Citation Nr: 0815226 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 06-39 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for chronic sinusitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The veteran had active service from December 1982 to September 1986 and from February 1989 to April 2005. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that denied service connection for sinusitis. The claims file was subsequently transferred to the RO in Reno, Nevada. In February 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge and a transcript of his testimony is associated with the claims file. FINDING OF FACT The veteran has current chronic sinusitis that, as likely as not, began during service. CONCLUSION OF LAW Chronic sinusitis was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Given the favorable nature of the Board's decision on the issue of entitlement to service connection for sinusitis, there is no prejudice to the appellant, regardless of whether VA has satisfied its duties of notification and assistance. II. Service Connection The veteran seeks service connection for chronic sinusitis. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 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 manifestations 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 entity 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). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service medical records reveal that the veteran underwent a septoplasty in 1993 due to nasal obstruction, septal deformity and hypertrophy of turbinates. In addition, the service medical records reflect that the veteran was treated with a 10-day course of antibiotics for sinusitis, diagnosed in January 1999 and June 2000. The symptoms included congestion, sinus pain and pressure, headache and fatigue. In August 2001, the veteran had a computerized tomography (CT) of his sinuses because of chronic sinus infections. Acute deviation of the nasal septum of approximately 40 degrees was shown. The veteran underwent another septoplasty in July 2004 because of a deviated septum. The veteran maintains that the in-service procedures did not provide relief of his symptoms. At VA examination in September 2005, the veteran's past medical history was noted; however, the examiner determined that the veteran did not have a sinus infection at the time of the VA examination, and x-rays of the veteran's sinuses in September 2005 were normal. The veteran's claim was denied by an April 2006 rating decision based on a finding of no current disability. In support of his claim, however, the veteran submitted a memorandum dated June 2006 from his in-service treating physician, Dr. Johnson. Dr. Johnson, an otolaryngologist, indicated that he treated the veteran for three years prior to his retirement from the Air Force, and that he had a longstanding history of chronic sinusitis symptomatic of frontal headache, mid-facial pain, congestion, and rhinorrhea. Dr. Johnson noted that the veteran had been prescribed antihistamines and inhaled nasal steroids in the past for allergic rhinitis symptoms but found it difficult to use the inhaled steroids and received no prophylactic benefit from the use of antihistamines. Dr. Johnson also indicated that the veteran was typically prescribed outpatient antibiotics roughly 4 to 5 times per year for his sinusitis, and noted that conservative therapies included Flonase, Claritin, Entex, and saline rinses with no improvement. Additionally, the veteran's symptoms were not improved with septoplasty in 2005. At VA examination in February 2007, a partial obstruction of 80 percent bilaterally was noted, and there was tenderness in both maxillary areas, although no purulent discharge or crusting was seen. The examiner essentially opined that the veteran did have evidence of acute sinusitis in service, but did not have evidence of a chronic condition. At his personal hearing in February 2008, the veteran reiterated his contentions that he is treated 5 to 6 times per year for sinus infections. In support of his claim, the veteran submitted additional evidence subsequent to the hearing, along with a waiver of review by the Agency of Original Jurisdiction. The newly submitted evidence consists of a list of the veteran's medications prescribed since 1999, and shows that the veteran was prescribed antihistamines, such as allegra, decongestants including entex and nasal spray, and numerous antibiotics commonly prescribed to treat sinusitis during that time period, including levofloxacin, azithromycin, augmentin, and cephalexin. In addition to this list, Dr. Johnson submitted another memorandum dated in February 2008 regarding the veteran's continuous treatment for sinusitis since 2003. Dr. Johnson noted that the veteran averaged 6 or more outbreaks per year, and is typically prescribed outpatient antibiotics roughly 3-5 times per year for his sinusitis when his saline rinses fail. Dr. Johnson also noted that the veteran was often treated without a patient encounter form being generated when he was stationed in the ENT clinic at the air force base during service. This newly submitted evidence is highly probative because it shows that the veteran has been treated with antibiotics for sinusitis on a fairly consistent basis since service. Additionally, the veteran's in-service treating physician specifically noted that all of the veteran's in-service treatment may not have been recorded, given the fact that the veteran worked closely with the ENT clinic during his military service. The VA examiner in September 2005 found that the veteran did not have sinusitis on the day of the VA examination, and therefore essentially determined that a chronic condition did not exist. The February 2007 examiner opined that the veteran did not have a current chronic sinusitis condition based on the service medical records, even though he did present with symptoms of nasal obstruction and tender sinuses on the day of examination. That notwithstanding, the newly submitted evidence supports the veteran's contentions that he had a chronic sinus condition during service that has continued to the present day. In sum, the record contains evidence both for, and against the veteran's claim. Greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence, Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the Board assigns greater weight to the evidence submitted by the veteran's treating physician who clearly states that the veteran has had a chronic condition since service for which he has been continuously treated to date. Accordingly, service connection is warranted. ORDER Service connection for chronic sinusitis is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs