Citation Nr: 1341647 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 10-22 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a sinus disability to include residuals of a claimed sinus surgery. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Veteran, Veteran's friend, Veteran's sister ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal. In a June 2012 decision, the Board remanded this issue to schedule a hearing before a Member of the Board. Thereafter, the Veteran testified before the undersigned Veterans Law Judge in August 2012. A transcript of the hearing is associated with the claims file. The Board again remanded this issue in a January 2013 decision. During the course of his appeal and at his hearing before the Board, the Veteran asserted that he developed a mass on his forehead during service that continued to grow. At the hearing, the Veteran's representative was asked if the Veteran desired to file a claim for a service connection for residual scarring of the forehead resulting from this mass. The Veteran's representative indicated that service connection for a scar had been awarded. However, review of the record shows that the Veteran is service connected for a scar related to his colon cancer, not the scar on his forehead. In light of the Veteran's continued assertions that his forehead mass (lipoma) began during service, the matter is referred to the RO for further consideration. FINDING OF FACT The preponderance of the evidence is against a finding that a sinus disability or residuals of his claimed in-service sinus condition is related to service. CONCLUSION OF LAW A sinus disability or residual of an in-service sinus condition was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in a May 2009 letter, prior to the date of the issuance of the appealed November 2009 rating decision. The May 2009 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of October 2009 and April 2013 VA examinations. The VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered an appropriate diagnosis and opinions consistent with the remainder of the evidence of record. As such, the Board finds that the October 2009 and April 2013 examination reports are sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf and the hearing testimony. With respect to the hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Her e, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate a claim for service connection. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran claims that he has a sinus disability as a result of his service. Specifically, he testified that he had sinusitis in service which resulted in him receiving an injection. This caused ongoing problems with symptoms such as headaches. According to the Veteran, this eventually led to a septoplasty. The Board notes that the Veteran's service treatment records contain multiple entries where the Veteran presented with respiratory complaints. Specifically, in February 1993 he presented with complaints of a cough with yellowish production. The diagnosis was clinical maxillary sinusitis/upper respiratory infection. Following service separation, in May 2005, the Veteran underwent surgery to have a lipoma removed from his forehead. The Veteran was afforded with a VA examination in October 2009 to obtain an opinion on the residuals of sinus surgery due to treatment for chronic maxillary sinusitis. The examiner noted that the Veteran's sinus condition began in 1986 and he underwent sinus surgery in 2005 for a fatty tumor removal from his forehead. A review of the records noted a diagnosis of chronic maxillary sinusitis in 1993 and 1997. The Veteran also had symptoms consistent with upper respiratory infections. The Veteran presented with current complaints of frontal headaches with right retroorbital eye pain. The diagnosis was history of lipoma removal from forehead and chronic headaches of unknown cause. The examiner opined that it was less likely than not that the Veteran's sinus surgery residuals were caused by, or the result of, his treatment for chronic maxillary sinusitis on active duty as there was no medical evidence to support a relationship between lipomas and chronic sinus disease/upper respiratory infections. An April 2010 VA treatment note diagnosed the Veteran with a nasal septum deformity. It was noted that the Veteran would benefit from septoplasty bilateral reduction and possibly inferior turbinate reduction. In April 2010, the Veteran underwent a septoplasty and an inferior turbinate reduction. Per the January 2013 Board remand instructions, the Veteran underwent a VA examination in April 2013. It was noted that the Veteran had been previously diagnosed with a deviated nasal septum (traumatic) as well as inferior turbinate hypertrophy. The examiner noted that the Veteran reported that he underwent an injection on the forehead in 1987 and later developed a bump in that area which led to sinusitis and recurrent headaches. After years of experiencing this, he underwent surgical removal of the bump in 2004. He reports that a physician informed him that he believed that both the surgery and the mass damaged his sinuses which led to his sinus infections. He then noted that after his "sinus surgery" in 2010, he had not had any further sinus infections or problems with his nose. The examiner indicated that a review of the records showed that the Veteran was treated on numerous occasions while in service for upper respiratory infections (1993, 1994, 1996, and 1997). With some of the illnesses he was treated with antibiotics and other illnesses were treated with oral decongestants alone. The records did note "chronic maxillary sinusitis" in 1993 and 1997 but the symptoms listed were more consistent with upper respiratory infections. In reviewing the May 2005 surgery notes for removal of a lipoma, the examiner noted that there was a vessel that required ligation but no bone was involved or removed and overall the procedure was uneventful. The Veteran's May 2010 septoplasty was also uneventful. The Veteran currently had rhinitis, deviated nasal septum (traumatic) and nasal endoscopy findings consistent with prior septoplasty and turbinate reductions. A CT scan revealed mild mucosal thickening of maxillary sinus, septal deviation, turbinate hypertrophy and concha bullosa. A nasal endoscopy on April 2013 revealed normal mucosa, no polyps or masses, normal inferior turbinates, a midline septum and no edematous tissue suggestive of chronic sinusitis. The examiner clarified that the Veteran did not have "sinus surgery" in 2010 as he rather had nasal surgery to address anatomic abnormality of the septum, inferior turbinates, and middle turbinates (concha bullosa). The sinuses were not addressed with that surgery. Additionally, to specifically address the concern of the Veteran that the forehead injection, lipoma, or lipoma removal was the cause of his sinusitis is inaccurate as each of these would be related to the skin and soft tissue of the forehead and would not/did not involve bone or frontal sinuses. On examination, the Veteran did not currently have evidence of chronic or acute sinusitis. Additionally, review of the records spoke more to recurrent upper respiratory viral infections rather than chronic sinusitis. Based on the examination and review of the record, the examiner opined that the Veteran did not currently suffer from a sinus disability. It was difficult to determine if at any point since 2009 he had suffered from a sinus disability. However, based on a 2010 CT report and February 2010 and April 2010 ear nose and throat reports, it was less likely as not that he was suffering from sinusitis at that time. The surgery performed in 2010 was to improve his nasal breathing by addressing anatomic abnormalities. It was less likely as not that these anatomic abnormalities would lead to sinusitis. Rather, they would cause nasal airway obstruction. Additionally, the "sinus problems" in service were more consistent with viral upper respiratory illnesses. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current sinus disability is related to military service. As there is a current diagnosis of history of lipoma removal from forehead, chronic headaches of unknown cause, rhinitis, and deviated nasal septum (traumatic), the first element of service connection is satisfied. However, the evidence must establish not only the existence of a disability, but also an etiological connection between military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board acknowledges that the Veteran's available service treatment records demonstrate that the Veteran presented with sinus complaints on multiple occasions which included a diagnosis of clinical maxillary sinusitis/upper respiratory infection in February 1993. The service treatment records however, are negative for any or diagnoses of any chronic sinus disorders as the sinus complaints were medically addressed in service, and appear to have been of an acute and transitory nature. Significantly, the Veteran's November 1998 separation examination was negative for any chronic sinus disorder or complaints and the Report of Medical History indicated no current/past medical history of either sinusitis or chronic or frequent colds. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current sinus disability and the Veteran's military service. In fact, the only medical opinions of record weigh against the claim. As indicated above, the October 2009 VA examiner determined that it was less likely than not that the Veteran's claimed sinus surgery residuals were caused by, or the result of, his treatment for chronic maxillary sinusitis on active duty while the April 2013 VA examiner noted that the Veteran did not currently have evidence of chronic or acute sinusitis. The April 2013 VA examiner also found that the Veteran did not have "sinus surgery" in 2010 and that his lipoma removal surgery was not related to any sinusitis as that type of surgery would be related to the skin and soft tissue of the forehead and would not/did not involve bone or frontal sinuses. Accordingly, both examiners in essence determined that the Veteran's claimed sinus symptoms were not related to his military service. None of the competent medical evidence currently of record refutes these conclusions, and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. Given that the most probative opinions are against a finding of a relationship between a claimed sinus disability and service, the Board finds that service connection is not warranted. To the extent that the Veteran himself contends that a medical relationship exists between his current claimed disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds the question as to the etiology of the Veteran's current sinus disability is a question that requires medical expertise to answer. While some symptoms of the disorder may be reported by a layperson, the Veteran and his representative do not have the medical expertise to provide an opinion regarding its existence or etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Thus, the Veteran and his representative's assertions that there is a relationship between his claimed sinus disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). ORDER Entitlement to service connection for a sinus disability, residuals of sinus surgery is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs