Citation Nr: 1320471 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 07-02 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for allergic rhinitis. 2. Entitlement to service connection for chronic maxillary and bilateral ethmoid sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Although the Veteran initially requested a Central Office Board hearing in January 2007, he subsequently withdrew his hearing request in March 2007. See 38 C.F.R. § 20.704 (2012). In May 2010, the Board remanded the issues of whether new and material evidence had been presented with respect to the claims now on appeal. In February 2013, the Board determined that the present inquiries concerned original claims for service connection, rather than whether new and material evidence had been received. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The service connection claims were remanded for further development. The case has since returned to the Board. The Board acknowledges that additional evidence was received following the March 2013 Supplemental Statement of the Case (SSOC). On review, the evidence appears to be duplicate. Regardless, both the Veteran and his representative have indicated their intent to waive RO consideration of such evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2012). The Virtual VA eFolder has been reviewed. FINDINGS OF FACT 1. In September 2004, the Veteran submitted a claim of entitlement to service connection for allergic rhinitis and maxillary and bilateral ethmoid sinusitis. 2. The Veteran is service-connected for nasal fracture, post-operative septorhinoplasty and rhinoplasty, rated as noncompensable from September 8, 2004. 3. The evidence is at least in relative equipoise as to whether the currently diagnosed allergic rhinitis and chronic maxillary and bilateral ethmoid sinusitis are aggravated by the service-connected nasal fracture, post-operative septorhinoplasty and rhinoplasty. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for allergic rhinitis secondary to the service-connected nasal fracture, post-operative septorhinoplasty and rhinoplasty, are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012); 3.310 (prior to October 2006). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for chronic maxillary and bilateral ethmoid sinusitis secondary to the service-connected nasal fracture, post-operative septorhinoplasty and rhinoplasty, are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012); 3.310 (prior to October 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veteran Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the claims of secondary service connection for allergic rhinitis and chronic maxillary and bilateral ethmoid sinusitis are granted, further discussion here of compliance with the VCAA is not necessary. Factual Background On enlistment examination in June 1976, the Veteran's nose and sinuses were reported as normal on clinical evaluation. The Veteran denied any ear, nose or throat trouble, sinusitis, or hay fever. An undated report that appears to be from 1977 included a diagnosis of upper respiratory infection. In December 1977, he was seen for nasal congestion and prescribed Actifed. He was put on a profile because he was on a medication that could make him sleepy. In August 1978, the Veteran requested a referral to the allergy clinic. The record notes "incomplete allergy tests." He subsequently underwent a physical examination for boxing and it was reported as normal. In October 1978, he was seen with complaints of coughing up green mucus. It was also noted that he coughed up blood after a fight (he was an Air Force boxer) and had shortness of breath. Impression was upper respiratory infection and possible exertion asthma. In November 1978, an allergy consult was requested. It was noted that the Veteran had a two year history of chronic year round nasal congestion or obstruction. There were no eye symptoms, sneezing or nasal itching. He felt his symptoms switch from side to side, but were worse on the right. Antihistamines provided no relief. In December 1978, the Veteran was evaluated for allergies. On physical examination, the septum was deviated to the right and the right nostril was partially obstructed. Sinus x-rays showed no sinusitis. The physician stated that the Veteran had 4 possibly significant reactions (on skin testing), but his nasal EOS was negative, CBC was negative, and his history did not sound allergic. The plan was for an ear, nose, and throat (ENT) consult. The consult request notes that allergy work up was not impressive but that the Veteran had a "messed up" nasal septum. A May 1979 ENT consult request notes that the Veteran had complaints of obstruction and problems breathing secondary to a nasal fracture 12 months prior. The June 1979 ENT consult noted a deviated right septum and leaning nose to the right, with bulbous tip and flared nostril. Surgery was planned. In December 1979, the Veteran underwent a septoplasty for internal and external nasal deformities. In January 1980, the Veteran was seen in the ENT clinic with complaints of periodic right epistaxis with partial obstruction. Objectively, there was crust in the right anterior septum which was cleared. In April 1980, the Veteran was admitted for a second stage septorhinoplasty. In July 1980, another ENT consult was requested. It was noted that the Veteran underwent a second rhinoplasty in April 1980 and needed a post-op evaluation. On physical examination, the septum was slightly deviated to the left with swollen nasal mucosa and clotted blood in the anterior plexus of the right nostril. On separation examination in September 1980, the Veteran's nose and sinuses were reported as normal on clinical evaluation. A history of septorhinoplasty and rhinoplasty, no complications no sequelae, was noted. On the associated report of medical history, the Veteran reported nose trouble, but denied any sinusitis or hay fever. The Veteran underwent a VA examination in connection with an unrelated claim in February 1981. Examination of the nose and sinuses was reported as negative. Private medical record dated in February 1999 notes some problems with obstruction and congestion in the Veteran's nose and he was felt to have a polyp in the right nostril. It was noted that he was sick about once a month requiring antibiotics and frequently had headaches, drainage, and pressure sensation. He had previous nasal surgery and previous nasal trauma on 2 occasions. The nose was red and inflamed and the septum was slightly to the right midline but did not particularly show deformity. The physician suspected a low grade purulent rhinitis on top of allergic rhinitis. In April 1999, the Veteran underwent a revision nasoseptal reconstruction, partial turbinate resection, and bilateral anterior and posterior ethmoidectomy with inferior meatal antrostomies, with no removal of antral mucosa. Pre and post-operative diagnosis was nasal septal deformity and obstruction, bilateral ethmoid sinusitis and maxillary sinusitis, with antral mucosal swelling. Subsequent private medical records dated through approximately 2004 show continued complaints and various diagnoses including sinusitis, allergic rhinitis, rhinosinusitis, and vasomotor rhinitis. A March 2001 private treatment report indicates that the Veteran's allergies and sinus infections had their onset 25 years previously. A July 2004 record notes that the Veteran had sinus surgery in the late 1990's and had 2 surgeries while in the military. He had recently been allergy tested with no significant allergy reactions. Allergy skin testing report showed a 1+ to aspergillus but nothing of significance to require allergy injections or desensitization. Impression was mild allergic rhinitis from skin testing with recurring sinusitis. An August 2004 CT scan showed: (1) very mild polysinusitis; (2) bilateral nasoantral procedures with bilateral ethmoid air cell resection; and (3) S-shaped curvature to nasal septum. In a September 2004 statement, the Veteran reported that he sustained trauma to his nose on several occasions while boxing in the service. A September 2004 statement from Dr. J.H., a private otolaryngologist, indicates that review of the Veteran's records demonstrates a previous history of military evaluation finding that he had severe allergy disease and nasal deformity and obstruction. Incidental history was that he also engaged in boxing, which frequently contributes to nasal obstruction and septal deformities. The Veteran was evaluated again in 1999 and a third nasal surgery was performed. Since that time, the symptoms had improved but periodic flare-ups required antibiotics, decongestants, and an almost continuous use of allergy medication. The examiner stated the following: My impression is that you have an ongoing allergic problem, which has been aggravated by the previous nasal trauma and required surgery. The trauma involved boxing experiences. The allergy disease has been previously documented and treatment varies in regard to his modality but generally is an ongoing condition. Therefore, the nasal deformity and obstruction, previous surgeries, and work exposure aggravates your ongoing allergic rhinitis, which contributes to your constant pulmonary and sinus condition. The Veteran underwent a VA examination in February 2005. The claims folder was reviewed. The Veteran reported continued recurrent sinus infections. On physical examination, the nasal mucosa appeared somewhat hyperemic. The nasal airway was wide open with essentially no nasal obstruction present from nasoseptal deviation. The examiner discussed relevant service records and stated that his review was negative for either chronic sinusitis or allergic or vasomotor rhinitis. A February 2005 CT scan showed mucosal thickening involving both maxillary sinuses more on the right side with evidence of previous surgery. Diagnosis was allergic and vasomotor rhinitis and chronic maxillary sinusitis. The examiner provided the following opinion: Although the [V]eteran was noted to have a septorhinoplasty done while on active duty for acquired nasal deformity, my examination noted that the nasal septum was straight, with little or no evidence of nasal deformity at the present time. There seems to be no question that the [V]eteran is currently being treated for allergic and vasomotor rhinitis, and has also been treated in the recent past for chronic sinusitis, including surgery performed in 1999. However, I am unable to determine that a nexus is present between the acquired nasal deformity sustained while on active duty and problems related to allergic and vasomotor rhinitis and chronic sinusitis at the present time. It would appear that the [V]eteran's chronic sinusitis and chronic rhinitis has occurred subsequent to military service and would have likely occurred regardless of what happened to the [V]eteran while on active duty. Therefore, it is my opinion that it is less likely than not that the [V]eteran's current problems related to chronic sinusitis and chronic rhinitis are caused by postoperative residuals of in-service nasal fracture or any other condition as related to military service. In January 2006, the Veteran underwent a VA psychiatric examination. He reported chronic sinusitis and congestion secondary to a nose injury while he was boxing in the service. Axis III diagnosis included sinus problems secondary to injury in the service. In a June 2010 statement, the Veteran's buddy stated that the Veteran had required medical treatment for sinus infections 2 or 3 times a month throughout the 25 years that they had known each other. In February 2013, an additional medical opinion was obtained from the previous VA examiner. The claims folder was reviewed. The examiner opined that the Veteran's allergic rhinitis and chronic sinusitis were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the examiner stated the following: I reviewed service medical records and additional pertinent documents in the claims [folder], including the Remand. From my review of service medical records, I failed to find evidence of chronic rhinosinusitis incurred on active duty. The [V]eteran has contended that his signs and symptoms of chronic rhinosinusitis noted subsequent to separation from active duty could be related to or secondary to the septorhinoplasty done for his nasal septal deviation. However, it should be noted that chronic rhinosinusitis possibly caused by or secondary to septorhinoplasty done for deviated nasal septum would not be supported my (sic) current medical literature. The etiology of chronic rhinosinusitis would be inflammatory, whereas the etiology of septorhinoplasty done for deviated nasal septum would be anatomic. One would not cause the other or vice versa. In this instance, I am unable to establish a nexus between the [V]eteran's allergic rhinitis and chronic maxillary and bilateral ethmoid sinusitis and military service. Analysis In various statements, the Veteran argues that current allergic rhinitis and sinusitis had their onset during service and/or are secondary to his in-service nasal trauma and surgeries. The Veteran is currently service-connected for nasal fracture, post-operative septorhinoplasty and rhinoplasty, rated as noncompensable. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. With chronic disease shown as such in service 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). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The Board observes that the regulation set forth at 38 C.F.R. § 3.303(b) benefits only chronic disease as listed in 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310. Service connection is possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). In this case, the Veteran applied for service connection prior to the effective date of the amendment. As the Veteran's claim was pending prior to the effective date of the revised 38 C.F.R. § 3.310, the Board will consider the version in effect prior to October 2006, as it is more favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. 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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence of record shows diagnoses of both allergic rhinitis and sinusitis and thus, the Board concedes evidence of current disability. Consideration of this claim includes all theories of entitlement either raised by the Veteran or reasonably raised by the record, to include secondary service connection. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006); see also Robinson v. Peake, 21 Vet. App. 545, 550-51 (2008). The question therefore is whether the disorders are related to active military service or secondary to a service-connected disability. Initially, the Board notes that while the Veteran complained of nasal congestion and underwent an allergy evaluation during service, there is no indication that allergic rhinitis and sinusitis were formally diagnosed. Sinusitis was not shown on in-service x-rays and the Veteran denied both sinusitis and hay fever at separation. The Board further notes that allergic rhinitis and sinusitis are not listed as chronic diseases under 38 C.F.R. § 3.309(a). On review, the record contains various opinions addressing the etiology of the claimed disabilities. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). With regard to the January 2006 VA psychiatric examiner's Axis III diagnosis of "sinus problems secondary to injury in the service," the Board notes this statement appears to be based solely on the history as reported by the Veteran. As such, it is of little probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). Regarding the February 2005 VA examination, the Board previously determined that the report was inadequate because it did not address relevant evidence from service treatment records as well as post-service treatment records. Accordingly, this opinion is also assigned little probative value. In addressing the remaining opinions, the Board notes that there is evidence both for and against the claims. That is, the September 2004 statement from Dr. J.H. supports the Veteran's claims, but the March 2013 VA opinion does not. Both physicians provided adequate rationale and on review, the Board does not find a convincing basis to favor one opinion over the other. Thus, the evidence is at least in relative equipoise as to whether the Veteran's service-connected post-operative nasal fracture aggravated his allergic rhinitis and sinusitis. What is less clear is the degree of disability resulting from such aggravation. To the extent it is not possible to differentiate aggravation caused by the service-connected disability from the nonservice-connected disabilities any doubt should be resolved in the Veteran's favor. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition). In sum, service connection is warranted when the aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, in resolving all doubt in the Veteran's favor, the Board concludes that service connection is warranted for allergic rhinitis and sinusitis secondary to the service-connected nasal fracture, status post septorhinoplasty and rhinoplasty. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. (The Order follows on the next page.) ORDER Service connection for allergic rhinitis secondary to the service-connected nasal fracture, post-operative septorhinoplasty and rhinoplasty, is granted. Service connection for chronic maxillary and bilateral ethmoid sinusitis secondary to the service-connected nasal fracture, post-operative septorhinoplasty and rhinoplasty, is granted. ____________________________________________ M. Mac Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs