Citation Nr: 1752370 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 06-04 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for chronic upper respiratory infections, to include as due to an undiagnosed illness, or as secondary to a service-connected disability, including sinusitis and rhinitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserves with a period of active duty for training from August 1996 to December 1996; then on active duty from February 2003 to October 2003 and from June 2007 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2012, the Board, citing Clemons v. Shinseki, 23 Vet. App. 1 (2009), recharacterized the issue on appeal to entitlement to service connection for an acquired respiratory disability, to include sleep apnea, reactive airway disease, asthma, sinusitis, bronchitis, allergic rhinitis, calcifications in the right middling, granulomatous calcifications in the right hilar region, and chronic upper respiratory infections. In May 2013, the RO bifurcated the consolidated issues of service connection for an acquired respiratory disability and only granted service connection for asthma and allergic rhinitis. Subsequently, in September 2013, the Board granted the service connection claims for reactive airway disease and bronchitis; and denied the service connection claims for granulomatous calcifications in the right middling and right hilar regions. In April 2016, the Board granted service connection for the sleep apnea and sinusitis claims. Thus, since the grant of service connection for these issues are a full grant of the benefits sought, these issues are no longer before the Board on appeal. In March 2010, September 2012, April 2016 and April 2017, the Board remanded the matter to the RO for further evidentiary development. FINDING OF FACT The Veteran's chronic upper respiratory infections comprise her sinusitis, for which she is already service connected. CONCLUSION OF LAW The criteria for service connection for chronic upper respiratory infections are not met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Alternatively, a claim for secondary service connection requires medical evidence that connects the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See id. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran asserts entitlement to service connection for chronic upper respiratory infections on two alternative theories: on the basis of an undiagnosed illness, or alternatively, as secondary to service-connected sinusitis (secondary service connection). In an April 2017 VA opinion, a VA examiner opined that the Veteran's upper airway symptoms, claimed as chronic upper respiratory infections, "clearly and unmistakably fall under the diagnosis of the already [service-connected] sinusitis." As the basis and rationale for her opinion, the VA examiner explained that infections of the upper respiratory system localize to the sinuses and are referred to as "sinus infection" or "sinusitis", which is already service-connected. The VA examiner further explained that infections of the sinus can be either viral or bacterial, but that both would fall under the diagnosis of the service connection for sinusitis. She also explained that allergic rhinitis can also cause upper airway symptoms of congestion, nasal blockage, sinus drainage, and sinus pressure/pain, but that these are not actual infections. Finally, the VA examiner particularly emphasized that the Veteran's upper airway symptoms, claimed as chronic upper respiratory infections, are clearly and unmistakably not an undiagnosed illness or medically unexplained chronic multisymptom illness. The basis and rationale for this opinion was that there are clear diagnoses, including service-connected sinusitis and service-connected rhinitis, which account for and explain the Veteran's symptoms of chronic upper respiratory infections. After a review of all evidence of record, the Board finds that this April 2017 VA opinion is the most probative evidence of record, which is dispositive of the issue. This opinion provides a clear rationale that is based on a review of the medical evidence of record. Furthermore, the Board also finds that this opinion is responsive, and is in substantial compliance with the April 2017 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders); see Dyment v. West, 13 Vet. App. 141, 147 (1999) (holding that a remand is not required under Stegall where there is substantial compliance with remand directives). Although the Board is grateful to the Veteran for her service, the Board finds that there is no basis for granting a separate service connection for chronic upper respiratory infections. ORDER Service connection for chronic upper respiratory infections, to include as due to an undiagnosed illness or as secondary to a service-connected disability, including sinusitis and rhinitis, is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs