BVA9506008 DOCKET NO. 93-08 982 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension, rhinitis, sinusitis, asthma, and emphysema. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran served on active duty from July 1950 to May 1954. He also had other periods of service and had completed 5 years, 11 months, and 19 days of active service at the time of his discharge from service in May 1954. This appeal arises from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied service connection for hypertension, rhinitis, sinusitis, asthma, and emphysema. The case was received at the Board of Veterans' Appeals (Board) in April 1993. The issue of entitlement to unreimbursed medical expenses, mentioned in the veteran's letter of April 1993, is referred the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has sinusitis and rhinitis that began in service and that he has hypertension, asthma and emphysema that are related to his sinusitis/rhinitis condition that was treated in 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, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted evidence of well-grounded claims for service connection for hypertension, sinusitis, asthma, and emphysema. It is also the decision of the Board that the evidence supports granting service connection for rhinitis. FINDINGS OF FACT 1. The claims for service connection for hypertension, sinusitis, asthma, and emphysema are not supported by competent evidence linking these conditions to an incident of service, and neither hypertension nor emphysema has been competently linked to a service-connected disability. 2. Chronic rhinitis was present in service. CONCLUSIONS OF LAW 1. The claims for service connection for hypertension, sinusitis, asthma, and emphysema are not well-grounded. 38 U.S.C.A. § 5107 (West 1991). 2. Chronic rhinitis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from July 1950 to May 1954. He had 5 years, 11 months and 19 days of active service at the time of his discharge from service in May 1954. The service medical records show that the veteran underwent medical examination in May 1948. His blood pressure was 120/60. A report of medical history completed by the veteran when he was 18 years of age (he was born in September 1931) notes a history of pneumonia in 1938. A report of treatment in April 1951 notes that he underwent a sinus wash that was negative. Four large polyps were removed from the left side of his nose. It was noted that he had nasal allergy. Later in April and May 1951, he was seen at an allergy clinic. In July 1951, he was started on a desensitization regimen of biweekly injections of antigens and increasing strength. In August 1951, it was noted that he had developed a generalized reaction of tachycardia, chill and flushing from injection of antigen, and was referred to the allergy clinic. At that time, he was started on a new desensitization series with a weaker set of antigens. The service medical records show that the veteran was seen in September 1951 for a bilaterally obstructed nasal passage and was transferred to a hospital. A report of his hospital stay from September to October 1951 notes that physical examination was essentially negative, except for nasal abnormalities. The nasal examination revealed the inferior turbinates to be boggy, bilaterally, and a profuse amount of mucoid discharge was present. There was no evidence of nasal polypi. The impression was allergic rhinitis. During his hospital stay, the inferior turbinates were cauterized, bilaterally. Following the slough of the cauterized mucosa, the airways appeared adequate, bilaterally. He was advised to continue his allergy desensitization program. The veteran was hospitalized in June 1952 for complaints of cellulitis without lymphangitis from the left maxillary area. He complained of swelling and tenderness under the left eye for 24 hours. On examination, there were edema and erythema covering an area the size of a silver dollar. He was treated with medication and hot compresses for the eye. Service medical records show that the veteran was hospitalized on October 6, 1952, with complaints of inability to breathe through his nose. He reported that his breathing difficulties had been unaltered by antihistamines, nose drops, and similar treatment. On examination, there was marked enlargement of the turbinates, bilaterally. He was transferred to another medical facility on October 7. The report of his hospital stay later in October 1952 notes that he had allergic, chronic rhinitis. Laboratory tests were essentially negative, except for skull and sinus X-rays which reportedly revealed a radiolucent body defect measuring 1.5 centimeters in diameter in the roof of the left orbit of the frontal bone. The appearance was compatible with a cholesteatoma. The diagnosis was changed from allergy manifested by rhinitis to unknown allergen. He was transferred to a hospital in the continental United States. A report of hospitalization from October 30 to November 12, 1952, reflects complaints of inability to breathe through the nose. It was noted that the veteran had a history of recurrent allergies and rhinitis for the past five years. It was also noted that he had been treated with antihistamines and a series of desensitization shots with some relief. He reportedly had developed allergic rhinitis three months earlier while overseas. He was transferred to another hospital. A report of his hospital stay from November 12, 1952, to January 1953 shows that his physical examination was entirely within normal limits. The nasal mucous membranes were edematous, moist and pink. The response to vasoconstriction was good, and there was no pus present. Typical allergic appearance was absent. The sinuses transilluminated satisfactorily. The nasopharynx did not appear abnormal. Consultation in ENT (ears, nose, throat) considered the condition to be autonomic in origin, and stated that a psychosomatic etiology was suspected. Laboratory studies during this hospitalization were unremarkable. The diagnosis was changed to rhinitis, vasomotor, perennial (non-allergic). The service medical records show that the veteran was hospitalized in May 1953 for treatment of a gastrointestinal disorder. His medical history was reportedly negative, except for repeated bouts of asthma and some allergic rhinitis. Physical examination during this hospitalization showed normal blood pressure. An allergy clinic consultation in service, dated in June 1953, indicates that the veteran's vasomotor rhinitis complaints had been notable for their subjective nature. It was reported that no clear-cut objective evidence of disability had ever been found. The examiner concluded that no further study of the veteran by the allergy clinic was warranted. The veteran submitted his initial application for VA compensation in May 1991. In it, he reported that he had been treated for rhinitis and asthma in service and that his treatments since discharge from service had been too long ago to remember. In a statement accompanying his application, he reported having treatment for rhinitis and asthma in service and treatment over the years for these conditions that did no good and, therefore, had not sought additional treatment for these problems. VA medical reports show that the veteran was seen on an outpatient basis for various disorders in 1991 and 1992. Elevated blood pressure readings were recorded on several dates. These reports show that he was receiving treatment for hypertension that was controlled with medication. The veteran underwent VA examinations in March 1992. On general medical examination, he gave a history of having hypertension for six years that was currently controlled with medication. He also gave a history of treatment, including hospitalization, in service for allergic rhinitis and sinusitis. He said that he was hospitalized in service for the flu and afterwards was diagnosed as having "weakness of lungs." He stated at that time he had a chronic cough, but denied coughing since 1954. He noted that he was diagnosed as having asthma and was hospitalized in service for four months. He said he treated himself with nasal sprays. He complained of "throat and lungs filled with phlegm and inability to breathe until he used a nasal spray," especially in the morning. His blood pressure was 166/80. Auscultation of the lungs revealed moderate prolongation of expiratory phase which resembled findings in veterans with a moderate degree of emphysema. Otherwise, his lungs were clear. He had a moderate kyphosis of the thorax. X-rays of the chest showed no active disease. The diagnoses were chronic tobacco use with probable moderate COPD (chronic obstructive pulmonary disease), hypertension, and suspected carcinoma of the prostate. The veteran also underwent VA ENT examination in March 1992. He gave a history of having a nasal polypectomy and a nasal septoplasty in service. Examination of the nose revealed the right middle turbinate was enlarged and he had a septal deformity. The mucosa was engorged, and there was a clear mucous discharge consistent with allergic rhinitis. There were no polyps or purulent drainage. The nasopharynx, oral cavity, oropharynx, hypopharynx, and larynx were normal. X-rays of the paranasal sinuses showed no abnormalities. The assessments included allergic rhinosinusitis. VA pulmonary function studies in April 1992 showed the FEV1 (forced expiratory volume at one second) to be normal, but the FEV1/FVC (forced vital capacity) ratio and FEF (forced expiratory flow rate) were 25 to 75 percent reduced. The MVV (maximum voluntary ventilation) was also reduced. The normal airway resistance and decreased specific conductance were considered to indicate a peripheral or small airway disease. The TLC (total lung capacity) was reduced. Following administration of bronchodilators, there was slight response. II. Legal Analysis A. Service Connection for Hypertension, Sinusitis, Asthma and Emphysema The threshold question in this case is whether the veteran has presented evidence of well-grounded claims for service connection for hypertension, sinusitis, asthma, and emphysema; that is, claims that are plausible. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). If he has not presented well-grounded claims, his appeal must fail, and there is no duty to assist him further in the development of the claims because such additional development would be futile. "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well-grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the claimed disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well-grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). In order to establish service connection for a disability, the evidence must demonstrate disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of 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." 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 may be legitimately questioned. If 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). Service incurrence will be presumed for hypertension which becomes manifest to a degree of 10 percent or more within one year from date of termination of active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.303, 3.309 (1994). A summary of the veteran's hospitalization in service in May 1953 notes a history of asthma, but the service medical records do not show the presence of a chronic disorder, nor do they show the presence of hypertension, sinusitis, or emphysema. While rhinosinusitis was diagnosed at the time of the veteran's VA ENT examination in 1992, VA X-rays of the paranasal sinuses in 1992 were negative. The post-service records reflect the presence of hypertension and respiratory conditions (classified as COPD) many years after service, but they do not medically link either condition to service. While the veteran maintains that his hypertension and respiratory conditions are related to rhinitis problems he experienced in service, he is a layman who does not have the medical expertise to make competent conclusions as to medical causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). To be well-grounded, claims must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The veteran says that he has hypertension and respiratory conditions related to service, but he has failed to submit competent evidence to support his allegations. Hence, his claims for service connection for hypertension, sinusitis, asthma, and emphysema must be dismissed as not well-grounded. Jones v. Brown, 7 Vet. App. 134 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); Grivois v. Brown, 6 Vet.App. 136 (1994). The RO is advised that decisions on the merits on these claims prior to and including this decision are to be regarded as dismissals, without finality as to the merits. Grottveit, 5 Vet.App. 91; Grivois, 6 Vet.App. 136. As finality on the merits does not attach, there can be no prejudice to the veteran in dismissing the claims, even though the RO decision was on the merits. Bernard v. Brown, 4 Vet.App. 384 (1993). B. Service Connection for Rhinitis The service medical records show extensive treatment for rhinitis, whether considered autonomic or organic in nature. The veteran reports that he received treatment for this condition by physicians, but he has been unable to recall or provide the names of the treating physicians. He also reports that this treatment was not ameliorative and consequently did not seek additional treatment. The service medical records do, however, corroborate his statements of the extensive treatment for rhinitis in service which did not resolve, and the post-service records indicate that he underwent VA examination in 1992 that demonstrated allergic rhinitis. After consideration of all the evidence, it is the Board's judgment that it is in relative equipoise on the presence of "chronic" rhinitis in service, thereby allowing the veteran to prevail on the claim for service connection for rhinitis. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The claims for service connection for hypertension, sinusitis, asthma, and emphysema are dismissed as not well-grounded. Service connection for rhinitis is granted. M. CHEEK 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.