders such as sinusitis and rhinitis. In a January 1983 Report of Medical History, completed pursuant to reserve service, the Veteran denied ever having or having then "sinusitis" and "hay fever." A January 1983 Report of Medical Examination, conducted in connection with National Guard service, shows that clinical evaluations of the nose and sinuses were normal. Second, the most persuasive medical opinion of record addressing the Veteran's claim to service connection finds service and the current disorders unrelated. Pursuant to the Board's April 2013 remand, the Veteran underwent VA compensation examination of his respiratory system in June 2013. In the report of record, the examiner indicated a personal examination of the Veteran and indicated a review of the Veteran's virtual claims file (i.e., the computerized file on the Veterans Benefits Management System (VBMS)). In the report, the examiner considered the Veteran's medical history and provided a medical opinion which stated clearly that the Veteran's current disorders were less likely than not related to service. Notwithstanding the representative's September 2013 criticism of the June 2013 report - that the VA examiner did not indicate a full review of the positive evidence of record - the examiner clearly stated that his opinion was based on the evidence of record which indicated that the Veteran did not have a chronic respiratory disorder during service. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ("[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file.") Accordingly, the examination report is adequate and substantially complies with the remand. The examiner noted in the rationale that there were no complaints of upper respiratory symptoms upon the separation examination and, upon examination in 1983, there was no history of ear, nose and throat trouble, no sinus trouble, no hay fever and no chronic or frequent colds. Moreover, the examiner stated that "a couple episodes of URI/sinusitis/tonsillitis do not imply [development] of chronic disease." As this opinion is based on the evidence of record, and is supported by a rationale, it is of probative value in addressing the issue of service connection. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). By contrast, and as indicated in previous remands, other medical opinions of record are not persuasive on the issue before the Board. The record contains five medical opinions (in addition to the June 2013 opinion addressed above) dated in January 2006, March 2006, October 2010, January 2012, and November 2012. The Veteran's private treating physician provided two opinions, dated in January and March 2006, which state that the Veteran's sinus disorder was at least as likely as not related to the complaints in service. However, the opinions amount to conclusory statements insofar as neither opinion is supported by a rationale, nor did they address the 1983 report of military history and physical examination report, which did not show continuing complaints or problems. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). Accordingly, they are outweighed by the more probative VA examination report of 2013. An October 2010 VA opinion, and its January 2012 addendum opinion, are similarly flawed because, viewed together, the opinions are in conflict. In the October 2010 VA report, the examiner stated that the Veteran had allergy symptoms and sinusitis in service after he went to Germany, and that the sinus trouble was caused by the weather in Germany. In the January 2012 addendum, however, another examiner wrote that the July 1968 STR noting an in-service problem was consistent with nasal allergies, which was "a condition which is not acquired but is a factor of genetic makeup and is not due to any military service time." In sum, the report and its addendum present conflicting medical findings upon which the Board could not rely. The November 2012 VA opinion is of limited probative value because it was not responsive to the Board's remand directives. The Board sought commentary regarding whether the evidence indicated that the Veteran's disorders related to service. In response, the examiner stated that the Veteran's disorders were "common and not necessarily due to his time in the service" and were "at least as likely as not to have resulted had he never been involved with military service." Finally, the Board finds the lay evidence of record similarly unpersuasive with regard to the issue of medical nexus. As indicated earlier, the Veteran is competent to attest to symptoms he may observe or sense, such as sinus or nasal congestion. See Barr, supra. But the Veteran's statements regarding diagnosis and etiology of internal pathologies such as sinusitis, allergic rhinitis, and deviated septum are of no probative value. The disorders at issue involve internal pathologies that are beyond the capacity for lay observation. Their etiology and development cannot be determined through observation or by sensation such as feeling. The Veteran is simply not competent to render a medical opinion linking the currently diagnosed upper respiratory disabilities with service many years earlier. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). He does not have the training and expertise to provide medical evidence connecting service to the current symptoms. On the essentially medical question before the Board, the medical evidence is of greater evidentiary value. And the preponderance of the medical evidence clearly indicates no relationship between the Veteran's service and his current problems. In sum, the record documents that the Veteran has been diagnosed with respiratory disorders during the appeal period, and that he complained of sinus and nasal problems during service in the late 1960s. However, the preponderance of the evidence of record indicates that the current problems are unrelated to service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, a service connection finding is unwarranted in this matter. 38 C.F.R. § 3.303. Parenthetically, the Board notes that it did inquire in this matter into whether this case presents an issue regarding aggravation of a pre-service disability. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. When no preexisting condition is noted at the time a Veteran enters service, as is the case here, the presumption of soundness arises and the Veteran is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable (i.e., undebatable) evidence that the Veteran's disability both preexisted service and was not aggravated by service. 38 U.S.C.A. § 1111. Importantly, only those conditions recorded in examination reports can be considered as "noted." 38 C.F.R. § 3.304(b). A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). In the February 1968 induction report of medical examination, the Veteran's sinuses were found to be normal. No defects other than myopia were found. It must therefore be presumed that the Veteran entered service in sound condition. 38 U.S.C.A. § 1111. However, despite the negative findings in the induction report of medical examination, certain evidence of record warranted inquiry into whether clear and unmistakable evidence existed that the Veteran had a pre-service sinus disorder. Specifically, the Veteran reported in his February 1968 induction report of medical history that he experienced frontal headaches; he reported chronic headaches in a February 1980 private treatment record; and the January 2012 VA addendum report indicated that the Veteran's nasal allergies were a factor of genetic makeup. As such, the Board requested medical inquiry regarding whether this evidence could be construed as clear and unmistakable evidence of a pre-service respiratory disorder such as sinusitis. In the June 2013 VA medical report, the examiner expressly found that the Veteran did not have a pre-service respiratory disorder (i.e., sinusitis, allergic rhinitis, or deviated septum). This finding is not challenged by any other evidence of record. Hence, the evidence does not indicate by clear and unmistakable evidence that a respiratory disorder preexisted service. The presumption that the Veteran's respiratory system was sound upon entry into service applies in this matter. Further inquiry into whether a pre-service respiratory disorder was aggravated during service is therefore unwarranted. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306. ORDER Entitlement to service connection for a respiratory disorder, to include sinusitis, allergic rhinitis, and deviated septum, is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs