Citation Nr: 1315373 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 07-12 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a sinus condition, to include as due to in-service facial trauma. 2. Entitlement to service connection for headaches, to include as due to in-service facial trauma, to include as due to a sinus condition. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The Veteran served on active duty from April 1975 to February 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2005, the Veteran substantively appealed the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) to the Board. In a June 2007 rating decision, the RO granted the issue of entitlement to service connection for PTSD, and thus the issue was granted in full and is no longer before the Board. In November 2007, the Veteran submitted a notice of disagreement with the effective date assigned to his grant of entitlement to service connection for PTSD, and requested an effective date of May 16, 2001. In a June 2008 Decision Review Officer decision, the Veteran was provided an effective date of May 16, 2001 for his initial 10 percent rating for PTSD. As this decision provided the remedy sought by the Veteran, his appeal was granted in full, and the RO did not err in failing to provide a Statement of the Case. This appeal was previously before the Board in September 2010 and October 2012. The Board remanded the claim so the Veteran could be scheduled for a VA examination, and for an addendum to the examination. The case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran suffers from a chronic sinus condition which is etiologically related to a disease, injury or event in service. 2. The preponderance of the evidence is against finding that the Veteran's headaches are etiologically related to a disease, injury or event in service. CONCLUSIONS OF LAW 1. A chronic sinus condition, to include as a residual of facial trauma, was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A headache disorder, to include as a residual of facial trauma, was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326. Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The Veteran was provided a VCAA notice letter in November 2005, which fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. A March 2006 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of entitlement to service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran was contacted by the RO to provide a release of records from the Federal Bureau of Prisons, however, the Veteran did not provide the release. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i). The Veteran was provided a VA examination in October 2010 for his complaints of headaches and sinus problems. An addendum opinion was provided by that VA examiner in November 2012. The examiner indicated that the Veteran's cigarette smoking, nasal cocaine use, and nasal allergies were the likely cause of his sinus infections, headaches and nasal congestion. Additionally a CT scan did not show evidence of trauma that would be the factor for sinus infections. The examiner took into account the Veteran's reported history, his current symptoms, and the results of physical examination and diagnostic studies. Therefore, the Board finds the examination reports to be thorough and complete and sufficient upon which to base a decision with regards to these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as certain neurological disorders, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran claims that the injuries he incurred during an assault in service in November 1977 caused him to develop chronic headaches and a sinus condition. In January 1977, the Veteran testified during a court martial hearing of a fellow soldier who was charged with, among other things, the sale of heroin. The Veteran testified that he bought heroin from the accused two to five times a week between February and August 1976, for a total of more than 50 transactions. He also testified that he last used drugs in August 1976. In statements to the VA, the Veteran indicated that as a result of his testimony he was assaulted in November 1977. The transcript of the Veteran's assailant's March 1978 court martial is contained in the claims file. The Veteran was assaulted in November 1977, although the assailant indicated he assaulted the Veteran as a result of a drunken dispute. During his testimony, the Veteran reported he suffered lumps on both sides of his head, a swollen forehead, two black eyes, swollen cheeks, and numerous bruises and marks from the waist up. He was examined at a hospital and released. He stated he was unable to perform physical training for two days, but otherwise did not miss duty. The Veteran's April 1975 enlistment evaluation included a normal clinical evaluation of his head, face, nose, and sinuses. He did not report a history of nose trouble, sinusitis, hay fever, or headaches. Service treatment records show that the Veteran complained of headaches and blood in his posterior oral pharynx after the November 1977 assault. Physical examination revealed multiple hematomas (both ears, one eye, and posterior auricular area), burst capillaries in his eyes (without blood in his pupils), blood in his right ear, and erythematous of his nose. His pupils were reactive to light and accommodation. Other pertinent service treatment records include: an August 1977 complaint of head and chest congestion, with headaches and tender sinuses, diagnosed as coryza; a January 1978 treatment record for a cough with yellow sputum and headache diagnosed as viral syndrome; and a July 1979 complaint of sinus congestion, cough and blisters, with an assessment to rule out strep. The Veteran denied a history of frequent or severe headaches, sinusitis, and nose trouble during his March 1979 and January 1980 evaluations. He was noted to have normal clinical evaluation of the sinuses and head during both evaluations as well. In November 2005, the Veteran reported that since his November 1977 assault he has suffered periodic nose bleeds, double vision, difficulty breathing through his nose, and drainage. He stated that the drainage caused him to become nauseated, causing him to vomit and irritating his esophagus. A November 2003 VA treatment record noted the Veteran suffered from nausea as a result of gastroesophageal reflux disease (GERD). VA treatment records from December 2003 show the Veteran complained of headaches, sinus pressure, cough with "ugly" sputum, and nausea. He was diagnosed with bronchitis/sinusitis. The physician indicated his headaches would improve with treatment for his bronchitis/sinusitis. He was also noted to suffer from hepatitis with a possible pancreatic mass. In January 2004, the Veteran was treated for pancreatitis and seizures. He reported "black outs." Although the Veteran denied alcohol use, the physician indicated he smelled of alcohol during treatment. He was noted to have been recently treated in the emergency department after he passed out, fell, and struck his nose. His nose was bloody and was questionably fractured. In November 2004, he again complained of vomiting and coughing up phlegm. In April 2006, the Veteran provided a statement that he has had "chronic and persistent nosebleeds, nausea from drainage, headaches and other complications" since his assault in November 1977. During VA treatment in January 2007, the Veteran reported he smoked one pack of cigarettes per day for the past 37 years. He also reported that friends "used to put cocaine in his drinks." In April 2007, the Veteran was scheduled for sinus surgery; however, due to a limited number of surgery dates the Veteran's surgery date was moved to accommodate a patient with cancer. The Veteran was contacted and offered additional dates for surgery, but he refused to have his surgery moved and became abusive with hospital staff. A VA physician then telephoned the Veteran to discuss rescheduling his surgery and the need to minimize smoking. The physician informed the Veteran that sinus surgery was not a "cure-all" for sinus disease and that his smoking was "likely contributing greatly to his nasal obstructin symptoms and sinus complaints." The Veteran stated that he was never going to quit smoking. The physician noted that the Veteran needed to minimize his smoking and preferably quit to maximize the likelihood of improvement following surgery. In May 2007, otolaryngology physician's discussed the Veteran's sinus issues, and their concerns regarding his minimal ethmoid opacification, persistent smoking with lack of a desire to quit and failed compliant with medical intervention. They also noted that otolaryngology literature suggests that when the sinus surgery is performed on smokers there is an increased risk of scar tissue. The Veteran was informed that if he wanted to undergo the surgery he would have to stop smoking first. During treatment in August 2007, the Veteran denied headaches, nose bleeds, discharge, sputum and sinus disease. In June 2009, the Veteran denied congestion and drainage. However, in August 2009 he complained of "bad sinuses." In August 2010, he denied headaches and a physical evaluation of his nose showed dry mucous membranes. In January 2011, the Veteran was treated for a seizure. He reported he developed a headache prior to the seizure. He complained of chronic headaches. He was noted to have a history of chronic narcotic use. His laboratory results were positive for opioids ,benzos, and alcohol. His pain medication contract with the VA was discontinued due to drug-seeking behavior, so the opioids and benzos were not prescribed medications. He was also noted to have gray sputum from "smoker's cough." As a result of his seizure he was noted to have fallen and struck his head. A CT scan was unremarkable. In February 2011, the Veteran was again treated for seizures. He reported falling and striking his head after slipping on the ice two week prior. He also admitted antifreeze consumption, and using "meds" he bought on the street. The working diagnosis at that time was a seizure due to alcohol withdrawal. The January 2011 CT scan was noted to show "diffuse cerebral atrophy and no mesial temporal sclerosis consistent." He reported that his seizures both occurred "in conjunction with smoking." He denied having a headache just after he suffered his second seizure; however he reported he had suffered from headaches for the prior two to three weeks after suffering a fall. In April 2011, the Veteran reported being involved in a drunk driving accident where his air bags deployed. In October 2010 the Veteran was afforded a VA examination. A February 2007 CT scan was noted to show pansinusitis with the greatest involvement of the ethmoid sinuses. The examiner noted that the 2007 CT scan was taken during a sinus infection, which has since resolved. The Veteran did not have structural damage that would cause chronic sinusitis. The examiner noted that the claims file showed that he was involved in a fight in service, and that he had a history of snorting cocaine and allergies. The examiner opined that the Veteran's headaches, sinus problems and nasal conditions were not due to or a result of military service because cigarette smoking, nasal cocaine sue and nasal allergies will cause sinus infections, headaches and nasal congestion. The examiner again stated that the CT scan did not show evidence of trauma which would be a factor for sinus infections. In a November 2012 addendum, the examiner noted that the Veteran's in-service facial trauma did not cause his sinus conditions. The examiner also noted that the treatment in August 1977 was for a common cold, and did not result in his current sinus conditions. The examiner noted that the Veteran had a CT scan in January 2011 which showed no evidence of sinus infection or structural damage from a previous head trauma that occurred in service. The examiner noted again that tobacco use, snorting cocaine and seasonal allergies can cause nasal congestion, and that the Veteran does not have chronic sinusitis as a result of military service. The Board concludes that the VA examiner's opinion is the most probative evidence of record as to whether the Veteran's claimed sinus condition and headaches are due to service. As noted, the VA examiner specifically found that the Veteran's sinus condition, nasal congestion and headaches were less likely than not due to his service, to include his head and face trauma. The examiner noted that the Veteran's tobacco use, cocaine use and allergies were the more likely cause of his sinus problems and nasal congestion. The Board recognizes that the VA examiner, in accordance with the Board's remand instructions, considered the August 1977 treatment for complaints such as congestion and tender sinuses, but that the examiner did not reference two other instances of treatment for similar symptoms in 1978 and 1979. However, the Board notes that the VA examiner's rationale was that the symptoms noted in August 1977 were entirely consistent with the common cold, that recent CT scan showed no evidence of structural damage from the head trauma in service, and that the Veteran had other significant factors in his history that were more likely to be the cause of his ongoing problems than the fight that occurred in service. Given this rationale, and the fact that the Veteran specifically denied having a history of headaches, sinusitis, or nose trouble at separation, which weighs strongly against finding that any of his in-service symptoms were chronic in nature, the Board concludes that remanding this case again to ensure that the VA examiner specifically acknowledged two other isolated instance of treatment for cold-related symptoms in service is unwarranted and would only needlessly delay adjudication of the claim. In this regard, the Board has considered the Veteran's assertion of having experienced chronic headaches and sinus trouble since service. As noted above, in adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra. (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board must conclude that the Veteran is a less than credible historian. His treatment records include numerous notations of drug-seeking behavior. He seeks narcotic medication through lying to his care providers, and through acting in one manner in front of care providers and another when he believed he was out of a care provider's sight. He exaggerated symptoms, and has been verbally abusive and coercive (threatening to sue, threatening to have a physician's license revoked, threatening to drink heavily) care or pharmaceuticals he is attempting to obtain. While treatment records since 2003 do show that the Veteran complained of sinus pressure, nasal congestion and headaches, the Board does not find the Veteran's statements that he has continuously suffered from nosebleeds, nasal congestion and headaches from service to the present credible. Certainly his service treatment records reveal that he suffered from congestion on a few occasions; however during his 1979 and 1980 evaluations he did not complain of frequent headaches or nasal congestion and he had a normal sinus evaluation. As noted, the Board finds that these denials by the Veteran weigh strongly against finding that the congestion and other symptoms for which he received treatment on three occasions in service were chronic in nature. Furthermore, given these contemporaneous denials of symptoms prior to separation, as well as other evidence showing the Veteran to be less than a credible historian, the Board must conclude that the Veteran's current assertions of chronic difficulties during and since service not credible. In summary, considering the medical evidence of record, the Veteran's lack of credibility, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a sinus condition or headaches, to include as a result of in-service trauma disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49 ORDER Entitlement to service connection for a sinus condition, to include as due to in-service facial trauma, is denied. Entitlement to service connection for headaches, to include as due to in-service facial trauma, to include as due to a sinus condition, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs