Citation Nr: 1322828 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-01 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's January 2007 VA Form 9 included a request for a hearing. However, in June 2007 the Veteran withdrew that hearing request. Therefore, Board adjudication of the current appeal may go forward without a hearing. See 38 C.F.R. §§ 20.703, 20.704 (2012). The case was brought before the Board in December 2009 and July 2011, when it was remanded for development. The case was before the Board most recently in September 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include obtaining treatment records and affording the Veteran a new VA examination. The Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran was afforded a VA examination in February 2013 for his sinusitis claim. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board notes that in a March 2013 rating decision the Veteran was granted service connection for allergic rhinitis. The Veteran has not disagreed with the assigned disability ratings or the effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.) Therefore, this matter is considered resolved and is not in appellate status. In an April 2013 statement, the Veteran's representative again raised the issue of entitlement to service connection for tinnitus. This claim was previously denied in a November 2007 rating decision. The determination of whether sufficient evidence has been received to reopen the claim of tinnitus is therefore REFERRED to the RO for proper adjudication. FINDING OF FACT The Veteran has sinusitis that is related to service. CONCLUSION OF LAW The criteria for the award of service connection for sinusitis have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the favorable disposition of the claim for service connection for sinusitis, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that his sinusitis began in service and has continued on thereafter. For the reasons discussed below, the Board finds that service connection is warranted. During service, the Veteran was seen on multiple occasions in service with sinus complaints. In a June 1966 treatment record, the Veteran had marked sinus tenderness and x-rays confirmed a diagnosis of sinusitis. In July 1966, the Veteran had sinus blockage as secondary to scuba diving. X-rays showed left frontal and left maxillary sinusitis. In October 1966, the Veteran had recurrent headaches and stated he had been told he previously ruptured his sinuses. X-rays showed clouding frontal sinuses. On the Veteran's February 1968 separation examination, there was no evidence of sinusitis. Following separation from service, the Veteran has been diagnosed with sinusitis on several occasions. In February 1995, he was noted to have chronic sinusitis. In November 1997, the Veteran's sinus x-rays were normal. In June 1998, the Veteran had sinusitis which had resolved. In October 1998, the Veteran was diagnosed with chronic sinusitis. The Veteran had sinusitis in February 2003 which had resolved in March 2003. More recently, in a September 2005 VA treatment record the Veteran reported sinus pressure and pain between his eyes. The examiner noted mild tenderness over the frontal sinuses. The assessment was sinusitis. The Veteran submitted his claim for service connection for sinusitis just one month later in October 2005. The Veteran was afforded a VA examination in June 2010. The examiner noted that the Veteran had a history of sinusitis. She noted that the Veteran's sinusitis symptoms consisted of purulent nasal discharge, headaches, sinus pain, sinus tenderness, and fever. She noted that the Veteran's rhinitis symptoms consisted of nasal congestion, excess nasal mucous, itchy nose, watery eyes, and sneezing. She noted that the Veteran had current mild edema of the turbinates. The examiner diagnosed the Veteran with allergic rhinitis and stated that there was no clinical evidence of acute sinusitis at the time of the examination. At a July 2011 VA examination, the examiner noted the Veteran had been diagnosed with sinusitis in service and after separating from service. His current symptoms were infections 2-3 times a year and general nasal blockage. On examination, no evidence of sinusitis was found. The examiner stated there was no objective data to support a more definitive diagnosis. The examiner opined that the Veteran had a definitive diagnosis of sinusitis in service, but there was no evidence of this condition for many years after separation from service. He also noted normal sinus x-rays in 1997. He further indicated that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. The July 2011 VA examination was found to be inadequate by the Board, as the VA examiner did not indicate what further testing or objective data would be required to render "a more definitive diagnosis." Additionally, while the VA examiner performed an examination on the Veteran, the report reveals that he did not conduct any radiologic or other testing to confirm or support physical findings. Instead, the examiner relied heavily on a November 1997 sinus X-ray which revealed a normal paranasal sinus series. Relying on these 14 year old X-rays appeared to be even less reliable given the fact that the examiner indicated earlier in the examination report that the Veteran had a prior history of sinusitis, and that the prior diagnosis had been made by X-ray only, and not as a result of clinical findings. In addition, the VA examiner indicated that there was no clinical evidence to support a sinusitis diagnosis; however, as noted above the Veteran had been diagnosed with sinusitis in September 2005, during a VA primary care consultation just one month prior to the date he filed his petition to reopen his service connection claim. The examiner did not acknowledge this diagnosis, however, when indicating that the Veteran did not currently have sinusitis and implying that he had not had sinusitis since the time of his November 1997 X-rays. In view of the foregoing, the Board again remanded the claim in September 2012. The Veteran was afforded another VA examination in February 2013. The examiner reviewed the Veteran's history in detail and noted, in part, that the Veteran had previously been diagnosed with sinusitis in service and more recently in September 2005. On page 72 of the examination report, the examiner checked boxes indicating that the Veteran had both sinusitis and rhinitis. X-rays of the Veteran's sinuses were conducted and were described as normal. The examiner stated that more sensitive radiologic methods for establishing a present diagnosis of sinusitis, such as by CT scan, were beyond the scope of a VA examination. The examiner provided an opinion relating the Veteran's allergic rhinitis to service. He also stated that an alternate explanation would be the Veteran having suffered from atrophic rhinitis from the time of military service to present complicated by chronic recurring sinusitis objectively documented at least during military service. As noted above, the Veteran was diagnosed with sinusitis in September 2005, just one month before the Veteran filed his claim of service connection in October 2005. See Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). Although not shown on x-rays at the time of the February 2013 VA examination, the examiner did check the box within the body of the examination report indicating that the Veteran had sinusitis. The examiner also stated that more sensitive radiologic methods for establishing a present diagnosis of sinusitis, such as by CT scan, were beyond the scope of a VA examination. He also stated that an alternate explanation would be the Veteran having suffered from atrophic rhinitis from the time of military service to present complicated by chronic recurring sinusitis objectively documented at least during military service. When viewed as a whole, the examiner's statements indicate that the Veteran does in fact have chronic sinusitis which has been recurring since active service. In consideration of all the above, the Board finds that the evidence is in relative equipoise and given the benefit of the doubt rule, the Veteran's claim for service connection for sinusitis must be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for sinusitis is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs