Citation Nr: 1613264 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 00-19 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a sinus disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had active service from April 1972 to May 1974. This appeal comes before the Board of Veterans' Appeals (Board) from multiple rating decisions by Regional Offices (ROs) of the United States Department of Veterans Affairs (VA). In April 2003, the Veteran had a Travel Board hearing before the undersigned. A transcript of that hearing is in the claims file. A subsequent typographical error created the impression that his hearing was in May 2008, or that he had a second hearing in May 2008. On further review of the record, the Board finds that his April 2003 hearing was his only hearing. The Board will explain this history and finding in greater detail in the decision below. The Veteran's claim for service connection for a sinus disorder was previously before the Board in 2003, 2009, 2010, 2011, and 2015. In August 2010, the Board issued a decision denying his application to reopen his claim of service connection for a sinus disorder. The Veteran appealed the Board's August 2010 decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and VA (the parties) filed with the Court a Joint Motion for Remand, to vacate the Board's August 2010 decision, and remand the matter to the Board for further consideration. In May 2011, the Court issued an order approving that motion. In an October 2011 decision, the Board reopened the claim for service connection for a sinus disorder. The Board remanded the question of service connection, on the merits, to the RO for additional action. In an April 2015 decision, the Board denied service connection for a sinus disorder. The Veteran appealed that denial to the Court. The parties filed a Joint Motion for Partial Remand, vacating the Board's denial of service connection for a sinus disorder, and remanding that matter to the Board for further consideration. In November 2015, the Court issued an order approving that motion. Also in April 2015, the Board remanded to the RO, for additional action, the remaining fourteen issues then on appeal, specifically, claims for service connection for traumatic brain injury, dizziness, a jaw and/or cheek disorder, tinnitus, disorders of the cervical spine, thoracic spine, right elbow, right wrist, and left and right hips, and erectile dysfunction, and claims for increased disability ratings for right ankle disability, an appendectomy scar, and inguinal adenopathy. The Board directed the RO to issue a statement of the case (SOC) with respect to those issues. In May 2015, the RO issued an SOC with respect to the fourteen issues that the Board remanded. The RO informed the Veteran that he had 60 days to file a formal or substantive appeal to complete his appeal as to those issues. The Veteran subsequently informed VA that he had moved and had not received some of his mail. In September 2015, the Board remailed the SOC to the Veteran at the new address that he provided. The RO informed the Veteran that he had 60 days from the date of the September 2015 letter to file a formal or substantive appeal to complete his appeal as to those issues. The Veteran did not file a timely substantive appeal with respect to those issues. Thus, he has not completed an appeal as to those issues, and they are not before the Board on appeal. FINDINGS OF FACT 1. Any sinus or nose injuries or diseases during service resolved during service. 2. Sinus and nose problems noted many years after service are not related to any injury or disease during service. CONCLUSION OF LAW No chronic or recurrent sinus disorder was incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. VA provided the Veteran notice in letters issued in March 2004, November 2005, October 2006, May 2007, March 2008, September 2008, January 2009, September 2010, October 2010, and May 2011. In those letters, VA advised the Veteran what information was needed to substantiate claims for service connection. The letters also informed the Veteran how VA assigns disability ratings and effective dates. In the April 2003 Board hearing, the undersigned Acting VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and has not identified any prejudice in the conduct of the hearing. The Board therefore finds that, even though the hearing pre-dated Bryant, that the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing further notice during the hearing constitutes harmless error. The Veteran's claims file contains service treatment records, post-service treatment records, reports of VA examinations, and a transcript of the April 2003 Board hearing. The reports of VA examinations contain relevant findings that are sufficient to allow a decision on the claim. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Sinus Disorder The Veteran contends that he has a chronic sinus disorder that began during service, possibly as a result of nose injury during service. VA has established service connection for migraine headaches, so the claim regarding a sinus disorder involves a disorder other than migraine headaches. As noted above, the Court approved in November 2015 a Joint Motion for Partial Remand, vacating the part of the Board's April 2015 decision that denied service connection for a sinus disorder, and remanding that matter to the Board for further consideration. In the motion, the parties stated that, in a May 2009 Board decision, the Board noted that the Veteran testified at a Board hearing in May 2008. The parties noted that the Veteran's claims file did not contain a transcript of the May 2008 Board hearing. The parties stated that the Board did not provide adequate reasons and bases because it did not ensure that a transcript of the 2008 hearing was in the file or adequately explain why the transcript could not be obtained. The Board has reviewed the Veteran's claims file. The Veteran had a Travel Board hearing in April 2003, and a transcript of that hearing is in his claims file. Since then, he has not requested, and has not had, any additional Board hearing. In a May 2009 decision, on page 2, the Board erroneously indicated that the Veteran's hearing occurred in May 2008. Later in that decision, on page 19, the Board correctly referred to a hearing as having occurred in April 2003. The erroneous date provided page 2 of that decision is the apparent source of the impression that the hearing was in May 2008 or that he had a second hearing in May 2008. In fact, he did not have a hearing in May 2008. Therefore a transcript of a hearing in his case at that time does not exist and accordingly cannot be obtained. It strikes the Board that this matter could have been resolved without resort to a Joint Motion for Remand. It is a mystery why the Veteran's attorney before the Court did not simply communicate with his client to ask whether he had testified at more than one hearing. The Board is therefore now considering the claim for service connection for a sinus disorder based on all of the evidence that is of record. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The Veteran's service medical records show that he sought treatment in January 1973 for an upper respiratory infection. He was seen on multiple occasions for headaches. In November 1973, a clinician found that he had no frontal sinus tenderness. When he was examined in April 1974 for separation from service, the examiner marked "normal" for the condition of the nose and sinuses. After service, in VA treatment in November 1993, the Veteran was noted to have recurrent upper respiratory infections with chronic sinusitis. In October 1997, he sought service connection for multiple disorders including a sinus disorder. Private treatment notes from October 1998 reflect his report of sinus problems. In the April 2003 Board hearing, the Veteran reported that in paratrooper duties during service he fell and sustained injury of his nose. He related that his nose became swollen but was not broken. He stated that he then began to have intermittent one-sided nasal congestion. He indicated that after service he continued to have recurrent sinus problems. On June 2013, the Veteran had a VA examination of the sinuses, nose, throat, larynx, and pharynx. The examining physician reported having reviewed the claims file. The Veteran reported that in a parachute jumping accident during service he struck his nose and face against the ground. On examination, there was no evidence of sinusitis. The examiner noted that on CT scan in September 2008, the Veteran's sinuses appeared completely normal. Sinus series x-rays taken in the June 2013 examination also showed normal sinuses. The examiner stated that the Veteran did not have sinusitis at the time of the examination, although he had nasal septal deformity. The examiner expressed the opinion that it is less likely than not that sinusitis arose from an event in service. In a statement that VA received in August 2015, the Veteran asserted that injury of his nose occurred in service, in 1973, when he fell and struck his face and nose. He expressed disagreement with the opinion of the VA physician who examined him in 2013. The Veteran is competent to report that he sustained nose injury during service. No ongoing nose or sinus problems were found, however, when he was examined for separation from service. Nor is there any evidence that he had chronic or recurrent nose or sinus problems in the years immediately following his service. The earliest clinical findings of chronic sinusitis are from the 1990s, many years after his service. The evidence thus does not help to show that any nose injury during service resulted in a nose or sinus disorder that continued through service and afterward. The VA physician who examined the Veteran in 2013 is competent to address questions of likely medical causation. That examiner reviewed the claims file, and his statements are consistent with the history recorded in the claims file. His opinion against a nexus between post-service sinusitis and events in service thus carries substantial evidentiary weight. In light of that opinion and the medical records, the preponderance of the evidence is against incurrence during service of any current sinus disorder. ORDER Entitlement to service connection for a sinus disorder is denied. ____________________________________________ HEATHER J. HARTER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs