Citation Nr: 1339501 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 07-27 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for allergic rhinitis, claimed as a sinus disorder. 2. Entitlement to service connection for a sinus disorder other than allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran had active service from July 1973 to July 1976, January 1989 to May 1989, May 1993 to August 1993, and June 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee, that denied the Veteran's claim of service connection for a sinus disorder. On his August 2007 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran elected to testify at a hearing over which a Veterans Law Judge of the Board would have presided while at the RO. The Veteran was scheduled the requested hearing in March 2009, but he failed to report for the hearing. As he has not submitted any additional requests for another hearing, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e) (2013). This matter was previously before the Board in December 2010 at which time the issue of service connection for a sinus disorder was remanded for additional development. The Veteran is seeking service connection for a sinus disorder. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission."). A claimant may satisfy the requirement of reporting a disability by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"). In light of Ingram, Brokowski, and Clemons, the Board has recharacterized the issue on appeal to include entitlement to service connection for allergic rhinitis. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Ingram, Brokowski, and Clemons. Additionally, the Board notes that VA is free to dismember a claim and adjudicate it in separate pieces. Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). In this case, the Veteran claimed service connection for a sinus disorder in his November 2005 claim. A March 2011 VA examination report was unable to comment on the Veteran's sinus disorder, but indicated that the Veteran had chronic allergic rhinitis that was at least as likely as not related to his period of service. While a decision encompassing all claimed disabilities is generally preferred, bifurcation is appropriate in this case, as the evidence shows that service connection can be granted for allergic rhinitis, but further development is needed for a sinus disorder other than allergic rhinitis. The Board also notes that the diagnostic criteria for rating allergic rhinitis and sinusitis are different. Thus, the Board has bifurcated the Veteran's claim for a sinus disorder as reflected on the title page. In addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claims (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such record reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for a sinus disorder other than allergic rhinitis 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 Resolving all reasonable doubt in favor of the Veteran, allergic rhinitis was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for allergic rhinitis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for allergic rhinitis is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In the present case, the Board finds that the Veteran has current allergic rhinitis. Indeed, after review of the claims file and examination of the Veteran, a March 2011 VA examiner found that the Veteran had chronic allergic rhinitis. The Board also finds that the evidence shows that the Veteran's allergic rhinitis had its onset during his period of service. Service treatment records indicate an upper respiratory infection in March 1989 and a sinus infection in March 2005, when the Veteran was prescribed a prescription allergy medication and diagnosed with allergic rhinitis. The Veteran also reported nasal congestion in April 2005 and was prescribed a nasal steroid and instructed to continue the prescription ordered in March 2005. Further, in his June 2005 post-deployment survey, the Veteran reported that he developed the following pertinent symptoms during his deployment to Iraq in 2004 to 2005: chronic cough, runny nose, fever, and headaches. Additionally, in his post-deployment report, the Veteran maintained that he was exposed to pesticide-treated uniforms, smoke from oil fire, smoke from burning trash or feces, industrial pollution, sand, and dust. Upon return from deployment in November 2005, he was again prescribed a nasal steroid for his increased sinus symptoms. A computed tomography (CT) scan of the sinuses taken in November 2005 revealed sinus thickening and inferior turbinate hypertrophy: right, left. Additionally, the lay statements submitted by the Veteran, his wife, and his fellow service-members consistently show that the Veteran experienced sinus problems and other upper respiratory problems during his period of service. Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the evidence shows that the Veteran's allergic rhinitis is attributable to his in-service treatment for upper respiratory symptoms. A February 2008 post-service private medical record indicates that the Veteran likely had a viral illness early in his deployment. Due to his particular role in service, prolonged bed rest for recovery was unrealistic. Thus, the physician found that irritants the Veteran was exposed to during his deployment, including strong odors such as burning petroleum, "could certainly have aggravated his airway symptoms making it hard for him to break the cycle, heal, and recover completely." Moreover, after reviewing the claims file and examining the Veteran, the March 2011 VA examiner opined that it was at least as likely as not that the Veteran had chronic rhinitis that had its onset and was worsened by his service in Iraq. The examiner explained that chronic rhinitis was frequently confused with chronic rhinosinusitis by both patients and physicians, and that the Veteran's history was more suspicious of a chronic allergic rhinitis picture. There is no competent contrary opinion of record regarding the question of nexus between allergic rhinitis and service. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for allergic rhinitis have been met. Reasonable doubt has been resolved in favor of the Veteran in this matter. 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for allergic rhinitis is granted. REMAND Unfortunately, a remand is required in this case as to the issue of service connection for a sinus disorder other than allergic rhinitis. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of a previous remand. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013). On VA examination in March 2011, the examiner reviewed the Veteran's claims file and examined the Veteran. He stated that the Veteran had a history that was highly suspicious for chronic rhinitis that was notably worsened during his service in Iraq. The Veteran reported that he had undergone a CT scan in the past. The examiner found it unfortunate that the Veteran had been sent to the VA examination without any imaging because in order to definitely state whether the Veteran had any ongoing abnormalities in his sinuses, imaging was required. Therefore, based on the current information and lack of imaging, the examiner declined to comment on the presence of a sinus disorder. The Board also notes that a November 2005 CT scan that was taken post-deployment revealed sinus thickening and inferior turbinate hypertrophy: right, left. However, in a February 2008 private medical report, the physician indicated that the Veteran had been evaluated at Vanderbilt in the Allergy Clinic after discharge from service, and that his evaluation had included a normal CT of the sinuses. Given the above, the RO/AMC should arrange for the Veteran to undergo appropriate diagnostic testing, to include a CT scan of his sinuses. After the CT scan has been conducted, the claims file should be returned to the March 2011 examiner, if available, in order to give him an opportunity to receive the additional medical evidence and provide an opinion regarding whether the Veteran's sinus disorder other than allergic rhinitis is related to his period of service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Specifically, the records associated with the Veteran's medical evaluation at Vanderbilt in the Allergy Clinic should be obtained, as they may be pertinent to the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall request that the Veteran provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for a sinus disorder other than allergic rhinitis. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. The Veteran should specifically be asked to provide the appropriate release form for Vanderbilt in the Allergy Clinic. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The RO/AMC shall make the appropriate arrangements to have a VA sinus CT scan, or any other appropriate diagnostic study, conducted. Then, after the sinus CT scan is conducted, return the claims file to the examiner who conducted the March 2011 VA psychiatric examination for an addendum opinion, if available. The report of the sinus CT scan/diagnostic study shall be made available to the examiner for review. The examiner shall once again review the Veteran's claims file. Based on the review of the record, to specifically include any additional medical records and the CT scan, the examiner shall provide an opinion as to whether it is at least as likely as not that the Veteran has any current sinus disorder other than allergic rhinitis, and if so, whether it is at least as likely as not that any such disorder arose during service or is otherwise related to any incident of service, to include the in-service treatment for upper respiratory symptoms. If the Veteran has a current sinus disorder other than allergic rhinitis, the examiner is also requested to opine as to whether it is at least as likely as not that the now-service-connected allergic rhinitis, either (a) caused, or (b) aggravates said sinus disorder. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a sinus disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion with rationale should be rendered by another qualified examiner. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development action has been conducted and completed in full, and that no other notification or development action, in addition to that directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. 2013). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs