Citation Nr: 1621251 Decision Date: 05/26/16 Archive Date: 06/08/16 DOCKET NO. 10-05 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a heart condition, claimed as heart palpitations or arrhythmia, including as due to herbicide agents exposure. 2. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to February 1974. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions issued in October and November of 2008 and June of 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran had requested a videoconference hearing before a Veterans Law Judge of the Board, but a scheduled February 2016 hearing was cancelled by the Veteran in February 2016. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The issue of entitlement to service connection for a heart condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT The evidence of record reasonably shows that the Veteran has recurrent sinusitis that began in active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for recurrent sinusitis have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to service connection for recurrent sinusitis, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Each disorder for which the Veteran seeks service connection must be considered on the basis of the places, as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). A veteran's lay statements may be sufficient evidence in any claim for service connection. Service treatment records reflect treatment for assessed chronic sinusitis with onset when the Veteran had been stationed in the Panama Canal Zone. The Veteran's service separation examination in October 1973 noted that the Veteran had a "history of allergic sinusitis since being assigned in Canal Zone," which had been diagnosed and treated in at a Canal Zone hospital in October 1972. The examination report also notes that the Veteran had undergone an allergy skin test revealing that he was allergic to dust and that this was aggravated by changes in the weather. The Veteran's paranasal sinus x-rays were noted to be normal, but he was noted to have been treated for his allergy condition and associated headaches with Sudafed and aspirin. Post-service treatment records include records of treatment for sinusitis. Meridian Rural Health Clinics treatment records from 2001 and 2002 include treatment for diagnosed sinusitis, with symptoms including sinus congestion and post-nasal drip. Upon VA respiratory examination in July 2003, the examiner noted that while the Veteran had been diagnosed with asthma, "his complaints are more of a sinus type problem." These complaints included "sinus problems with drainage in his throat and irritated throat." At a VA examination in October 2007 to address a scar over the left eye and claimed associated headaches, the examiner noted that while x-rays in October 2007 showed the paranasal sinuses to be clear, the Veteran reported pain and increased sensitivity to the maxillary sinus area. The examiner noted that this pain as described by the Veteran was consistent with acute maxillary sinusitis. A private allergy test in October 2007 revealed the Veteran to be allergic to all allergens which were listed as tested. This included the following allergens: epidermals, dust, grasses, mold, ragweed, trees, weeds, incidentals, cat pelt, and dust mites. It thus does not appear that the Veteran's sinusitis, to the extent allergic in nature, is of a purely seasonal variety, nor does it appear that the Veteran may be readily removed from an environment of exposure to avoid sinusitis recurrence. Hence, the Veteran's sinusitis episodes do not appear to be isolated, acute allergen-induced disease processes so as to warrant exclusion from service connection on that basis. 38 C.F.R. § 3.380 (2016). The Board notes that service connection is not dependent on a showing of a chronic disability in service. Walker, 708 F.3d at 1338-39. Rather, service connection may be granted when the evidence establishes that it is at least as likely as not that the Veteran has a current disability that is causally or etiologically a result of his military service. In this case, the Veteran is shown to have had recurrent sinusitis in service and to have recurrent sinusitis over the claim interval as well as in years prior to the claim interval. While there has been no VA examination directly addressing whether recurrent sinusitis attributed to allergies in service is the same as that shown during the claim period, the Veteran has contended that the condition began in service, and treatment record from service and following service appear to reflect a consistent pattern of sinusitis attributed to allergies. While the Board notes that prior diagnoses included asthma, the VA respiratory examiner in July 2003 noted that the Veteran's symptoms in fact were consistent with a sinus condition. This in turn is consistent with the Veteran's history of diagnosed sinusitis associated with allergies both in service and in recent years. Thus, while the Veteran's sinus symptoms have been attributed to different disorders over the years, whether these symptoms support recurrent sinusitis as a condition with onset in service and persistent up to the present is a question of fact for the Board. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board here determines that the evidence does support recurrent sinusitis with onset in service and persistence up to the claim period. The evidence for and against onset in service of the Veteran's recurrent sinusitis to be at least in equipoise. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, service connection for recurrent sinusitis is warranted. ORDER Entitlement to service connection for recurrent sinusitis is granted. REMAND The Veteran contends that he has a heart condition which is causally related to service. He has asserted two theories of entitlement: either the condition should be service connection based on his exposure to herbicide agents in service, or the condition developed in service and has persisted up to the present time. At his October 1973 service separation examination the Veteran reported that he had occasional episodes of heart palpitations. The examiner noted that the Veteran had sought no treatment for these palpitations, and further noted that there were no physical findings of heart disease at the examination. In a December 2008 submission, the Veteran clarified that he was claiming service connection for a heart condition with onset in service, not as secondary to hypertension. He informed that he had a heart condition with palpitations in service, which was diagnosed in the 1970s. He further informed that he was under VA care for his heart condition, and that a sleep study performed at the VA Medical Center in Jackson, Mississippi, detected some abnormalities. A VA myocardial perfusion study in May 2013 revealed normal heart size and left ventricular ejection fraction of 57 percent. There were also no wall motion abnormalities. The examining physician assessed no evidence of ischemia by myocardial perfusion scan. However, a submitted November 2007 VA sleep study performed in Meridian, Mississippi, noted heart arrhythmias. In the case of a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran's service in Vietnam during the Vietnam era is established by his service personnel records and has been additionally confirmed by the service department. Hence, his exposure to herbicide agents in service is presumed. Certain diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e) (revised 75 Fed. Reg. 53202 -53216, August 31, 2010). Forms of heart disease including ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; and atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) are disabilities subject to this presumption of service connection based on herbicide agent exposure. Other forms of heart disease are not subject to this presumption. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). Nevertheless, service connection may still be granted on a direct basis with evidence of a relationship between the claimed condition and his military service, to include his herbicide exposure. See Combee v Brown, 34 F.3d. 1039 (Fed. Cir. 1994). The Veteran has yet to be afforded a VA examination addressing the likelihood that he suffers from one of these forms of heart disease subject to this presumption based on in-service herbicide agent exposure. Accordingly, the case is REMANDED for the following action: 1. With the Veteran's assistance, as appropriate, obtain any new, pertinent records, including from private sources, and associate them with the record. 2. Schedule the Veteran for an examination by an examiner with sufficient expertise to determine the nature and etiology of any current heart diseases or conditions. The examiner must specifically address any arrhythmia, and any ischemic-type heart disease subject to presumptive service connection based on herbicide agent exposure. (These ischemic conditions subject to the presumption include, but are not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina.) The record must be made available to the examiner. Any necessary tests or studies should be conducted. The examiner should note the heart palpitations complained-of by the Veteran at his service separation examination in October 1973, and the November 2007 VA sleep study performed in Meridian, Mississippi, that observed heart arrhythmias. For each heart condition or disability present currently, or present at any point during the claim period, the examiner should review the record and address the following: A. List all identified heart conditions and disabilities present at any time during the claim period. B. For each of these heart conditions and disabilities, provide a separate opinion addressing whether it is at least as likely as not (50 percent probability or more) that the condition or disability developed in service or is otherwise causally related to service. The examiner is asked to provide a separate opinion for each heart condition (including arrhythmia) or heart disability diagnosed. A complete rationale (medical explanation) must be provided for each opinion. 3. After completion of the above and any other development deemed necessary, review the expanded record and readjudicate the claim. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K.J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs