Citation Nr: 1540997 Decision Date: 09/24/15 Archive Date: 10/02/15 DOCKET NO. 10-43 972A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a sinus disability, to include rhinitis and sinusitis. 2. Entitlement to service connection for diverticulosis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD K. Haddock, Counsel INTRODUCTION The Veteran had active service from October 1977 until retirement in July 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the case was subsequently returned to the RO in Atlanta, Georgia. In connection with this appeal, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge at the RO in May 2015. A transcript of that hearing is of record. A review of the record shows that the Veteran has been diagnosed with multiple sinus disabilities during the pendency of the appeal, to include rhinitis and sinusitis. Therefore, the Board has broadened consideration accordingly. Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT 1. A sinus disability, to include rhinitis and sinusitis, is etiologically related to active service. 2. Diverticulosis is etiologically related to active service. CONCLUSIONS OF LAW 1. A sinus disability, to include rhinitis and sinusitis, was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Diverticulosis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Te deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that his currently diagnosed sinus disability, alternatively diagnosed as rhinitis and sinusitis, and diverticulosis had their onset during active service. Specifically, the Veteran has reported that the symptoms of sinus disability and diverticulosis first started while he was in service and that he has continued to experience those symptoms since separation from active service. The Board notes that the Veteran is competent to report when he first experienced symptoms of a sinus disability and bloody stool and that they have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Also, the Board finds the Veteran to be credible. The service medical records show that the Veteran was seen on multiple occasions for complaints of chronic runny nose, watery eyes, upper respiratory infection (URI) symptoms, allergies, and sinus pressure. The Veteran was diagnosed with allergic rhinitis, sinusitis, perennial non-allergic rhinitis, and allergies while in active service. Service medical records also show that the Veteran was seen on numerous occasions during active service for complaints of bloody stool. There was no definitive diagnosis made during service, but he also reported a two year history of bloody stool at the time of a January 1998 retirement examination. A review of the post-service medical evidence of record shows that the Veteran has continued to seek treatment for symptoms of a sinus disability and for bloody stool. Since separation from active service, the Veteran has been diagnosed with sinusitis, rhinitis, and diverticulosis. In May 2009, the Veteran's primary care physician, Dr. R.D., opined that the Veteran's present condition of rhinitis and sinusitis may be related to active service. Dr. R.D. noted that he had reviewed the Veteran's service medical records which showed that the Veteran was treated for the same disability during active service. Dr. R.D. also indicated that the Veteran's diverticulosis was related to active service. Specifically, Dr. R.D. noted that the Veteran had a history of diverticulosis and he occasionally presented with bloody stool. Dr. R.D. further noted that the Veteran had similar experiences while in active service. At a June 2010 VA examination, the Veteran reported that he had a sinus problem that first started in 1986. He reported that the problem first presented as an itchy and runny nose and he thought he had an allergy of some sort. He reported that the exact nature of his allergy could not be determined during service, but that he had continued to experience sinus symptoms since the initial onset in 1986. The examiner diagnosed recurrent rhinitis and sinusitis, probably non-perennial and nonallergic. The examiner did not clearly provide an opinion regarding the etiology of the Veteran's sinus disability. The examiner noted that the Veteran had perennial nonallergic rhinitis of many years duration and that it started while the Veteran was in active service. However, the examiner noted that the rhinitis in service was unique to Hawaii and the present episodes of rhinitis may not have any relation to what occurred in service. The examiner further noted that the Veteran was probably more prone to rhinitis and allergic sinusitis. At the June 2010 VA examination, the Veteran also reported that he had a history of bloody stool since at least 1990. He reported that he was referred to a specialist for the issue before he retired from active service, but that he never got the treatment because he got out of service. He reported that since retirement from active service, he sought treatment for symptoms at the VA Medical Center, at which time he was diagnosed with diverticulosis of the colon. The examiner diagnosed diverticulosis of the colon by history and rectal bleeding off and on, suggestive of hemorrhoids. The examiner did not provide an opinion regarding the etiology of the Veteran's diverticulosis. However, the examiner noted that there was no evidence of diverticulosis while in service. The Board finds that the June 2010 VA opinions are not complete. The examiner did not clearly provide an opinion regarding the etiology of either the sinus disability or diverticulosis. Further, the examiner actually stated that the Veteran's sinus disability had its onset while he was in active service. Additionally, the examiner noted that the Veteran did not have a diagnosis of diverticulosis in service. However, the examiner did not appear to consider the fact that the symptoms upon which the Veteran's diagnosis of diverticulosis was based were the same as those he experienced during active service. Therefore, the opinions are not adequate to serve as the basis for a denial of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify sinus symptoms and bloody stool and as noted, he is competent to report that the symptoms started in service and have continued since that time. In sum, the service medical records clearly document multiple episodes of treatment for sinus complaints and bloody stool while the Veteran was in active service. The VA medical opinions are not competent opinions against the claims as they do not consider all the pertinent facts and do not provide clear conclusions or complete, thorough, and detailed rationales. The Veteran has competently and credibly reported that he has experienced sinus symptoms and bloody stool since his retirement from active service. Further, the Veteran has current diagnoses of sinusitis, rhinitis, and diverticulosis and the Veteran's primary care physician has indicated that those disabilities had their onset while the Veteran was in active service. Therefore, the Board finds that the evidence for and against the claims is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for a sinus disability and diverticulosis is warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a sinus disability, to include rhinitis and sinusitis, is granted. Entitlement to service connection for diverticulosis is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs