Citation Nr: 1509517	
Decision Date: 03/06/15    Archive Date: 03/17/15

DOCKET NO.  13-24 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a sinus condition.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Megan Marzec, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1990 to January 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  Jurisdiction of this case now resides with the VA RO in Phoenix, Arizona.

In July 2014 the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing; a transcript of that hearing is of record.

The Board notes that the Veteran is already service connected for several disabilities and his combined rating is 100 percent.

This appeal was processed using the Veterans Benefit Management System (VBMS) and Virtual VA (VVA) electronic claims processing system. 

The Board notes that the issue of entitlement to service connection for sleep apnea has potentially been (it appears) raised by the record in the July 2014 travel board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action (if needed).  38 C.F.R. § 19.9(b) (2014).

In any event, in light of the fact that the Veteran is at 100%, the Veteran, in consultation with his representative, may wish to withdraw all claims. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).




FINDING OF FACT

Giving him the benefit of the doubt, the Veteran has a sinus condition that is etiologically related to his active duty service.


CONCLUSION OF LAW

The criteria for service connection for a sinus condition are met.  38 U.S.C.A. §§ 1110, 1507 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

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.  38 U.S.C.A.  § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The Veteran served on active duty from September 1990 to January 1997.

A review of the available service treatment records shows that the Veteran had a notation in October 1996 of a history of chronic rhinitis/sinusitis.  

As discussed in the July 2014 transcript the Veteran's service treatment records from his initial service in Panama are not of record.  This includes the entrance examination.  The Veteran testified to having constant problems with his sinuses while serving in Panama.

At the December 1996 ETS examination the Veteran checked "no" in response to whether he had been diagnosed with "sinusitis."  The Veteran's nose was evaluated as normal except for a left deviated septum.

Shortly after separation from active duty service the Veteran filed a claim for entitlement to service connection for several disabilities including left deviated septum.  

In May 1997 the Veteran was afforded a VA examination.  The Veteran reported that he had "sinus problems and headaches."  

A review of the post-service VA and private medical treatment records does not show any further complaints of sinus problems until December 2007.  The Veteran has testified that he has submitted all records, but there is a significant period of time without any treatment records.

Between 2007 and 2009 the Veteran had frequent treatment for a sinus condition including a diagnosis of chronic sinusitis after a CT examination in April 2008.

The Board notes that the Veteran testified to having several surgeries for his sinus condition.  There are no treatment notes regarding such surgeries of record.

Considering the Veteran's competent and credible testimony regarding frequent treatment in service for sinus problems, the notation of chronic sinusitis/rhinitis during service, his report immediately after service of sinus problems, and his frequent current treatment for a sinus condition, the Board grants the Veteran the benefit of the doubt and finds that service connection for a sinus condition is warranted.  Further development of this case is simply not warranted. 

ORDER

Entitlement to service connection for a sinus condition is granted.



____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs