Citation Nr: 1340276 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 06-24 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a sinus disability, to include allergic rhinitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and wife ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was provided a videoconference Board hearing in February 2012. A transcript of the testimony offered at this hearing has been associated with the record. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. In an August 2013 decision, the Board separated the issues of nose and sinus/rhinitis disorders, and granted service connection for a deviated septum. The Board then remanded the issue for additional development. Given the January 2013 VA examination report and September 2013 VA opinion and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT A sinus disability, to include allergic rhinitis, did not manifest during service, and any current diagnosis of sinus disability is not attributable to service or to a service-connected disorder. CONCLUSION OF LAW A sinus disability, to include allergic rhinitis, was not incurred in or aggravated by military service, nor proximately due to a service-connected disorder. See 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. VCAA letters issued in September 2013, and in May, July, and October 2004, fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, March 2006 and September 2013 letters described how appropriate disability ratings and effective dates were assigned. The claim was subsequently readjudicated in various supplemental statements of the case, most recently issued in November 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such re adjudication in the statement of the case). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available, relevant service treatment records and post-service private and VA medical records are in the file. The Board concludes that all records identified by the Veteran as relating to the claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. Additionally, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). The Veteran was provided a VA examination in November 2004, January 2008, December 2009, May 2012, and January and September 2013 for his disability claim. The examination reports reflect that the examiners reviewed the claims file, conducted appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination reports to be thorough and complete. Therefore, the Board finds the examination reports and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection - Legal Criteria The Board must assess the credibility and weight of all 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. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection - Analysis The Veteran asserts he has a sinus problem due to his in-service injury. Service treatment records indicate the Veteran was injured in a fall down stairs in February 1967, which required a tooth extraction. When extracting the tooth, the sinuses were punctured. In a July 1967 service treatment record, the Veteran complained of nasal congestion and cough. The diagnosis was sinus congestion. Upon separation, the Veteran denied sinusitis; the sinus was marked as normal. The Board notes that the Veteran has a current diagnosis of a sinus problem. A June 2004 private treatment record included a diagnosis of allergic rhinitis. During a November 2004 VA examination, the Veteran complained that he awakens from sleep choking due to excess phlegm and posterior drainage in his throat. Upon physical examination, the examiner noted that the nose was normal and that he was moving air easily through both nares. His mouth was negative for pathology and his throat had no inflammation and no exudates. A head CT showed no acute intracranial abnormality. The final diagnosis included status post maxillary sinus surgery, and significant post nasal drip and excessive phlegm which at times causes sleep disturbance. During a May 2012 VA examination, the examiner reported diagnoses of allergic rhinitis and deviated nasal septum. After review of the claims file, and a physical examination, the examiner found the Veteran's allergic rhinitis was not caused by or the result of events that occurred in 1967. He supported his opinion by stating that a traumatic injury would not cause allergic rhinitis. The Board remanded the claim for an additional opinion in August 2013. A September 2013 VA examiner stated that neither allergic rhinitis or other sinus disorder was caused by, the result of, or aggravated by the Veteran's service-connected deviated septum. The septum was not deviated enough to have any effect on a sinus disorder or allergic rhinitis. The examiner noted that these are two different types of inflammatory disorders of the nasal passages that would not be affected by a mildly deviated septum. Analysis The evidence reflects that the Veteran has a current diagnosis of a chronic sinus disorder diagnosed as allergic rhinitis. Having reviewed the complete record, however, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's current chronic sinus disorder was incurred in or otherwise related to his military service or in-service injury or service-connected disorder. The evidence clearly shows that the Veteran sustained an injury during service that resulted in a deviated septum. However, there is no indication that the injury resulted in a chronic sinus disorder. See 38 C.F.R. § 3.303. In fact, the first complaint of a chronic sinus disorder was in June 2004, more than 35 years after separation from service. The evidentiary gap between the Veteran's active service and the earliest medical evidence of a sinus disorder weighs heavily against the Veteran's claim on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The Board finds the May 2012 and September 2013 VA medical opinions to be of significant probative as to whether the Veteran has a current sinus disorder or allergic rhinitis due to an injury in service. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The May 2012 VA examiner considered the Veteran's claims file, his contentions, the medical evidence of record, and conducted a complete physical examination, but concluded that the Veteran's chronic sinus disorder (which he diagnosed as allergic rhinitis) was not caused by or related to his active duty service. The September 2013 VA examiner determined that neither allergic rhinitis or any other sinus disorder were caused or aggravated by his service-connected deviated septum. Furthermore, a complete and thorough rationale was provided for the opinions rendered. Specifically, the May 2012 VA examiner indicated that traumatic injury would not cause allergic rhinitis and the September 2013 examiner noted that these are two different types of inflammatory disorders of the nasal passages that would not be affected by a mildly deviated septum. The examiners' conclusions were fully explained and consistent with the credible evidence of record. The Board has considered the Veteran's contentions and statements. The Board finds that the Veteran is competent to report his symptoms and treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). To the extent that the Veteran suggests in-service onset of any chronic sinus disorder shown during the appeal period or continuity of his sinus symptoms since service, the Board finds that he is not credible. In this regard, although it is documented that Veteran was treated for a single episode of sinus problems in service, any further indication of such problems are not shown in the STRs or anytime soon after service, and because any assertion of continuity of symptoms is simply incongruous with the specific denial of a history of sinusitis at separation. Therefore, the Veteran's statements have diminished probative value. In sum, the preponderance of the evidence is against the Veteran's claim for service connection. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a sinus disability, to include allergic rhinitis is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs