Citation Nr: 1339201 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-43 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disabilities. ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to March 1973 and from February 1974 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and May 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been remanded by the Board on two previous occasions, in March 2011 and December 2012, for additional development, and obtained a medical opinion from the Veterans Health Administration (VHA) in August 2013. The case now returns for final appellate review. In August 2013, the Board provided a copy of the VHA opinion and informed the Veteran that he had 60 days from the date of the letter to review the opinion and submit any additional evidence or argument. He was specifically informed that, if he submitted additional evidence, he had the right to have such reviewed by the agency of original jurisdiction (AOJ) or he may waive his right to AOJ consideration of the newly submitted and request that the Board proceed with the adjudication of his appeal. (Emphasis added). In October 2013, the Veteran submitted additional argument in support of his claim. He did not submit any additional evidence. While he specifically indicated that he did not waive AOJ consideration of such argument, the Board finds that the Veteran's argument is duplicative of arguments previously considered by the AOJ regarding his belief that he experienced sinusitis during service, as well as his dissatisfaction with how his claim is being handled by VA. See statements from Veteran dated April 2013 and June 2013. As such argument is duplicative and the Veteran has not submitted any additional evidence, the Board finds there is no need to refer this argument to the AOJ for initial consideration. See 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board will proceed with adjudication of the Veteran's appeal. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals VA treatment records dated through January 2013, which were considered by the AOJ in the August 2012 and April 2013 supplemental statements of the case. The remainder of the documents in the Virtual VA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. In April 2013, prior to the promulgation of a decision in the appeal, the Veteran submitted a written statement withdrawing his appeal as to the issue of entitlement to service connection for a left knee disorder. 2. Sinusitis is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran regarding the issue of entitlement to entitlement to service connection for a left knee disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Sinusitis was not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for a Left Knee Disorder The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal with respect to his claim for service connection for a left knee disorder in an April 2013 statement. Specifically, he indicated that he conceded such issue. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal pertaining to this issue and it is dismissed. Service Connection for Sinusitis VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter sent to the Veteran in March 2009, prior to the initial unfavorable AOJ decision in May 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The letter also informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of private and VA treatment. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. In addition, a review of the Virtual VA paperless claims processing system includes additional VA treatment records dated from August 2011 to July 2012 that were considered in the supplemental statements of the case issued in August 2012 and April 2013. The Board notes that the Veteran was also provided with two VA medical examinations in conjunction with this appeal, in April 2009 and May 2011, and VA obtained an addendum opinion in January 2013 and a VHA opinion in August 2013. The Board finds that such VA examination and opinions are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. As indicated previously, this case has been remanded in March 2011 and December 2012 in order to obtain additional VA treatment records and obtain VA examinations and opinions so as to determine the nature and etiology of the Veteran's sinusitis. Subsequent to such remand orders, the AOJ obtained VA treatment records dated through January 2013 and VA examinations and opinions in May 2011 and January 2013. Therefore, the Board finds that the AOJ has substantially complied with the March 2011 and December 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Indeed, VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, sinusitis is not considered a chronic disease per VA regulations. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for sinusitis. He has asserted that his current diagnosis of sinusitis is related to the sinus infections and other sinus issues he experienced during service. Review of the record reveals the Veteran has been diagnosed with sinusitis, as reflected in multiple VA treatment records and the April 2009 VA examination report. See VA treatment records dated December 2001, April 2002, July 2002, February 2004, May 2005, January 2008, January 2009, and April 2009. The Veteran's service treatment records (STRs) show that he sought treatment for sinus-related problems on multiple occasions during service. In January 1973, the Veteran reported for treatment complaining of a sore throat, insomnia, congested sinus, and a headache. While no diagnosis was given at that time, he was treated with gargles and Histapan D. In February 1975, the Veteran complained of sinus congestion, which resulted in impressions of upper respiratory infection, sinusitis, and viral syndrome. He was treated with Actifed and other medications and was told to return to the clinic if necessary. He was seen for a follow-up and diagnosed with bronchitis, after which he was placed on Ampicillin and Actifed. The Veteran also reported having problems sleeping due to a cough, for which he was given Robitussin. In June 1975, the Veteran complained of sinuses, constipation, and upset stomach of one week duration. The impression was sinusitis and constipation and he was treated with Dimetapp and Ducolax. The STRs do not contain any additional or subsequent complaints, treatment, or diagnoses of sinus-related problems. Nevertheless, the Veteran has reported that he continued experiencing sinus issues after discharge from service. Despite the Veteran's lay assertions of continuity of symptomatology, the first post-service evidence of treatment or diagnosis of sinusitis is dated in December 2001. In this regard, the Veteran has reported that he received treatment from a private physician in 1996 and 1997, but records from such treatment are not available because they were expunged. Nevertheless, as noted, review of the record reveals that VA clinicians diagnosed the Veteran with sinusitis as early as December 2001. The Board notes, however, that, while the Veteran's diagnosis of sinusitis has been continued throughout this appeal, sinus x-rays conducted during the pendency of this claim - i.e., since March 2009, have been normal. See January 2009 sinus x-ray report; see also August 2013 VHA opinion. As noted above, the Veteran was afforded two VA examinations in conjunction with this claim. In April 2009, a VA physician reviewed the claims, interviewed the Veteran, and conducted a physical examination, which resulted in a diagnosis of sinusitis; however, the examiner stated she was unable to resolve the issue of etiology without resorting to mere speculation. She, however, noted that "chronic rhinosinusitis is a heterogeneous group of disorders that, in the past, lacked a clear definition and was approached differently by various specialties." The examiner indicated that, therefore, the Veteran's past documented diagnosis was the same condition that is currently reported. She stated that, on one of the two occasions sinusitis was documented in the record, a subsequent note stated that the diagnosis was actually bronchitis. In May 2011, the VA examiner found no objective evidence of sinusitis and, thus, did not offer a medical nexus opinion. In January 2013, a VA examiner opined that the Veteran's sinusitis is less likely than not incurred in or caused by an in-service injury, event, or illness, including the in-service treatment for sinusitis; however, the Board finds such opinion to be inadequate because the examiner did not consider the competent lay evidence of continuity of symptomatology after service. Instead, the examiner noted that, while there was a diagnosis of sinusitis in June 1975, there is no evidence of chronic symptoms related to chronic sinus disease during service, as he noted there is one acute and merely isolated episode of sinusitis in service, which resolved without sequelae. He also noted there is no evidence of sinus problems between 1975 and 2001, despite the competent lay evidence of continued sinus problems during and after service. Therefore, in June 2013, the Board referred the case to VHA for an opinion from a specialist. In August 2013, an otolaryngologist from VHA reviewed the claims file and opined that it is less likely than not that the Veteran's sinus complaints are related to his military service. In making this determination, the VA physician noted the Veteran was treated for two random upper respiratory infections in service, which were separated by a two-year period. The VA physician also noted that, while the Veteran has complained of sinus symptoms, he was not treated again for sinus symptoms until 1997, approximately 20 years later. In rendering his opinion, the VA examiner also noted that, while the Veteran has received yearly treatment for sinus problems since 2000, his most recent sinus x-rays are normal with no evidence of chronic sinusitis, noting that normal sinus x-rays - as shown in 2003 and 2009 - are inconsistent with a diagnosis of chronic sinusitis. The VA physician ultimately opined that it is highly unlikely that two random upper respiratory infections 20 years earlier could be in a causal relationship with his symptoms and treatments, further noting that the more recent sinus x-rays rule against a diagnosis of chronic sinusitis. The examiner finally noted there is insufficient evidence to establish chronicity of problems relating back to military service. Ultimately, the August 2013 VA physician opined that the Veteran's current sinusitis is not likely related to his military service, as a 20-year period elapsed between the time the Veteran was treated for sinusitis during and after service and, most importantly, the current normal sinus x-rays are not consistent with a finding of chronic sinusitis. The August 2013 VHA opinion is considered the most probative evidence of record with respect to whether the Veteran's current sinusitis is related to military service as such is based upon the objective evidence of record, including specifically the April 2009 VA examination. Additionally, the August 2013 VHA physician also considered the Veteran's lay statements, as he noted the Veteran's complaints of sinus symptoms, and reviewed the claims file. Moreover, there is no indication or allegation that he was not fully aware of all relevant facts in this case or that he misstated any relevant fact. The opinion is also supported by a complete rationale. Indeed, the VA physician provided a discussion of the Veteran's medical history during and after service, noting that, despite the evidence of post-service complaints and continued treatment for sinus problems since 2000, the recent, normal sinus x-rays rule against a finding of chronicity. The opinion is also supported by the other evidence of record, inclusive of the service and post-service treatment records, which the VA physician opined do not support a finding of chronicity related to the Veteran's military service, as the two in-service infections were separated by a two year period, he did not receive treatment for sinus problems for 20 years after service, and the current findings sinus x-rays are negative. Therefore, the Board affords great probative weight to the August 2013 VHA opinion. See Nieves-Rodriguez, supra; Stefl, supra. There is no medical opinion to the contrary. The Board has considered the Veteran's lay assertions of a nexus between his current sinusitis and service. In this regard, the Veteran is competent to report his sinus symptoms, as they are capable of lay observation and report. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). However, sinusitis is not a condition that is generally capable of lay observation but, instead, requires clinical evaluation and diagnosis by a medical professional. Specifically, the diagnosis of sinusitis requires specialized testing, i.e., an X-ray, and the interpretation of such results. Moreover, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As a result, the determination as to the presence and etiology of sinusitis is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, the question of the relationship between the Veteran's sinusitis and service is not a simple medical question and it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between his sinusitis and service. In addition, the Veteran has only offered conclusory statements regarding the relationship between his military service and sinusitis, while the August 2013 VA physician took into consideration all the relevant facts in providing his opinion, which was based upon his review of relevant facts in this case, as well as his medical expertise. As such, the Veteran's statements regarding a nexus between his sinusitis and military service are not considered competent or probative evidence favorable to his claim and are outweighed by the medical opinion provided by the August 2013 VA physician. The Board has also considered the Veteran's statements that he has experienced a continuity of symptomatology related to his sinusitis since service. However, as indicated previously, sinusitis is not considered a chronic disease per VA regulations and, therefore, continuity of symptomatology may be not used to establish service connection on a presumptive basis. See Walker, supra. Furthermore, the probative August 2013 VHA opinion took into account such statements, but determined that, despite the evidence of post-service complaints and continued treatment for sinus problems since 2000, the recent, normal sinus x-rays rule against a finding of chronicity. The opinion is also supported by the other evidence of record, inclusive of the service and post-service treatment records, which the VA physician opined do not support a finding of chronicity related to the Veteran's military service, as the two in-service infections were separated by a two year period, he did not receive treatment for sinus problems for 20 years after service, and the current findings sinus x-rays are negative. Based on the foregoing, the claim for service connection for sinusitis must be denied. In reaching the conclusion to deny the claim, 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, supra. ORDER The appeal regarding the issue of entitlement to service connection for a left knee disorder is dismissed. Service connection for sinusitis is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs