Citation Nr: 1751811 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 10-33 064 ) 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: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2016 the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2016 and June 2017, the Board remanded the issue on appeal for additional development. FINDINGS OF FACT The most probative evidence is against finding that the Veteran's current sinus disability had its onset in service, or is otherwise related to service, to include occupational exposures therein. CONCLUSION OF LAW The requirements for establishing service connection for a sinus disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for a sinus disability. His primary assertion during the course of the claim has been that his sinus disability is related to chemical exposures/solvents while working as a mechanic in service. Unfortunately, the preponderance of the evidence is against finding that he is entitled to service connection for a sinus disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a)(2017). Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran has been diagnosed with a sinus disability during the appeal period, as a September 2016 VA examiner assessed both sinusitis and rhinitis. Additionally, though service treatment records are negative for complaints or findings related to sinus disability, the Veteran's service personnel records do show a military occupational specialty related to aircraft mechanics; thus, it is likely that he had some degree of occupational exposures. Nevertheless, the Board finds that service connection is not warranted, as the most probative evidence fails to establish a causal relationship between the Veteran's current sinus disability and service, to include any chemical/solvent exposure therein. In this regard, the Board find the most probative evidence of record to be an August 2017 VA examiner's opinion that there is no objective evidence that any currently diagnosed condition, including chronic sinusitis or allergic rhinitis, was caused by the Veteran's service, to include exposures therein. The examiner noted that the Veteran's service treatment records showed cold symptoms, but were silent for any chronic sinus condition or chronic allergic rhinitis symptoms or diagnoses, and that a July 1967 separation examination revealed a normal sinus examination. The examiner also noted that there was no evidence of any solvent or industrial overexposure outside of safety guidelines, or any recorded event, contributing to or producing sinus symptoms. He explained that while some industrial exposures, such as nickel, chromium, and wood sawdust, are noted to have the potential for remote/long term effects, there is no documented evidence that the Veteran had those exposures in service. What is more, the examiner explained that while solvent exposure can cause sinus symptoms and irritation, current medical literature does not support a cause and effect relationship between exposures of the degree and type for this Veteran and any persisting or subsequently developing chronic sinus problems or allergic rhinitis years after removal from exposure. The Board finds the August 2017 VA examiner's opinion on the question of a causal link probative, as it was based on a review of the claims file and relevant facts, and included a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion is also supported by the findings of a VA examiner who issued a VA opinion in September 2016 that the Veteran's current sinus disability is less likely as not related to service. That examiner acknowledged treatment for viral/upper respiratory symptoms in service, but concluded that the treatment was for acute, transitory conditions. He found no evidence in the Veteran's STRs of chronic sinusitis, allergic rhinitis, or vasomotor rhinitis. The examiner also found that the first evidence of record consistent with the Veteran's current symptoms was noted during VA treatment in 1999, which is over thirty years after the Veteran's 1967 separation from service. Significantly, there is no competent medical opinion of record to the contrary. To the extent that the August 2017 VA examiner also indicated in the examination report that it would be "resort[ing] to mere speculation to opine" whether any current sinus condition was caused by the Veteran's military service, to include solvent exposure therein, the Board finds that further clarification or opinion is not necessary, as the rationale provided by the examiner for the opinion and ultimate conclusion is clear. In this regard, the examiner acknowledged that there is some evidence to support an association between chemical exposures and sinus problems, but unequivocally concluded in this case that "[t]herefore, there is no current objective evidence found on review today" that any current sinus condition "is caused or aggravated to any degree by his military service including his solvent exposures." The Board further notes that there is no bar to a medical professional issuing an inconclusive opinion after obtaining and considering all relevant and available information. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) ("[V]alid application of current medical knowledge could yield multiple possible etiologies with none more likely than not the cause of a veteran's disability, such that a physician could only speculate as to the cause of a claimant's disability or condition."). In short, the Board simply cannot conclude that the Veteran's sinus disability was at least as likely as not caused by service, to include chemical exposures therein, as there is no competent medical opinion of record establishing such a relationship. Although the Board is free to supplement insufficient medical evidence by seeking additional opinions, it is not free to ignore or disregard sufficient medical evidence or to substitute its own judgment on medical matters. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). For the same reason that the Board may not substitute its own judgment on medical matters for that of the competent medical professionals who have reviewed the file, it also cannot rely on the Veteran's lay opinion regarding the etiology of his sinus condition. The Board certainly does not dispute that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of his symptoms, he is not competent to provide a medical opinion regarding the cause of those symptoms. As indicated above, this claim turns on the question of a relationship between the Veteran's sinus disability and his exposures in service - a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran has not been shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) such matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Thus, his lay assertions in that regard have no probative value. To the extent that the Veteran has provided lay testimony regarding an onset of sinus problems in service and continuity of symptoms since, the Board finds those reports to be lacking in credibility, particularly given the normal separation examination in July 1967, as well as the absence of complaints or treatment for sinus or rhinitis symptoms prior to January 1999. See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). In this regard, the record shows that upon establishing VA care in September 1998, the Veteran had no acute complaints and reported that he "overall feels good." Significantly, he did not report any chronic or recurring sinus problems on review of systems, or past treatment for the same. Nor did he report such chronic symptom history in January 1999, when he reported a three day history of cold-like symptoms, or in March 1999, when he reported a one week history of sinus congestion, sore throat, and headache, or in May 2001, when he reported sinus congestion and drainage since Monday. In fact, in receiving treatment for sinusitis in May 2001, the Veteran did report a medical history positive for past or remote treatment related to other conditions, but not for sinusitis or allergic rhinitis. While in June 2001, the Veteran did report a history of chronic allergic rhinitis, he did not report a history dating back to service, and the earlier treatment records discussed do not support a chronic history prior to January 1999. Thus, despite his May 2016 Board testimony regarding an onset of sinus symptoms in service, as well his testimony that he sought treatment for those symptoms "right away" after leaving service, he has not submitted any evidence to support such onset and continuity of symptoms or early treatment for the same, and the Board finds it likely that had the Veteran experienced recurring sinus or rhinitis symptoms since service, he would have reported upon seeking treatment for similar symptoms after establishing VA care. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). As a final matter, the Board recognizes the argument of the Veteran's service representative that the August 2017 VA opinion is inadequate because it was not provided by an ear, nose, and throat (ENT) specialist. The Board respectfully disagrees, and finds that, while the expertise (or lack thereof) of an examiner may affect the weight of the opinion, it does not affect the competence of the opinion. "Medical professionals are presumed competent to do their job." Schertz v. Shinseki, 26 Vet. App. 362, 369 (2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (applying presumption of regularity to medical examiners' competence). Both the Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox, 20 Vet. App. at 569 (citing Hilkert v. West, 12 Vet. App. 145, 151(1999)). The Court held in Cox that "the Board is entitled to assume the competence of a VA examiner." Id. at (citations omitted). Absent evidence or argument which called in to question a VA examiner's professional competence, the Court concluded in Cox that it is not error for the Board to presume that a VA examiner is competent. Id; see also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). In this case, in its prior June 2017 remand, the Board requested a medical opinion from a "qualified examiner" and the August 2017 VA medical opinion was provided by a physician, as acknowledged by the Veteran's representative in an October 2017 brief. The opinion was based on a comprehensive review of the Veteran's medical history, considered the Veteran's contentions and current medical literature, and was supported by a rationale. Thus, the opinion is deemed adequate, and the Board finds that further remand to obtain another opinion from an ENT is not necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); See Stegall v. West, 11 Vet. App. 268 (1998). In other words, the August 2017 VA examiner, as a medical professional, was competent to provide the medical opinion rendered, and the absence of expertise in the ENT field does not otherwise render the opinion inadequate. Moreover, as discussed above, there is no competent medical opinion to the contrary here that would trigger the need for a reconciling opinion from an expert. In summary, the competent and credible evidence of record does not approach a state of equipoise that enables the Board to find that the Veteran's current sinus disability, diagnosed as sinusitis or allergic or vasomotor rhinitis, had its onset during service or is otherwise related to service, to include as a result of occupational exposures therein. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and service connection for a sinus disability must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a sinus disability, to include sinusitis, or allergic or vasomotor rhinitis, is denied. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs