Citation Nr: 0002683 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 93-25 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for kidney disease. 2. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Missouri Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active duty from September 1971 to June 1974. This case comes before the Board of Veterans' Appeals (Board) from a February 1993 rating decision of the Department of Veterans Affairs (VA), St. Louis, Missouri, Regional Office (RO), that denied service connection for depression, a kidney infection and chronic sinusitis. At a May 1993 hearing, the veteran withdrew the issue of service connection for depression. Hearing transcript, T., 2. In September 1995, the Board remanded the case for further development. The RO completed such development, and the case is again before the Board for final appellate review. FINDING OF FACT Competent evidence has not been submitted that links current sinusitis or kidney disease to military service in any way. CONCLUSION OF LAW A well-grounded claim of entitlement to service connection for sinusitis and kidney disease has not been submitted. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1996). REASONS AND BASES Factual Background Pre-service private medical records dated in February 1965 show that the veteran was seen for an upper respiratory infection. In August 1965 and March 1970, rhinitis was noted. The veteran's entry examination in August 1971 indicates that the veteran had pharyngitis of one year's duration and earaches for over one year. The veteran reported having or having had ear, nose or throat trouble. Clinical evaluation noted no pertinent abnormalities. Service medical records reveal that the veteran had an upper respiratory infection in October 1971. Later that month, he complained of pain in the ears, nasal congestion and a nonproductive cough. The impression was otitis externa. In November 1971, the veteran was treated for complaints of a sore throat. Service medical records dated in March 1972 show that the veteran had a runny nose with a cough. In May 1972, he complained of a cold and sinus congestion. He was treated for a sore throat in September 1972. The veteran was hospitalized in December 1972 to rule out the possibility of infectious hepatitis. Two weeks prior to admission, he had developed a fever and subsequently noted that he had bright red blood in his urine on two occasions. There were no pertinent findings. In January 1973, the service medical records show that the veteran complained of congestion. In March 1973, the veteran went to sick call with complaints of blood mixed with sinus drainage. The impression was probable upper respiratory infection or sinusitis. In December 1973, the veteran complained of a cold. Service medical records dated in February 1974 indicate that the veteran complained of his sinuses. He reported stuffiness and an inability to breathe through his nose. In April 1974, the veteran was treated for complaints of congestion. At the time of the veteran's service separation examination in May 1974, there were no pertinent abnormalities found. Private treatment notes/records dated beginning in November 1977 from various sources show that the veteran underwent treatment for respiratory symptoms. Private radiographic studies dated in September 1982 revealed moderate bilateral membrane thickening of the maxillary sinuses. In June 1988, X-rays revealed that there was maxillary sinus mucosal thickening, left greater than right. The veteran was hospitalized at a private facility in January 1989 for purulent nasal discharge. His past medical history included frequent episodes of nasal congestion. It was noted that his complaints of bloody nasal discharge and pain of the maxillary area were for the preceding 3-5 years. X-rays revealed maxillary sinus filled with probably pus and possibly some polypoid change. The impression was chronic sinusitis bilaterally, maxillary, admitted for corrective surgery. Private radiographic studies of the sinuses dated in January 1991 show that there was mild mucoperiosteal thickening of the maxillary sinuses, left greater than right. The veteran provided testimony at a personal hearing in May 1993. The veteran testified that he was treated during service on at least 4 occasions for sinus problems. T. 3. The veteran noted that he had been followed with a family doctor before service for problems. T. 4. The veteran indicated that he could have been treated for sinus problems by this doctor before entering service. T. 5. The veteran recalled an incident during service where he had blood in his urine. T. 5-6. He stated that he was seen after service for complaints of the low back, but the doctor told him it was a kidney disability. This occurred in about 1977. T. 6. He thought that he had microscopic blood in his urine at that time. T. 7. The veteran stated that he was denied re-entry into the service in about 1989-1990 because of sinus problems. T. 9. The veteran was afforded a VA examination in August 1997. It was noted that the veteran complained of recurrent sinusitis since about age 18. Following physical examination, the diagnosis was recurrent sinusitis since the age of 18. The veteran also had a history of being exposed to various fumes during the 1970's which aggravated his sinusitis. The examiner reviewed the veteran's claims file. The examiner opined that the veteran had recurrent sinusitis since age 18 (1970) and intermittently during his lifetime, including the military. The examiner recognized that the veteran related chronic sinusitis to his time in service when he was exposed to fumes, and the examiner's opinion was that this aggravated the production of his symptoms and also aggravated the condition of his sinusitis at that specific time. He re-stated that he felt that at various times during his military career, the veteran's sinusitis was aggravated. The etiology of the sinusitis remained unknown. He also opined that it was aggravated by multiple things, depending on his environment. The examiner subsequently provided an addendum to his aforementioned opinion. The examiner was asked to comment on whether there was any relationship between his current sinusitis and any sinus problems during service. The examiner reviewed the claims file, and his further opinion was that there was no objective documentation of aggravation of sinusitis in the 1970's, and specifically nothing related historically to any fumes. If what the veteran said was true, exposure to fumes might have aggravated the sinusitis, but since there was no objective evidence in the medical records to document this, the examiner could not objectively state that the fume exposure actually aggravated his present condition. The veteran was afforded a VA examination in October 1998. Past history included bloody discharge in 1972, for which he was treated with medication and has had no further problems. The veteran stated that he felt that his kidney disease was hereditary. He mentioned that one urinalysis might have shown some blood. As for sinusitis, the veteran reported postnasal drip and nocturnal congestion in the military. He noted how his military duties had included chipping paint from the inside of a ship. After that, he would blow out rust dust. The veteran stated that he had chronic sinusitis on discharge from the military. The pertinent diagnoses were resolved hematuria and chronic sinusitis. In October 1999, the RO received records from the Social Security Administration (SSA) on which the veteran's claim for benefits was based. Private psychiatric hospital records dated in July 1995 include a past history of surgery for sinus problems. In March 1996, private medical records note a history of sinus surgery for chronic sinusitis in the 1970's. A December 1996 private medical statement shows that he had a past medical history of sinus surgery for chronic sinusitis. Nose examination revealed that the veteran's nasal passages were about 80 percent occluded bilaterally secondary to mucosal edema. There was no pertinent impression. In February 1997, private medical notes indicate that the veteran sought hospitalization because of his sinuses. He had a prescription for sinus infection. The assessment in late February 1997 was chronic sinusitis. SSA benefits were approved based on primary and secondary diagnoses pertinent to psychiatric disability. Legal Criteria In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b) (1999). The veteran's own statement of preservice circumstances is not competent evidence that he had the same disorder prior to or during service. See Paulson v. Brown, 7 Vet. App. 466 (1995). The presumption [of soundness] only attaches where there has been an induction examination in which the later complained-of disability was not detected. Id. (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). 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 (West 1991); 38 C.F.R. § 3.306(a) (1999). The United States Court of Appeals for Veterans Claims (Court) has found that this presumption of aggravation applies where there is a worsening of the disability regardless of whether the degree of worsening was enough to warrant compensation; and that the veteran need not show a specific link between his in-service activity and the deterioration of his pre-service disability. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991); Hensley v. Brown, 5 Vet. App. 163 (1993). It is the Secretary's burden to rebut the presumption of in-service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. This means the base line against which the Board is to measure any worsening of a disability is the veteran's disability as shown in all of his medical records, not on the happenstance of whether he was symptom-free when he enlisted. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and certain chronic diseases, such as cardiovascular-renal disease, become manifest to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). Service connection may also be granted for a 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 threshold question to be answered is whether the appellant has presented evidence of well-grounded claims; that is, claims which are plausible and meritorious on their own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Preliminary Matters Initially, the Board notes that the development requested by the Board's 1995 remand has been satisfactorily completed. See Stegall v. West, 11 Vet. App. 268 (1998). The RO sought to obtain post-service medical records, and SSA records were also associated with the claims file. In an October 1995 letter, the veteran was afforded the opportunity to submit the names and addresses of his medical care providers. He was also provided VA examinations. In any event, since, as explained below, the veteran's claims are not well grounded, the VA does not have a duty to assist in the development afforded to well grounded claims. 38 U.S.C.A. § 5107. Although where a claim is not well grounded, the VA does not have a statutory duty to assist the claimant in developing facts pertinent to the claim, the VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1995) to advise a claimant of evidence needed to complete the application, including by taking appropriate action when the claim contains references of other known and existing evidence that may well ground the claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The Board is not aware of any other medical records that would render the veteran's claim capable of substantiation. Therefore, no further development is warranted. 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1995). Analysis - Kidney The veteran has contended that he has a kidney disorder secondary to a hepatitis infection that he had during service. Service medical records show that the veteran was hospitalized to rule out the possibility of hepatitis, and blood in the urine was noted by history. The service records do not demonstrate findings of kidney disease. The veteran's service discharge examination was negative for kidney disease. Although the veteran testified about being told after service that he had blood in his urine microscopically in about 1977, the post service medical records do not contain any conclusions that he has kidney disease or that there is a current kidney disease that is related to service. When the veteran was afforded a VA examination in October 1998, the examiner only found resolved hematuria. A claim for service-connection for a disability must be accompanied by evidence which establishes that the claimant currently has the claimed disability. Absent proof of a present disability there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ; Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In essence, the only evidence that has been submitted that indicates that the veteran has kidney disease as a result of service is the veteran's lay testimony and statements. Such statements are not sufficient to well ground the claim since the veteran does not have the requisite medical knowledge/expertise on which to base a competent opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of competent [medical] evidence that relates a current kidney disability to service, the claim for service connection for kidney disease must be denied as not well grounded. Savage v. Gober, 10 Vet. App. 489 (1997); Caluza, 7 Vet. App. at 506. Analysis - Sinusitis The veteran asserts that during service he inhaled a significant amount of rust dust which contributed to and aggravated his sinuses. As noted above, service connection may be granted for a disability that is incurred in or aggravated by service. 38 U.S.C.A. § 1110. Whether on the basis of incurrence or aggravation, the veteran must present medical nexus evidence that links a current disability to service in some fashion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). In this case, the veteran has presented evidence of current disability, sinusitis. Thus, one element for a well-grounded claim has been presented. Caluza, 7 Vet. App. at 506. Significantly, however, there has been no submission of medical nexus evidence that links the current disability to service, either by way of aggravation or incurrence. At the time of the veteran's service separation examination, there were no pertinent findings with regard to sinusitis. The absence of such findings or opinion tends to demonstrate that sinusitis was not incurred in or aggravated by service. The initial post service medical evidence first indicates treatment for respiratory symptoms in 1977, about 3 years after service discharge, and such records do not relate any manifestations or disability to service. Other post service private treatment records and an October 1998 VA examination reveal the veteran's history of surgery for sinus problems and/or the veteran's report of his in- service experiences. These records are not sufficient to well ground the claim since any findings associated with the post service examinations or treatment were not noted to be related to service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"). The veteran was also examined by VA in August 1997. During that examination, the doctor carefully noted the veteran's report of in-service complaints and experiences. Although the veteran is competent to testify as to his in-service experiences and symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses or causation competent. Therefore, while the veteran is competent to describe what happened to him during service, he is not able to provide a competent opinion with regard to the effects of such experience or diagnose a condition that occurred during service. The examiner, following review of the claims file, considered whether exposure to fumes during service might have aggravated the veteran's sinusitis and based on reported history alone, he thought that it might. Nevertheless, he ultimately concluded that there was no objective evidence that an in-service incident aggravated his present condition. It is the examiner's final conclusion with reasons therefor that constitute the opinion as to whether there is sufficient medical nexus evidence to well ground the claim. In light of the final opinion by the examiner that does not link a current sinus disability to service, the opinion contained in the 1997 VA examination is not sufficient to well ground the claim. In the absence of medical nexus evidence that tends to link any current sinusitis to service in any way, service connection must be denied, as the claim is not well grounded. Savage v. Gober, 10 Vet. App. 489 (1997); Caluza, 7 Vet. App. at 506. Other Matter Although the Board has denied this aspect of the appeal on grounds different from the RO, the appellant has not been prejudiced by this decision because the RO actually accorded the appellant greater consideration than the claim warranted. Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for kidney disease and sinusitis is denied. M. Sabulsky Member, Board of Veterans' Appeals