Citation Nr: 1340219 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-36 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1975 to November 1979 and from October 2001 to April 2002. The Veteran also had various periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) during his Naval Reserve service, including verified periods of ACDUTRA from February to May 1981, from May to June 1987, from July to August 1982, from May to June 1983, from April to May 1988, in April 1989, in July 1990, in January 1991, from February to March 1992, in September 1993, in July 1994, in June 1996, in July 1998, in June 2004, and in April 2005. This matter is before the Board of Veterans Appeals (Board) on appeal of a rating decision in February 2006 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2008, the Veteran appeared at hearing before a Decision Review Officer. In May 2010, the Veteran failed to appear for a hearing before the Board. A transcript of the hearing before the Decision Review Officer is in the Veteran's file. In June 2011, the Board remanded the claim for further development. As there has been substantial compliance with the remand directive, the Board will proceed with appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). While on appeal in a rating decision in September 2012, the RO granted service connection for cervical strain, and in a rating decision in November 2012 the RO granted service connection for allergic rhinitis and Dupuytren's contracture of the hands, thereby extinguishing the appeal of the claims. FINDING OF FACT Sinusitis is not currently shown. CONCLUSION OF LAW The criteria for service connection for sinusitis have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the claim of service connection for sinusitis, the RO provided pre-adjudication VCAA notice by a letter dated November 2005, and post-adjudication notice by letter dated in February 2009. The Veteran was notified of the evidence needed to substantiate a claim for direct service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was also notified of the criteria for service connection as secondary to or aggravated by a service-connected disability. The Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, and that with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content of the VCAA notice for the claim of service connection, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice). As for the timing of the VCAA notice, to the extent there was pre-adjudication VCAA notice, the timing complied with Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim of service connection was readjudicated as evidenced by the supplemental statements of the case in March 2009 and November 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA has obtained service records and VA records. VA has conducted a necessary medical inquiry in an effort to substantiate the claim of service connection for sinusitis. As the VA examination report is e based on consideration of the prior medical history and described the disability in sufficient detail so that the Board's review of the claim is a fully informed one, the medical examination and the medical opinion rendered are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not argue, and the record does not show, that the claimed disability was the result of participation in combat. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence and Analysis The Veteran is seeking service connection for sinusitis, which he asserts is related to service. The service treatment records show that on entrance examination in June 1975 the Veteran gave a history of hay fever. In March 1976, the Veteran was evaluated for recurrent seasonal rhinorrhea and sinus problems of several years' duration. In August 1976, the Veteran was evaluated for a history of allergies. A scratch test was positive for pollen and mold and animals and dust. The impression was allergic rhinitis. In August 1977, it was noted that the Veteran had hyposensitization to pollen and dust and his symptoms had improved. In May 1978, the Veteran was on allergy therapy and he was having sinus blockage. In June 1978, the Veteran still had congestion. Records of the Reserve show that the Veteran had hay fever. In April 2008, the Veteran testified that he seldom, if ever, sought treatment for sinus problems, during his active and reserve service. He testified that his in-service duties as a diver had him made him more susceptible to cold viruses and to development of sinusitis. On VA examination in August 2011, the diagnosis was allergic rhinitis. The VA examiner found no clinical evidence of sinusitis. X-rays showed no evidence of sinusitis. The VA examiner stated that the Veteran's allergic rhinitis, which had preexisted service, had been permanently aggravated by service. The RO subsequently granted service connection for allergic rhinitis. In a statement in October 2013, the Veteran's representative asserted that the Veteran's sinusitis was linked to allergic rhinitis, citing a treatise from the World Health Organization. The Veteran is competent to describe symptoms, which are within the realm of the Veteran's personal experience. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Veteran, as a lay person, is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran as lay person is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. Sinusitis is not simple medical condition that the Veteran is competent to identify, because the diagnosis depends on clinical or radiological findings and falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify sinusitis. Also sinusitis is not a type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation); see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, sinusitis is more analogous to an internal process such as rheumatic fever than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, sinusitis is not a type of condition under case law that has been found to be capable of lay observation. As sinusitis is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. Where, as here, there is a question of the presence or a diagnosis of a disability, which is not capable of lay observation as a simple medical condition under Jandreau or the type of a medical condition capable of lay observation by case law, to the extent the Veteran's lay evidence is offered as proof of the presence of the sinusitis, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim. And there is no contemporaneous medical diagnosis or symptoms that support a diagnosis by a medical professional. Jandreau, at 1377. Accordingly, as there is no competent evidence of current sinusitis, and absent proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Given the absence of a current diagnosis of sinusitis, the Veteran's representative's argument that sinusitis is related to service-connected allergic rhinitis need not be addressed. As the preponderance of the evidence is against the claim of service connection for sinusitis, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for sinusitis is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs