Citation Nr: 1754419	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-00 062	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an upper respiratory disability, to include sinusitis and rhinitis.

2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disability.

3. Entitlement to service connection for an upper respiratory disability, to include sinusitis and rhinitis.

4. Entitlement to service connection for a cervical spine disability. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Casey, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from September 1975 to September 1979.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Board has expanded the issue of sinusitis to an upper respiratory disability, to include both sinusitis and rhinitis.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).


FINDINGS OF FACT

1. The August 2010 rating decision, which denied service connection for an upper respiratory disability, is final. Evidence received since the unappealed August 2010 rating decision relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for an upper respiratory disability.

2. The August 2010 rating decision, which denied service connection for a cervical spine disability, is final. Evidence received since the unappealed August 2010 rating decision relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for a cervical spine disability.

3. An upper respiratory disability, to include sinusitis and rhinitis, was incurred in active service and relates to service.

4. A cervical spine disability was incurred in active service and relates to service.


CONCLUSIONS OF LAW

1. The August 2010 rating decision denying service connection for an upper respiratory disability is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 20.1103 (2017).

2. The August 2010 rating decision denying service connection for a cervical spine disability is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 20.1103 (2017).

3. Evidence received since the August 2010 rating decision is new and material and the claim of entitlement to service connection for an upper respiratory disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a)(2017).

4. Evidence received since the August 2010 rating decision is new and material and the claim of entitlement to service connection for a cervical spine disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a)(2017).

5. The criteria for entitlement to service connection for an upper respiratory disability, to include sinusitis and rhinitis, are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

6. The criteria for entitlement to service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Reopening of Prior Claims

A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In an August 2010 rating decision, the Veteran was denied service connection for sinusitis and a cervical spine disability.  This decision was not appealed and became final.  However, private medical opinions received subsequent to the 2010 rating decision are adequate to constitute new and material evidence which directly relates to unestablished facts necessary to substantiate the Veteran's claims of service connection for an upper respiratory disability and a cervical spine disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a).

Entitlement to Service Connection

Legal Criteria

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may also be established on a presumptive basis for the chronic diseases listed in 38 C.F.R. § 3.309(a).  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R § 3.303(b) 

Service connection may also be established for disability which is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995).

Upper Respiratory Disability

The Veteran seeks service connection for sinusitis, which he contends is related to exposure to diesel fuel, jet exhaust, and other chemicals while on active duty in the Air Force.  

At an August 2010 VA examination, the examiner concluded that there were no objective findings to support a diagnosis of sinusitis. The examiner further concluded that there was no medical documentation to support a current diagnosis of chronic sinusitis that is causally related to in-service complaints of breathing problems. As there was no diagnosis for sinusitis, the VA examiner ultimately provided a negative nexus opinion for the condition. The VA examiner did not give an opinion as to whether the Veteran suffers from rhinitis or any other upper respiratory disorder.

In November 2013, private physician Dr. Q.T. indicated he has treated the Veteran for an upper respiratory disability, which he described as sinus infections and nasal obstruction.  Dr. Q.T. reviewed all medical records during the time the Veteran was in the armed forces, dating back to the late 1970s. Based on this history, Dr. Q.T. opined that there is a strong possibility that the Veteran's sinus issues were induced from the time he was in the armed forces due to chemical exposure.  

The Board finds that Dr. Q.T.'s opinion is more consistent with the record as a whole, which shows a history of treatment for symptoms of an upper respiratory disability.  Service Treatment Records (STRs) show that the Veteran was treated for reports of occasional difficulty breathing through his nose and he was diagnosed with rhinitis.  Post service, the Veteran has been treated for and diagnosed with sinusitis.  The Veteran underwent nasal surgery in 1993, and revision of bilateral functional endoscopic sinus surgery in January 2002. The Veteran has also been consistent in his reports of symptoms, including sinus congestion with headaches. 

Although the August 2010 VA examiner stated there were no findings to support a diagnosis of chronic sinusitis, the Veteran has been diagnosed with both chronic sinusitis and rhinitis during the appeal period. Therefore, there is evidence to support the presence of a current disability.  STRs show that the Veteran suffered from nasal congestion and pain symptoms while in service, which supports his statements and testimony that he experienced sinus problems during service. Thus, the element of an in-service injury or disease is met.

The evidence of record is at least in equipoise concerning whether the Veteran's upper respiratory disability was incurred during active service. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant service connection for an upper respiratory disability, to include sinusitis and rhinitis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Cervical Spine Disability

The Veteran seeks entitlement to service connection for a cervical spine disability.  The Veteran contends this disability is due to injuries suffered in the spring of 1976 as a firefighter in the Air Force.

STRs show that the Veteran was treated for neck and cervical pain in service. In June 1976, the Veteran reported that he was unable to turn his neck in either direction. In February 1978, while still in service, diagnostic imaging of the cervical spine revealed loss of normal cervical lordosis at C4-5. The radiologist concluded this abnormality may be due to spasm or previous injury.

At a January 1982 VA examination, the Veteran was diagnosed with chronic cervical strain.  The examiner did not provide any opinion regarding the cause of this condition.

At an August 2010 VA examination, based on a review of the evidence of record and a physical examination, the examiner opined that Veteran's current cervical spine condition is not the same as or a result of the treatment in service for cervical strain.  The examiner reasoned that the cervical strain shown during service was resolved with no polyneuropathy or functional limitation.

In November 2010, the Veteran was treated by private physician Dr. A.M. for daily stiffness in his neck and neck pain that occasionally changes the quality of his life. Dr. A.M. diagnosed the Veteran with disk degeneration at C6-C7, neck pain, and radicular symptoms. Dr. A.M. concluded that: "Typically, when we see degeneration of a disk at a single level, with relatively healthy other levels, it is usually related to trauma." In November 2013, Dr. A.M. made a similar conclusion, finding that the Veteran's "single level of degeneration ... could definitely be linked to the mechanism of injury that he had during his service."

Here, both the private and VA medical opinions are competent and credible, and the Board will not assign greater probative weight to either. The August 2010 VA examination opinion found that the cervical spine disorder was a new condition incurred after service, but did not point to a specific etiology.  The November 2010 and 2013 private medical opinions from Dr. A.M. did not specifically opine that the cervical spine disorder was related to the in-service injury, but did provide evidence of a nexus between the injury and the Veteran's current spinal condition. 

In light of above, the Board concludes that the evidence of record is at least in equipoise concerning whether his cervical spine disorder was incurred during active service. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant service connection for a cervical spine disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for an upper respiratory disability is reopened.

New and material evidence having been submitted, the claim of entitlement to service connection for a cervical spine disability is reopened.

Service connection for an upper respiratory disability, to include sinusitis and rhinitis, is granted.

Service connection for a cervical spine disability is granted.




____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs