Citation Nr: 0003548 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-13 229 ) DATE ) ) On appeal from 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 chronic obstructive pulmonary disease (COPD). 3. Entitlement to service connection for asthmatic bronchitis. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from September 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 1996, a hearing was held at the RO before the undersigned. The Board remanded this case in October 1996 for further development. The case has returned on appeal. The issues of entitlement to service connection for COPD and asthmatic bronchitis will be addressed in the remand section of this action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's claims of entitlement to service connection for asthmatic bronchitis and COPD are supported by cognizable evidence demonstrating that the claims are plausible and capable of substantiation. 3. Chronic sinusitis was present during active service. 4. Chronic sinusitis is not shown to have clearly and unmistakably existed prior to service. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for asthmatic bronchitis and COPD are well grounded. 38 U.S.C.A. § 5107. 2. Chronic sinusitis was incurred as a result of military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1116, 5107(b) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Well-grounded determination The veteran's claims for service connection for sinusitis, asthmatic bronchitis, and COPD, to include as due to service exposure to Agent Orange, are well grounded within the meaning of 38 U.S.C.A. § 5107(a). Additionally, the facts relevant to the issues have been properly developed and the statutory obligation of VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). With respect to these claims, Carl Claxton, D.O., attributed COPD, chronic sinusitis, bronchiectasis, and asthmatic bronchitis to the veteran's reported exposure to Agent Orange while in the Republic of Vietnam. In addition, the veteran has testified under oath that he was exposed to Agent Orange during service, and that he subsequently incurred these disorders as a result. Given that there is competent evidence of the current disabilities, the veteran's lay statements of exposure to Agent Orange, and competent evidence of a nexus between the reported inservice exposure and the current disabilities, the Board finds these claims well grounded. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). II. Service connection for sinusitis A. Background By decision dated in October 1974, the RO denied entitlement to service connection for chronic sinusitis. In August 1981, the RO denied the application to reopen the veteran's claim for entitlement to service connection for chronic sinusitis because new and material evidence had not been submitted. In the same decision, the RO also denied entitlement to service connection for chronic sinusitis secondary to exposure to Agent Orange. However, after the August 1981 RO decision, the regulations regarding service connection for disabilities claimed to be residuals of Agent Orange exposure underwent liberalizing changes. In an April 1994 rating decision, the RO determined that service connection for chronic sinusitis, to include as due to exposure to Agent Orange was not warranted. Where a claim is based upon a substantive right created by statutory or regulatory provisions that did not exist at the time of the prior final denial of the claim, the intervening change in law is itself sufficient to change the factual basis, and de novo review is warranted. 38 U.S.C.A. § 7104(b) (West 1991 & Supp. 1998); Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994), cert. denied 115 S. Ct. 61 (1994). Additionally, the claim for service connection for chronic sinusitis as directly related to service, and as a residual of Agent Orange exposure, is one claim for service connection for chronic sinusitis based on different theories of service; these are not separate claims. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997); cf. Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996). Therefore, the Board finds that the issue currently before the Board is entitlement to service connection for chronic sinusitis, to include claimed as a residual of Agent Orange exposure. B. Relevant laws Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability in such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions and hardships of service. 38 C.F.R. § 3.306. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed in 38 C.F.R. § 3.309(e) 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. If a veteran was exposed to an herbicide agent during active military, naval, or air service, chloracne shall be service-connected, even though there is no evidence of such disease during service, if it is manifested to a compensable degree within a year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. §§ 1112, 1113, 1116; 38 C.F.R. §§ 3.307, 3.309(e). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). C. Analysis Based on a thorough review of the evidence, the Board finds that entitlement to service connection for chronic sinusitis is warranted on a direct basis for the following reasons. First, there is no credible evidence that the veteran experienced chronic sinusitis prior to service. For example, the veteran's March 1965 pre-induction examination report is negative for chronic sinusitis. Although the veteran reported in September 1966 that he had had sinusitis by history, a service examiner noted that this was not considered disabling. While the appellant certainly is capable of providing evidence of symptomatology, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). Moreover, the September 1966 induction examination report is negative for sinusitis. Therefore, as there is no credible evidence to the contrary when he entered service, the Board finds that the veteran did not have a preexisting chronic sinusitis condition, and the presumption of soundness has not been rebutted. Second, the remaining service medical records clearly show that the veteran experienced severe, permanent sinusitis during his service in the Republic of Vietnam and on return to the United States. For example, an October 1967 physical profile record indicates that the veteran had permanent chronic sinusitis. The profile restricts the veteran from serving in a tropical climate, and orders weekly allergy injections. Furthermore, an October 1967 clinical record provides the following medical history. The veteran reported intermittent allergies since he was 14. The symptoms were characteristically very mild in the winter with seasonal exacerbations beginning in the spring and through summer, with very severe symptoms in August. When he arrived in Vietnam in February 1967 his symptoms became very severe and continuous. Antihistamines and steroids provided no relief. His superior officer sent him for medical attention. The examiner diagnosed chronic sinusitis. In November 1967, another physical profile reveals a diagnosis of chronic sinusitis that was incurred in the line of duty and did not exist prior to service. The profile report also indicates that he was to be given duties with permanent assignment limitations. An April 1968 service x- ray report shows evidence of bilateral maxillary and possibly ethmoid sinusitis. An incomplete May 1968 service allergy clinic treatment report indicates that the veteran's condition had not improved. The veteran provided an eight- year history of spring and summer allergies that were not bad until he went to the Republic of Vietnam. Service physicians in the Republic of Vietnam transferred the veteran to Japan where he underwent allergy studies. There, he received injection therapy. His problems continued when he arrived at Fort Sill, Oklahoma. While this report is incomplete, the fact that the service sent him back to the United States because of his allergies reflects the severity of the veteran's sinus disorder. The Board finds the foregoing evidence compelling because it shows that he was routinely treated for chronic, permanent sinusitis during his tour of duty. Although the veteran's August 1968 "REFRAD" examination report is negative for sinusitis, the Board finds that it lacks probative weight when compared with the service medical records as a whole. The service medical records show that over a sustained period of time the veteran experienced severe, permanent, chronic sinusitis through May 1968. In comparison, the Board finds that the August 1968 examination report, alone, cannot negate the findings in service medical records. Thus, the Board finds that the service medical records convincingly show that the veteran had chronic, permanent sinusitis while in service. Third, the post-service medical evidence shows that the chronic sinusitis continued after service. For example, in August 1974 a VA otolaryngologist diagnosed the veteran with moderate, allergic rhinosinusitis based on x-ray studies. This finding clearly supports the veteran's contention that his chronic sinusitis continued after discharge. It is important to note that the VA otolaryngologist also commented that the veteran's sinus disorder developed during childhood and, thus, it pre-existed service. Nevertheless, the Board finds that this opinion lacks probative weight in comparison with the service medical records. As noted previously, the induction examination is negative for chronic sinusitis. Although the veteran gave a history of allergies at induction, there is no competent medical evidence at that time that he had chronic sinusitis. See Espiritu, 2 Vet. App. at 494. The Board finds the service medical records are controlling because they are based on evaluations of the veteran at entrance and during service. In contrast, the VA otolaryngologist reached his opinion almost ten years after the veteran entered service. Thus, the Board does not find the VA otolaryngologist's opinion persuasive. Even assuming, however, that chronic sinusitis pre-existed service, the service medical records clearly show that it increased in severity and became permanently chronic during service. Thus, service connection based on aggravation would be warranted in any case. 38 C.F.R. § 3.306. The Board further notes that subsequent VA and private medical records show that the veteran has continued to experience chronic sinusitis. Significantly, in a June 1996 written statement, Dr. Claxton attributed the veteran's chronic sinusitis to his service in Vietnam, where he was presumably exposed to Agent Orange. It is important to note that the Board limits the probative value of Dr. Claxton's statement specifically to the chronicity of the veteran's sinusitis. In other words, Dr. Claxton's statement provides a medical nexus between the chronic sinusitis diagnosed in service and the current disorder. Therefore, the Board finds Dr. Claxton's statement credible on that basis. The Board does not find the doctor's statement credible with respect to exposure to Agent Orange, however, because there is no credible objective evidence in the record that the veteran was exposed while in the Republic of Vietnam. As noted, sinusitis is not a presumptive condition. 38 C.F.R. §§ 3.307, 3.309. The Court has indicated that unless a veteran suffers from one of the presumptive diseases listed under 38 C.F.R. § 3.309(e), a veteran's exposure to Agent Orange will not be presumed. See McCartt v. West, 12 Vet. App. 164 (1999). Instead, the appellant has to provide evidence indicating exposure to Agent Orange. McCartt at 168. His descriptions of exposure, without corroborating competent evidence, are insufficient. Hence, although the Board finds that Dr. Claxton's statement shows that the chronic sinusitis noted in service is more likely than not related to the current condition, his statement does not persuasively show that the veteran was exposed to Agent Orange while in service. The Board will address this point further in the Remand section of this action. Accordingly, given that the veteran did not have pre-existing chronic sinusitis, and that he developed chronic, permanent sinusitis in service, which has continued thereafter, the Board is of the opinion that the evidence warrants the grant of the benefit sought on a direct basis. 38 C.F.R. § 3.303, Savage, 10 Vet. App. at 498. Given that service connection has been granted on a direct basis, the Board will forego an analysis with respect to service connection due to exposure to Agent Orange. ORDER The claims for entitlement to service connection for asthmatic bronchitis and COPD are well grounded. Service connection for sinusitis is granted. REMAND As noted above, given that the claims of entitlement to service connection for COPD and asthmatic bronchitis are well grounded, VA has the duty to assist the veteran in developing facts pertinent to his claim. 38 C.F.R. § 3.159 (1999). Unless a veteran suffers from one of the presumptive diseases listed under 38 C.F.R. § 3.309(e), a veteran's exposure to Agent Orange will not be presumed. See McCartt, 12 Vet. App. 164. Instead, the appellant has to provide evidence indicating exposure to Agent Orange in order to satisfy the second element of Caluza (evidence of incurrence or aggravation of a disease or injury in service). McCartt, 12 Vet. App. at 168. The Board notes that COPD and asthmatic bronchitis are not presumptive disorders pursuant to 38 C.F.R. § 3.309(e), and exposure to Agent Orange has not been shown in the record. Dr. Claxton, however, has related the current COPD and asthmatic bronchitis to exposure to Agent Orange while the veteran served in the Republic of Vietnam. Therefore, the duty to assist mandates further development of these issues. For example, the RO must request that the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (formerly the United States Army and Joint Services Environmental Support Group (ESG)) research available unit records for evidence of exposure to Agent Orange. If, after reviewing the records from USASCRUR, the RO determines that the veteran's claimed exposure to Agent Orange is verified, then it should request an opinion concerning the etiology of the veteran's disorders prior to adjudicating the claims. In this regard, the June and November 1997 VA opinions are inadequate. With respect to these inadequate opinions, the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the October 1996 Remand directed the examiner to provide an opinion concerning the relationship, if any, between the veteran's respiratory disorders with exposure to Agent Orange, and to provide a complete rationale. However, the June 1997 opinion is inadequate because it appears to be based on an inaccurate medical history. For example, the examiner noted that the COPD and the asthmatic bronchitis were related to Agent Orange in service because they began within a year or two after being reportedly exposed in service. The medical record does not support this finding, however. Instead, the record shows that COPD and asthmatic bronchitis were not diagnosed until many years after service. Likewise, the November 1997 opinion is inadequate because no rationale was provided to support the conclusion that the disorders were not related to exposure to Agent Orange. Furthermore, the report is handwritten and barely legible. Therefore, the Board finds that the VA examiners did not fully comply with the October 1996 remand instructions. Stegall, 11 Vet. App. 268. To reiterate, another medical opinion is only necessary if the RO determines, based on the records from USASCRUR, that the veteran was exposed to Agent Orange during service. Accordingly, the case must be returned to the RO for the following: 1. The RO should contact the veteran and request that he provide any information that might corroborate his allegation that he was exposed to Agent Orange during his service in the Republic of Vietnam. He should be requested to furnish as much detail as to the claimed exposure as possible. 2. The RO should then provide the veteran's response, the veteran's service personnel records, and any other relevant information to the U.S. Armed Services Center for Research of Unit Records (USASCRUR) to research available unit records for evidence of the veteran's claimed exposure to Agent Orange while in the Republic of Vietnam. 3. If the RO determines that the veteran was exposed to Agent Orange during his service in the Republic of Vietnam, the RO should arrange for an appropriate VA pulmonary specialist, if available, to review the veteran's claims file and offer an opinion as to whether it is at least as likely as not that the veteran's COPD and/or asthmatic bronchitis were caused by exposure to Agent Orange in service. The claims files must be made available to and reviewed by the examiner prior to the requested study, and this should be noted in the examiner's final report. The examiner should also comment, if possible, with regard to the statements by Dr. Claxton and the June and November 1997 VA examiners discussed earlier in this action. If the physician feels a physical examination is necessary, it should be scheduled. All opinions must be supported by a written rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examination report must either be typed or written legibly. 4. When the requested development has been completed, the RO should readjudicate the case. If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board, if in order. The veteran is hereby informed that he has a right to present any additional evidence or argument while the case is in remand status. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purpose of this remand is to assist the veteran and to resolve a question of medical complexity. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals