Citation Nr: 1512268	
Decision Date: 03/23/15    Archive Date: 04/01/15

DOCKET NO.  08-00 373A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for a rhino-sinus disability, to include sinusitis, septal deviation, and allergic rhinitis.

2.  Entitlement to service connection for erectile dysfunction, as secondary to one or more service-connected disability and as secondary to medication taken for one or more service-connected disability.

3.  Entitlement to service connection for a psychiatric disorder, to include any diagnosis made or claimed (whether major depressive disorder as developed below or otherwise), as secondary to one or more service-connected disability.

4.  Entitlement to a higher rating for service-connected lumbar spine degenerative disc disease, currently at 10 percent.

5.  Entitlement to a higher rating for service-connected left knee patellar tendinitis, currently at 10 percent.

6.  Entitlement to a higher rating for service-connected right knee patellar tendinitis with meniscal tear status post meniscectomy, currently at 10 percent.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

S. Becker, Counsel

INTRODUCTION

The Veteran served on active duty from August 1984 to August 1988.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 (notice was not sent until February 2006) rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  Service connection for allergic rhinitis was denied therein. The Veteran appealed this determination.  In May 2010, he testified regarding this matter at a Decision Review Officer hearing.  In February 2013, the Board remanded recharacterized this matter as one of service connection for a rhino-sinus disability to be more encompassing for his benefit.  It then was remanded for additional development.

Further review of the Veteran's claims file reveals that adjudication of this matter can proceed at this time.  The issues of entitlement to service connection for erectile dysfunction and for a psychiatric disorder as well as the claims for higher ratings for service-connected lumbar spine degenerative disc disease, service-connected left knee patellar tendinitis, and service-connected right knee patellar tendinitis with meniscal tear status post meniscectomy have been added to this matter for a limited purpose.  While not on appeal, a REMAND to the agency of original jurisdiction (AOJ), which in this case is the RO, for additional development is needed.

In March 2014 telephone calls, which have been documented in reports of general information, the Veteran raised claims for a total disability rating based on individual unemployability and a temporary total rating due to therapy for service-connected low back, bilateral knee, and right ankle disabilities.  In a February 2015 statement, he raised the issue of entitlement to a temporary total rating due to surgery for service-connected left knee patellar tendinitis.  These issues have not yet been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over them.  They accordingly are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b).


FINDING OF FACT

There is no nexus between the Veteran's current rhino-sinus disability and service.


CONCLUSION OF LAW

The criteria for establishing service connection for a rhino-sinus disability have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.3.07, 3.309 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matters

VA has a duty of notification regarding a claim for VA benefits.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159.  Notice must be provided of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Notification of how a rating and an effective date will be assigned if service connection is granted also must be provided.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notification must be before initial adjudication or, if it was not required then, there must be subsequent adjudication.  Pelegrini, 18 Vet. App. at 112.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  A September 2005 letter contained information on the criteria for establishing service connection, the evidence required in this regard, and the Veteran's and VA's respective duties for obtaining evidence.  This was prior to initial adjudication via the December 2005 rating decision.  Following the initial adjudication, caselaw first required the provision of information on how ratings and effective dates are assigned for disabilities found to be service-connected.  No letters containing this information were issued specific to this matter.

Several letters containing information regarding the assignment of ratings and effective dates for disabilities found to be service-connected were issued for other matters, however.  The Veteran and his representative thus had knowledge of this information.  Subsequent adjudication occurred after these letters in a December 2007 statement of the case (SOC) and September 2011 and June 2013 supplemental statements of the case.  Further, service connection is denied herein.  It follows that the failure to provide the aforementioned information specific to this matter once doing so became required is inconsequential.

In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This includes, as implied from the notification that must be provided, a requirement to aid the claimant in the procurement of relevant records both in government custody and in private custody.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3).  VA also is required to provide a medical examination and/or obtain a medical opinion when necessary to make a determination.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Partial service treatment records have been procured by VA.  A formal finding of unavailability was made in November 2010 with respect to the missing service treatment records, conveying that further attempts to obtain them have been deemed futile.  VA also has procured VA treatment records and identified private treatment records.  The most recent VA treatment records were obtained in compliance with the Board's February 2013 remand.  Also in compliance therewith, the Veteran underwent a June 2013 VA medical examination.  It included review of his claims file, an interview and assessment of him, as well as the rendering of a diagnosis and a medical opinion.  These actions have provided sufficient detail so that the determinations made herein are fully informed.  As such, the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Significantly, neither the Veteran nor his representative has identified any uncompleted necessary development.  No uncompleted necessary development otherwise is apparent.  The Board thus finds that no further notice or assistance action is required.  In other words, VA's duties to notify and to assist have been satisfied.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183.  There further has been at least substantial compliance with the Board's remand, as is required.  Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998).  Adjudication, in sum, may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Service Connection

Service connection means that the facts, shown by the evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  To establish direct service connection, there must be a current disability, the incurrence or aggravation of an injury or disease during service, and a nexus between them.  Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Direct service connection also may be established for any disease diagnosed after separation from service if it was incurred during service.  38 C.F.R. § 3.303(d).

For chronic diseases, service connection may be established if there was manifestation during and after service absent an intercurrent cause.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Continuity of symptomatology after service is required if the disease was noted but not chronic or chronicity was questionable during service.  Id.; Savage v. Gober, 10 Vet. App. 488 (1997).  A rebuttable presumption of service connection exists for chronic diseases when a Veteran served for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within the first year after service.  38 U.S.C.A. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309.

Only the most salient evidence must be discussed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  Persuasive or unpersuasive evidence must be identified, and reasons must be provided for rejecting favorable evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Both medical and lay evidence may be discounted in light of its inherent characteristics and relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

To be current, a disability must be present near or at the time a claim is filed or at any time during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007).  Here, the Veteran filed his claim in August 2005.  All pertinent private treatment records are dated well prior to then.  Yet, some VA treatment records are dated near or subsequent to then.  Such records dated in February 2005 and May 2012 contain a diagnosis of allergic rhinitis.  Such records dated in March 2008 and February 2013 contain a diagnosis of sinusitis.  Finally, allergic rhinitis was the diagnosis rendered at the June 2013 VA medical examination.  The Veteran, in sum, has a current rhino-sinus disability.  
Neither rhinitis nor sinusitis of any type qualifies as a chronic disease.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  Service connection accordingly cannot be presumed notwithstanding that the Veteran served for four years, well over 90 days, none of which were during a period of war but all of which were after December 31, 1946.  Service connection also cannot be premised on chronicity or continuity of symptomatology absent a chronic disease.  However, onset and persistence of relevant symptoms and of the disability itself still must be taken into account as they relate to direct service connection.

Except for any defects noted, a Veteran is presumed to be in sound condition upon entrance into service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  Noted means only defects that are identified upon examination.  38 C.F.R. § 3.304(b).  The available service treatment records do not include an entrance examination.  In the absence of such an examination, it cannot be determined whether the Veteran was in sound condition with respect to his rhino-sinus systems upon his entry into service.  Smith v. Shinseki, 24 Vet. App. 40 (2010); Crowe v. Brown, 7 Vet. App. 238 (1994); Bagby v. Derwinski, 1 Vet. App. 225 (1991). 

The Veteran may have undergone an entrance examination.  That documentation of such an examination is among the unavailable service treatment records indeed is possible.  When records are lost or destroyed while in the possession of the government, there is a heightened obligation to explain all findings and conclusions and to consider the benefit of the doubt.  Ussery v. Brown, 8 Vet. App. 64 (1995); Cuevas v. Principi, 3 Vet. App. 542 (1992); Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  The criteria for establishing the benefit sought are not lowered, however.  Russo v. Brown, 9 Vet. App. 46 (1996).  The Veteran, in other words, must have incurred or aggravated an injury or disease during service.

There is no indication apart from an entrance examination that the Veteran had any rhino-sinus problems prior to his entry into service.  No treatment records document any such problems.  The Veteran does not recount any such problems.  P.M., his ex-wife, knew him for a year and a half prior to his entry into service.  She indicated in an April 2007 statement that he did not have any physical limitations during that time.  As such, the applicable inquiry is incurrence rather than aggravation.  P.M. further indicated that the Veteran had frequent colds and sinus problems during service.  There is no indication that she has a medical background.  Thus, she is a lay person.  Lay evidence is competent when it concerns something personally experienced or witnessed.  Layno v. Brown, 6. Vet. App. 465 (1994).  P.M. accordingly is competent.  

P.M. further is credible.  Indeed, none of the factors for consideration in this regard like interest, bias, inconsistency, implausibility, bad character, malingering, desire for monetary gain, and witness demeanor are significant.  Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  There rather is consistency with the available service treatment records.  A September 1987 entry includes a diagnosis of upper respiratory infection.  Despite his nose, sinuses, and mouth and throat being found normal, the Veteran also reported ear, nose, or throat trouble in the form of occasional upper respiratory infections at his June 1988 separation examination.  

In statements submitted throughout the pendency of his appeal as well as in his testimony, the Veteran has reported experiencing persistent ear, nose, and throat problems following service.  He reports continuity of his in-service symptomatology, in other words.  There is no indication he has a medical background.  The Veteran accordingly is a lay person just like P.M.  His competency regarding the aforementioned undisputed.  He also is credible in this regard.  He had a hearing, but his demeanor was not observed by the undersigned.  The Veteran is self-interested.  A favorable determination indeed may make it possible for him to receive greater compensation benefits than he already receives for other disabilities that have been service-connected.  

Thus, the Veteran may be motivated by a desire for monetary gain.  Yet, his having recurring ear, nose, and throat problems after service is plausible.  There is no internal inconsistency among his statements.  Finally, there is no external inconsistency.  Pertinent private treatment records reflect diagnoses of allergic, perennial allergic, chronic, hypoplastic, and undetermined type rhinitis as well as sinusitis and a deviated nasal septum.  They are dated from April 1996 to June 1999 while the VA treatment records begin in 2002, leaving a gap of over 7 years immediately after service for which there are no records.  However, lay evidence cannot be discounted merely because there is no contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Veteran indeed has reported that he often treated his ear, nose, and throat problems himself.  

Lay evidence such as the Veteran's competent and credible reports of continuity of his in-service symptomatology after service sometimes can confirm nexus.  Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  However, whether there is a nexus here falls outside the province of a lay person.  It rather is a medical question.  The rhino-sinus systems are complex, and many problems with these systems have symptoms which overlap with other such problems.  A lengthy period of time, over 26 years, additionally has passed since the Veteran separated from service.  Only those with a medical background are competent where the determinative issue is medical.  Jones v. West, 12 Vet. App. 460 (1999).  Therefore, the Veteran's reports are not competent when it comes to nexus.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

With respect to medical evidence regarding nexus, there are no private opinions.  One VA opinion, rendered at the June 2013 examination, exists.  To weigh a medical opinion, the qualifications and expertise of the individual rendering the opinion, the scope of the assessment, whether or not pertinent evidence was reviewed, the accuracy of the factual premises underlying the opinion, the rationale provided for it, and degree of certainty in it are factors for consideration.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Ardison v. Brown, 6 Vet. App. 405 (1994); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  None are significant here.  

The examiner is a physician.  It is reiterated that the claims file was reviewed by this examiner.  Further, it is reiterated that the Veteran was interviewed as well as assessed by this examiner.  There is no indication of any deficiency with the scope of either.  Unequivocal language was used by examiner in expressing the opinion.  Specifically, it was determined that the Veteran's rhino-sinus disability is less likely than not related to his service.  A rationale, albeit a terse one, was provided for this opinion.  The examiner noted that the Veteran did not have symptoms of or treatment for allergic rhinitis or sinusitis during service.  There finally is no indication of reliance on an inaccurate factual premise.  

In this regard, the September 1987 service treatment record shows that the Veteran did not have sinus symptoms.  Nasal symptoms were not specifically referenced.  Since the Veteran's separation examination was normal in all pertinent respects, his occasional upper respiratory infections during service were temporary and had resolved.  This is akin to having joint pain or a cough during service which resolves.  Such symptoms do not mean that service connection for arthritis or pulmonary disease manifested later is warranted.  38 C.F.R. § 3.303(b).  Thus, having occasional upper respiratory infections during service does not mean that service connection for a later rhino-sinus disability is warranted.  The examiner further clearly took the Veteran's competent and credible reports of continuity of his in-service symptomatology after service into account.  A nexus still was not found.

For the foregoing reasons, service connection for a rhino-sinus disability cannot be presumed and has not been established.  The preponderance of the evidence indeed is against the Veteran's receipt of this benefit on the basis of all raised and otherwise applicable theories of entitlement.  Evidence weighing against service connection, chiefly the opinion rendered at the June 2013 VA medical examination, is particularly persuasive.  The only evidence weighing for service connection, the Veteran's reports, is less persuasive.  Absent an approximate balance between the evidence against service connection and the evidence for service connection, there is no benefit of the doubt to afford to him.  Service connection for a rhino-sinus disability, in sum, is denied.




(CONTINUED ON NEXT PAGE)
ORDER

Service connection for a rhino-sinus disability is denied.


REMAND

With respect to the claims for service connection for erectile dysfunction and a psychiatric disorder as well as the claims for higher ratings for service-connected lumbar spine degenerative disc disease, for left knee patellar tendinitis, and right knee patellar tendinitis with meniscal tear status post meniscectomy, proper appellate procedure must be followed.  An appeal begins with a notice of disagreement (NOD), a written communication from an appellant or his representative expressing dissatisfaction with and a desire to contest a determination.  38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.201.  A NOD must be filed within one year from the date notice of the determination was mailed.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a).  Upon the filing of a timely NOD, a SOC shall be prepared.  38 U.S.C.A. § 7105(d)(1); 38 C.F.R. § 19.29.  The Board shall remand for issuance of a SOC if one has not been issued.  Manlincon v. West, 12 Vet. App. 238 (1999).

Here, an August 2013 rating decision denied service connection for erectile dysfunction and for a psychiatric disorder.  The previously established 10 percent ratings for service-connected lumbar spine degenerative disc disease, left knee patellar tendinitis, and right knee patellar tendinitis with meniscal tear status post meniscectomy also were continued therein.  Later in August 2013, the Veteran was notified via letter of these determinations.  It appears that a timely NOD was submitted.  Nothing that reasonably could be construed as a NOD appears in the claims file, but there is a September 2013 letter acknowledging receipt of a NOD.

Without the NOD, it is unknown whether the Veteran or his representative disagrees with all determinations, some of the determinations, or only one of the determinations made in the August 2013 rating decision.  A disagreement with all determinations shall be presumed (as is the case herein in remanding each) if the NOD is missing, as opposed to simply in a temporary claims file and therefore unavailable to the Board at this time, since doing so is most favorable to the Veteran.  The same presumption shall be made if, upon association with the permanent claims file, the NOD is unclear.  There is no indication that the RO has issued a SOC yet.  This must be done.

A REMAND is directed for the following:

Issue an SOC concerning each determination in the August 2013 rating decision for which the associated NOD applies.  If the NOD is missing or is unclear about which determination is or determinations are contested, address them all.  Specifically, address service connection for erectile dysfunction, service connection for a psychiatric disorder, and higher ratings for service-connected lumbar spine degenerative disc disease, left knee patellar tendinitis, and right knee patellar tendinitis with meniscal tear status post meniscectomy.  See claims listed under the "Issues" heading on page one of this decision/remand for more complete characterizations.

Provide a copy of the SOC, along with a notice letter of how to continue the appeals process, to the Veteran and his representative.  Place a copy of both in the claims file.  Then follow any and all applicable established appellate procedures, including returning the aforementioned issue or issues to the Board only if the appeal is timely perfected by the Veteran or his representative.

No action is required of the Veteran until he is notified by VA.  However, he is advised of his obligation to cooperate with VA in procuring additional evidence.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991).  He also is advised that he has the right to submit additional evidence and argument concerning the issue(s) subject to this remand.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  They must be afforded prompt treatment.  The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112.



______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs