Citation Nr: 1608127 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 09-39 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for right shoulder condition. 2. Entitlement to service connection for sinus condition, to include allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to November 1989, from May 2003 to February 2004, and from October 2005 to August 2007, with additional inactive service in the Army National Guard. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Des Moines, Iowa, Department of Veterans Affairs (VA) Regional Office (RO). In his October 2009 VA Form 9, the Veteran indicated that he wished to testify before a Veterans Law Judge at his local RO, but within the text of this form, he indicated that he would prefer a video conference hearing. See VBMS VA 9 Appeal to Board of Appeals. The Veteran was schedule to testify at a Board hearing before a Veterans Law Judge on June 13, 2012. See VBMS Hearing Request 5/4/12. In May 2012, his representative informed VA that the Veteran would not be able to attend that hearing and the appeal should be continued without a personal hearing. See VBMS VA 21-4138 Statement on Support of Claim 5/4/12. Thus, the Veteran's hearing request was withdrawn. In July 2014, the Board granted service connection for undiagnosed illness manifested by numbness, tingling and cramping of the right hand, denied service connection for headaches, and remanded the issues of sinus condition and right shoulder strain for further development. See VBMS Remand BVA or CAVC 7/22/14. This grant of a right hand disability was effectuated in an August 2014 rating decision. See VBMS Rating Decision - Narrative 8/22/14. FINDINGS OF FACT 1. There is clear and unmistakable evidence that the Veteran's right shoulder condition existed prior to service and did not undergo a permanent worsening or aggravation during service. 2. The competent and credible evidence does not show that the Veteran has a sinus condition, including allergic rhinitis, related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder condition have not been met. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2015). 2. The criteria for service connection for sinus condition have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board finds that the required notice was met through correspondence sent to the Veteran during the course of the claim. See VBMS VCAA/DTA Letter 11/26/07. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file, including the electronic claims file, contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's July 2014 remand, VA sought addendum medical opinions from the July 2009 VA examiner. In an October 2014 addendum, this examiner reviewed the Veteran's subjective complaints and the objective evidence of record. This examiner then offered opinions as to the nature of the claimed disabilities, accompanied by detailed rationales. Therefore, this opinion is adequate for VA purposes. Thus VA has complied with the July 2014 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection - Right Shoulder Condition The Veteran injured his right shoulder at work on August 17, 2002. See e.g., STR - Medical (3 of 3) 6/4/09, pg. 34. Neither the record nor the Veteran has suggested that this injury was incurred as part of his National Guard service. Instead, the Veteran argues that this injury had resolved prior to his deployment and his right shoulder was injured anew as a result of wearing heavy body armor during deployment. He currently has a right shoulder condition diagnosed as impingement and tendinopathy. See VBMS VA Examination 7/18/09, pg. 9. The Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service; unless clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. See 38 U.S.C.A. § 1111. At the time of his October 2005 pre-deployment health assessment, the Veteran reported "excellent" general health and denied any current medical problems. See STR - Medical (1 of 3) 6/4/09, pgs. 83, 84. As such, no right shoulder condition was noted at the onset of this period of active duty service. The question then becomes whether clear and unmistakable evidence establishes that this condition existed prior to service. To this end, the October 2014 VA examiner found that it was clear and unmistakable that the current right shoulder disorder pre-existed service, noting the extensive records surrounding the August 2002 work injury and its subsequent physical therapy. See VBMS C&P Exam 10/21/14, pg. 5. Those records show treatment and a physical profile for a strained right rotator cuff. See e.g., VBMS STR - Medical (3 of 3) 6/4/09, pg. 25. Moreover, this examiner noted that there was no evidence of a forcefully traumatic even during this deployment that could have caused rotator cuff injury or tear of the tendons. See id. Thus, there is clear and unmistakable evidence that this right shoulder condition existed prior to service. Once the pre-existence of a disability had been established, the relevant inquiry is whether that disability was aggravated by the Veteran's military service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); see Akins v. Derwinski, 1 Vet. App. 228 (1991) (holding that VA must point to a specific finding that increase in disability is due to the natural progress of the condition). In this case, shoulder pain was noted again on his July 2007 post-deployment health assessment. See VBMS STR - Medical (1 of 3) 6/4/09, pg. 8. The Veteran stated that he had shoulder pain while wearing body armor (IBA). See id. The Veteran's fellow service members have reported that he experienced right shoulder pain during this deployment. See e.g., VBMS Buddy/Lay Statement 10/1/08. The October 2014 examiner found that there was no aggravation beyond the natural progression of this pre-existing right shoulder condition, noting that this pain while wearing body armor was a manifestation of the underlying pre-existing right shoulder condition, likely attributable to pressure from the weight of the body armor on a low grade rotator cuff tear from the pre-service injury. See VBMS C&P Exam 10/21/14, pg. 7. Moreover, this examiner noted that there was no evidence of a forcefully traumatic even during this deployment that could have caused rotator cuff injury or tear of the tendons. See id. The lay evidence does not allege any trauma beyond the wearing of body armor. As such, the record shows no aggravation of the pre-existing right shoulder condition during the Veteran's active duty service. The examiner further noted that the Veteran complained of continued worsening of right shoulder pain following service, which the examiner attributes to his post-service employment, which included frequent overhead work. See VBMS C&P Exam 10/21/14, pg. 8; see also VBMS Medical Treatment Records - Government Facility 4/28/08, pg. 6 (noting that the Veteran's job requires a lot of overhead work). For the reasons discussed above, the Board determines that the medical data of record shows that the Veteran's right shoulder condition pre-existed service and did not undergo a permanent worsening or aggravation during service. Thus service connection is not warranted. Accordingly, the appeal is denied. Service Connection - Sinus Condition In order to prevail on the issue of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the record does not show a current diagnosis of sinusitis. He does however have current diagnoses of allergic rhinitis. See VBMS VA Examination 2/5/08, pg. 24; see also McLain v. Nicholson, 21 Vet. App. 319 (2007)( holding that the current disability requirement can be established by showing that the Veteran had the claimed disability either at the time a claim for VA disability compensation was filed or at some time during the pendency of that claim). Thus, the current disability requirement is satisfied. The Veteran's service treatment records show no complaints of or treatment for allergic rhinitis or respiratory symptoms during his active duty service. See VBMS STR - Medical 6/4/09. Moreover, the Veteran specifically denied symptoms such as running nose and difficulty breathing in his March 2006 post deployment health assessment. See VBMS STR - Medical 6/4/09 (2 of 3), pg. 131. A December 1998 Report of Medical History prior to the Veteran's service, noted mild hay fever. See VBMS STR - Medical (2 of 3) 6/4/09, pg. 144. The Veteran and his fellow service members have provided lay evidence of the Veteran's in-service respiratory complaints that he treated with sinus medication. See e.g., VBMS Buddy/Lay Statement 10/1/08; VBMS Hearing Testimony 10/1/08, pg. 8. Lay people, such as the Veteran and his fellow service members, are competent to report on that of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board accepts this lay evidence as credible and the in-service occurrence requirement is satisfied. The remaining question is whether the record contains medical nexus evidence establishing a connection between the Veteran's current allergic rhinitis and his military service. The February 2008 examiner did not provide a medical nexus opinion on this issue. See VBMS VA Examination 2/5/08, pg. 24. The Veteran underwent another VA examination in July 2009. At that time, the Veteran noted that his symptoms had improved since service. See VBMS VA Examination 7/18/09, pg. 18. In an October 2014 addendum opinion, that examiner found that the Veteran had not had any ears, nose, and throat issues since 2008 and so, in light of the record, the examiner found that he did not have allergic rhinitis currently and his lay-reported symptoms were more likely attributable to acute upper respiratory viruses and illness that were relieved with treatment. See VBMS C&P Exam 10/21/14, pg. 8-9. The record does not contain a positive medical nexus opinion. Importantly, the Board does not construe the October 2014 addendum as indicating that prior to 2008 the Veteran did have a chronic sinus disability, to include allergic rhinitis. If such were the case, service connection could still be warranted for the period on appeal where active disability was shown. McLain v. Nicholson, 21 Vet. App. 319 (2007). Reading the opinion as a whole, and in the context of the greater record, the examiner's statements are found to indicate that the Veteran had normally resolving periods of "sinus colds," such as in November 2007, which the examiner noted was a typical time for people to have such symptoms. The Board interprets this response to indicate that throughout the entire appeal period the Veteran's symptoms were merely indicative of typical colds that resolved without chronic residuals. The Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the nature of the Veteran's symptoms is similar to the symptoms associated with acute conditions like a cold and, as such, a degree of medical expertise is required to differentiate these conditions. Thus, the Veteran is not competent to address etiology in the present case. Therefore, service connection is not warranted. In short, for reasons expressed immediately above, the claim of service connection for a sinus condition, to include allergic rhinitis, must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not help the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for right shoulder condition is denied. Service connection for sinus condition, to include allergic rhinitis, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs