BVA9501361 DOCKET NO. 93-04 512 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for residuals of nasal surgery. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from May 1974 to March 1980, and beginning in March 1980 in the United States Army Reserves. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 1992 rating decision of the St. Louis, Missouri, Department of Veterans Affairs Regional Office (VARO). The Board notes that additional evidence was received by VARO within the 90 days following the certification of appeal. This evidence was subsequently forwarded to the Board along with the appellant's claims folder. While a review of the evidence indicates that it has not been previously considered by VARO, the Board has accepted this newly received evidence into the record under 38 C.F.R. § 20.1304 (1993). CONTENTION OF APPELLANT ON APPEAL The appellant contends that he has experienced sinus problems since he underwent corrective nasal surgery during service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that entitlement to service connection for sinusitis not warranted. It is further the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for residuals of nasal surgery is well grounded. FINDINGS OF FACT 1. Service medical records reflect that, in October 1978, the appellant underwent surgery to repair nasopharyngeal stenosis, a soft tissue obstruction in the nasopharynx, which was noted post- operatively to have improved his breathing; service separation examination in March 1980 and reserve reenlistment examination in April 1986 are entirely negative for complaints, findings, or manifestations of residuals of nasal surgery. 2. There is no objective evidence of any residual disability attributable to nasopharyngeal stenosis surgery; nor is there any objective medical evidence suggestive of a relationship between nasopharyngeal surgery during service in 1978 and the onset of sinusitis in 1989. 3. The appellant complained of upper respiratory symptoms on a number of occasions during service, but sinusitis was not found by either X-ray or clinical examination. 4. The first objective medical evidence of sinusitis was on VA outpatient treatment report dated in April 1989, approximately nine years after active service discharge. 5. The objective medical evidence of record does not establish a relationship between the development of sinusitis in 1989 and respiratory complaints noted during service. CONCLUSIONS OF LAW 1. Chronic sinusitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101,1110, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1993). 2. The appellant has not submitted evidence of a well grounded claim for service connection for residuals of nasal surgery. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The service entrance examination dated June 1974 showed no history of or medical findings for either sinusitis or difficulty breathing through the nose. In December 1977, the appellant complained of nose bleeding, sinusitis, and nasal pain. At that time, there was no diagnosis recorded. The appellant was prescribed Actifed and Ocean Spray. A lab report dated January 1978 indicated the absence of a streptococcus (strep) infection. In February 1978, the appellant complained of sinusitis of six months duration without relief, and an X-ray study was planned to rule out the presence of sinusitis. In August 1978, an X-ray study of the sinuses revealed no significant abnormalities. In September 1978, the appellant was seen for difficulty breathing through the nose. An X-ray study of the sinuses revealed no significant defects. In October 1978, the appellant was seen for difficulty breathing through the nose. Clinical findings indicated normal nasal chambers, a marked hyponasal voice, the inability to exhale through the nostrils, and a scarred and distorted soft palate. An X-ray study revealed the presence of a nasopharynx obstruction with no signs of an osseous abnormality. The appellant was diagnosed with nasopharyngeal stenosis, a soft tissue obstruction in the nasopharynx, and underwent surgery for repair of that condition. The Army hospital summary also dated October 1978 indicated that the appellant specifically reported "a life long history of difficult breathing through the nose" and "the almost total inability to exhale through his nostrils." Following repair of the nasopharyngeal stenosis, the appellant was noted to have had "definite and marked improvement in nasal breathing both on inhalation and exhalation." In August 1979, the appellant complained of a yellowish productive cough, sinus congestion, a sore throat, anorexia, and light-headedness occurring three times a week. Clinical findings showed a running nose, moderate inflammation of the throat with moderate to severe exudate, and clear lungs. The medical plan was to rule out strep throat with possible bronchial involvement. A throat culture one day later revealed no strep, and a culture two days later showed the presence of alpha strep and Neisseria sputum, a normal nonpathogenic flora. In October 1979, a throat culture was negative for beta strep. On separation examination in March 1980 and reserve reenlistment examination in April 1986, there were no complaints or findings of sinusitis. VA outpatient treatment report dated April 1989 reflects complaints of facial pain associated with sinus congestion and drainage. At that time, the appellant was diagnosed with recurrent sinusitis. On VA outpatient treatment report dated March 1991, the appellant was reported to have sinus problems by history. He was assessed with nasal allergies. VA outpatient treatment reports dated in July 1992 and April 1993 reflect an X-ray study of the sinuses. The X-ray studies revealed essentially similar findings for aerated and expanded sphenotic, maxillary, and frontal sinuses, absent mucosal thickening. There was no bony erosion or abnormality identified, but the sinuses bilaterally showed mucosal thickening. The impression was sinusitis. II. Analysis A. Well Grounded Claims The threshold question to be answered at the outset of the analysis of any case is whether the appellant's claim is well grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A § 5107(a) (West 1991). For service-connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1993). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. 38 U.S.C.A. 5107(a). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the appellant is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. (1993). In this case, the appellant's evidentiary assertions as to the presence of a residual disability attributable to corrective nasal surgery in service are inherently incredible when viewed in the context of the total record. Service medical records show that the appellant had complained of difficulty breathing during service, and that he was diagnosed with an obstruction of the nasopharynx in October 1978. This nasal obstruction was noted by history to have impeded the appellant's breathing for his entire life. Following the corrective surgery, the appellant's inhalation and exhalation was observed to have been markedly improved. The Board notes that nasopharyngeal stenosis, a condition pre-existing service, appears to have been resolved by surgery in October 1978 since there is no objective medical evidence of record for any residual disability related to corrective nasal surgery. Service medical records, including separation examination in March 1980 and reenlistment examination in April 1986, are negative for complaints, findings, or manifestations of a residual disability associated with repair of the nasopharyngeal stenosis during service. Similarly, VA outpatient treatment reports, including X-ray studies of the sinuses, dated between April 1989 and April 1993 do not reveal the presence of a residual disability related to repair of the nasopharyngeal stenosis. The appellant has presented no evidence of any residual disability, or aggravation of a pre-existing nasal condition, and as such, the claim is not well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994). The Board has considered the appellant's contentions with respect to a relationship between his current sinusitis and the nasal surgery in service, as well as the possibility of aggravation of a pre-existing nasal condition. However, we note that he lacks the medical expertise to enter a judgment regarding either the presence of a residual disability attributable to nasal surgery or a medical relationship between nasal surgery and the subsequent development of sinusitis. The Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Where there is no medical evidence of the claimed residuals during service, where there is no medical evidence linking the claimed disorder to service or an in-service event, or where the disorders are not currently demonstrated, the claim is not well grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Fields v. Derwinski, 90-933 (U.S. Vet. App. Dec. 2, 1991) (emphasis added). Accordingly, in view of the above, the undersigned concludes that evidence sufficient to establish that the claim to service connection for residuals of nasal surgery is well grounded has not been presented. B. Service Connection The appellant also seeks service connection for sinusitis. The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. Service-connection may be granted for a disability resulting from disease or injury incurred in or aggravated while on active duty. 38 U.S.C.A. § 1131 (West 1991). In the case of any disease diagnosed after discharge, service connection may be granted when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1993). Furthermore, for a 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 mere isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact shown to be chronic or where the diagnosis 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) (1993). Service medical records reflect that the appellant was treated and evaluated for his complaints of sinusitis between December 1977 and October 1979. However, X-ray studies of the sinuses revealed no significant defects or abnormalities, there was no finding of sinusitis when treatment was given for the respiratory complaints, and there were no complaints or findings of sinusitis indicated on either the service separation examination in March 1980 or reserve reenlistment examination in April 1986. The first objective medical evidence of sinusitis was on VA outpatient treatment report dated in April 1989. Examination at that time revealed complaints for facial pain along with sinus congestion and drainage. Clinical findings for sinusitis were confirmed by X-ray studies conducted in July 1992 and April 1993. In view of the above, the Board finds that the objective medical evidence of record does not establish a relationship between the development of sinusitis in April 1989 and the episodes of respiratory discomfort in service. See 38 C.F.R. § 3.303(d) (1993). Furthermore, where a the condition noted during service is not, in fact shown to be chronic, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1993). The Board finds that there is no evidence that the appellant experienced sinus related problems either during service or post discharge until April 1989 when sinusitis was found. As such, chronicity and continuity of symptomatology is not shown as required for service connection under 38 C.F.R. § 3.303(b) (1993). The Board acknowledges the appellant's contentions with respect to the relationship between he development of sinusitis post service and the episodes or upper respiratory symptoms in service. Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). Accordingly, service connection for sinusitis is not warranted. ORDER Service connection for sinusitis is denied. Having found the claim not well grounded, the appeal of service- connection for residuals of nasal surgery is dismissed and the VARO rating decision of August 1992 from which this appeal arose is vacated. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.