Citation Nr: 1752410 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-17 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a sinus condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at the RO via videoconference before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. in October 2016. This case was remanded in January 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The competent medical evidence does not demonstrate that the current sinus condition is attributable to the Veteran's active service or any incident of service. CONCLUSION OF LAW The criteria for service connection for a skin condition have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Factual Background and Analysis The Veteran contends that he developed a sinus condition in service while in Vietnam, and that he has continued to experience worsening symptoms of such a condition ever since. Upon review of the claims file, the Board finds that there is insufficient evidence to support a determination that the Veteran is entitled to service connection for his sinus condition. To begin, the Veteran's service treatment records show that he complained intermittently of having a sinus infection in service with symptoms of sore throat and cough, but was never diagnosed with a chronic sinus condition. He was evaluated as having no issues with his sinuses, mouth or throat on the November 1965 VA examination; that being said, he did report having ear, nose, or throat trouble on the corresponding November 1965 report of medical history. Post-service, private treatment records beginning February 1991 show that the Veteran was seeking treatment for a chronic sinus condition evaluated as bronchitis at least as early as that period of time. By March 1993 the condition had been identified as sinusitis. Subsequent treatment records both private and through VA show that the Veteran continued to seek treatment for a sinus condition characterized variously as chronic sinusitis and allergic rhinitis. None of these treatment records show that any provider ever related the Veteran's sinus condition to his service. The Veteran was afforded a VA examination in April 2013 to evaluate the nature and etiology of the sinus condition. After a physical examination, to include a CT scan and an X-ray examination of the sinuses, and a review of the claims file, the examiner declined to endorse a diagnosis of a sinus condition. The examiner accordingly declined to offer an opinion as to etiology. During the October 2016 hearing, the Veteran asserted that he had been exposed to chemicals at some point in his service prior to being sent to the Republic of Vietnam, and that his sinus condition began shortly thereafter. According to the Veteran he sought treatment several times during service for difficulty with his sinuses, and was prescribed medication and nasal sprays to alleviate the symptoms. He did not state when he began seeking treatment for his sinus issues following his discharge. He also attested to having surgery to help alleviate the symptoms of his sinus condition. When asked, he acknowledged that no treatment providers had ever associated his sinus condition to service. The Veteran was afforded a new VA examination to evaluate the nature and etiology of his sinus condition in June 2017. After a physical examination and a review of the claims file, the examiner affirmed a diagnosis of allergic rhinitis, beginning in 2004. The examiner noted a history of sinus infections mainly in the spring and fall, and also detailed that the Veteran had bilateral inferior turbinate reduction surgery in 2006. The examiner then opined that it was less likely than not that the sinus condition was attributable to service. In support thereof, the examiner highlighted the fact that the Veteran was never treated for a chronic sinus condition, and only sought treatment for intermittent symptoms of an upper respiratory tract infection at times during service. The preponderance of the evidence is against a determination that the Veteran developed a chronic sinus condition while in service. As stated, the Veteran was never diagnosed with any such condition at that time, and his sinuses were evaluated as normal on his discharge examination. Although he is credible and competent to report on his history of nasal symptoms, the fact remains that he has not shown that he has the requisite expertise and training to conclude that any symptoms he manifested while in service were the result of a sinus condition that he has continued to experience to this day. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). That type of medical determination is made through the use of clinical evaluations by a medical professional with the specialized education, training, or experience to offer an opinion regarding the etiology of a disease. The Veteran's assertion must be considered in light of the June 2017 VA examiner's opinion, who found it less likely than not that the intermittent reports of treatment for an upper respiratory tract infection indicated that the Veteran had a chronic sinus condition while in service. A VA medical examiner's opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings; the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the June 2017 VA examiner based their opinion on a thorough review of the record which took into consideration the Veteran's medical history and the temporal proximity of the onset of the Veteran's currently diagnosed sinus condition and his discharge from the military. The Veteran has never submitted a statement from a medical professional in support of his contentions, and the claims file is absent any documentation of the Veteran being treated for symptoms of a chronic sinus condition until February 1991, nearly 25 years after service. Accordingly, the Board finds that the June 2017 VA examiner's opinion is far more probative than the Veteran's general contention that he developed a chronic sinus condition in service. In the absence of any other supporting evidence, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran's sinus condition developed in service, and that therefore service connection on a direct basis pursuant to 38 C.F.R. § 3.303(a) must be denied. The Veteran may still be entitled to service connection if all of the evidence establishes that the sinus condition is otherwise attributable to service. 38 C.F.R. § 3.303(d). Here, however, the record lacks sufficient evidence of incurrence in service, and there is nearly a 25 year gap between discharge and when the record shows that the Veteran began seeking treatment in 1991. When the VA examiner's opinion, taken together with the lack of any objective evidence showing that symptoms of the sinus disorder manifested before February 1991, is considered against the Veteran's assertions, it is clear that the preponderance of the evidence weighs against a finding that the Veteran's current sinus condition is otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a sinus condition under 38 C.F.R. § 3.303(d) is not warranted, and as such the Veteran's claim of service connection for a sinus condition in total must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a sinus condition is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs