Citation Nr: 0001712 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 96-00 172A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the Navy from May 1944 to May 1946. He was a member of the Army Reserve called to active duty from August 1950 to April 1952. Upon discharge he apparently re-enlisted in the Army and served as a warrant officer until December 1970, when he retired with over 20 years of service. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, in part, denied entitlement to service connection for sinusitis. In May 1997, the Board remanded the case to the RO for additional development. The case has now been returned to the Board for appellate review. At the time the case was previously before the Board, the issues included entitlement to service connection for bilateral hearing loss and arthritis of the cervical spine. Those issues were granted by a rating decision issued by the RO in September 1998. Those two issues have thus been rendered moot. No other issues have been advanced by the appellant or otherwise developed or certified for appellate review. The Board notes that the appellant submitted a written statement, dated in November 1998, along with some medical documentation, in which he advanced a claim of entitlement to service connection for prostate cancer. The matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The evidence does not establish that the appellant currently has any sinusitis. There is evidence of sinusitis in-service, but the appellant has submitted no evidence showing any continuing or existing sinus pathology that is related to service, nor has he submitted any evidence showing a current diagnosis or treatment for any sinus disorder. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim for service connection for sinusitis. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION For purposes of consideration of a claim for VA benefits, a claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). As defined by the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court), a well grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claims is well grounded, except where the evidentiary assertions is inherently incredible or is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet. App. 19 (1993). These considerations pave the way for the analysis below. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by military service. 38 U.S.C.A. §§ 101, 106, 1110, 1131. In addition, service connection may 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). A claim for service connection must be accompanied by evidence establishing that the veteran currently has the claimed disability. See Chelte v. Brown, 10 Vet. App. 268 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. In the absence of proof of a present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992), Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The evidence in this case shows no evidence of any current sinus disorder and denial of the claim is warranted on the basis that the claim is not well-grounded as there is no current disability. Review of the medical evidence of record reveals that the appellant was treated by various private physicians between 1973 and 1994, mostly for cardiovascular and back problems. There is no indication that the appellant was ever diagnosed with any chronic sinus disorder during this time period. In July 1991, the appellant underwent a brain MRI at the HCA West Florida Regional Medical Center. The nasopharynx, paranasal sinuses and orbits all appeared to be satisfactory. The appellant was treated at the Ear, Nose and Throat Associates in Dothan, Alabama in 1993. In May 1993, examination demonstrated slight serous drainage. The appellant noted he had a little bit of spring congestion. The clinical impression rendered was mild rhinitis. The appellant was subsequently seen in July 1993. The nose and nasopharynx were negative. The oral cavity and oropharynx were clear. There were no clinical findings of sinusitis. The appellant was referred by the RO to a private practitioner for an ENT examination in January 1998. The appellant told the examiner he had a past history of sinus/nasal problems and pharyngitis with laryngitis, but he reported that he had not had any problems with his nose, sinuses or larynx during the previous several years. On physical examination of the nose, the mucosa were found to be healthy. The septum was in the midline. No lesions of the hypopharynx or the nasopharynx were observed. The examiner stated that there was no history of middle or inner ear infections. No sinusitis was diagnosed. Viewing the evidence in a light most favorable to the appellant, the evidence of record indicates that the appellant received in-service treatment for sinusitis that resolved without any complications or residuals. No clinical abnormality as a result of the claimed sinusitis has been medically demonstrated to be currently present. The appellant has not provided any medical evidence, except the statement of his opinions contained in his written statements to establish that he suffers from any sinusitis and his statements are not competent evidence as to medical diagnosis or causation. Moray v. Brown, 5 Vet. App. 463 (1993), Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Further, the Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. (Citation omitted.) In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Thus, the claim for service connection for sinusitis must be denied as not well-grounded. Where there is no medical evidence demonstrating that the claimed disorder currently exists, the claim is not well-grounded. See Montgomery v. Brown, 4 Vet. App. 343 (1993). Because the appellant's claim is not well- grounded, the VA is under no duty to assist the appellant in further development of the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where a claim is not-well grounded it is incomplete, and the VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). The Board finds in this case that the RO fulfilled its obligation to the appellant in its September 1995 Statement of the Case (SOC) and in its September 1998 Supplemental statement of the Case (SSOC) in which the appellant was informed that his current medical records were negative for any clinical evidence of any current sinus pathology. Thus, the Board concludes that the notice required in Robinette has been satisfied. Moreover, there is no indication that there are any available records which would make the claim well- grounded. Since the appellant has failed to present competent medical evidence that he currently suffers from any sinus disability, and since he has failed to present competent medical evidence that his claim of sinusitis is plausible, that is, he has failed to present medical evidence that links the alleged sinusitis to service, the claim for service connection for sinusitis must be denied as not well-grounded. Dean v. Brown, 8 Vet. App. 449 (1995). ORDER A well-grounded claim of entitlement to service connection for sinusitis not having been submitted, the claim is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals