Citation Nr: 1756513 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-28 231A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for sinusitis and breathing problems, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1977 to June 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2011 and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board previously remanded this appeal in July 2015 for further development, which has been completed. FINDING OF FACT 1. The possibility of minimal asbestos exposure in service is conceded based on the Veteran's military occupational specialties. 2. Sinusitis and allergic rhinitis did not have onset in service and are not related to service. 3. A current asbestos-related respiratory disease is not shown. CONCLUSION OF LAW The criteria for service connection for sinusitis and breathing problems, to include as a result of asbestos exposure, have not been met. 38 U.S.C. §§ 1131, 5103 (2014); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he has sinusitis and breathing problems, to include as a result of asbestos exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131 (2014); 38 C.F.R. § 3.303 (2017). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the diseases explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provision of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The list of chronic diseases does not include sinusitis. There is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases. However, the VA Adjudication Procedure Manual, M-21(M21-1) Part IV, Subpart ii, 2.C.2.a. provides guidance for service connection disabilities resulting from exposure to asbestos. Pursuant to MR21-1, Part IV, Subpart ii, C.2.e., high exposure to asbestos and a high prevalence of disease have been noted in insulation and ship yard workers. The exposure may have been direct or indirect; and the extent and duration of exposure is not a factor. These guidelines were updated on November 2, 2016. Veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure may receive compensation benefits. M21-1, Part IV, Subpart ii, 1.l.3.a (August 7, 2015). Claims based on exposure to asbestos require (1) a military occupational skill with exposure to asbestos or other exposure event associated with service sufficient to request an examination with medical opinion as described in M21-1, Part IV, Subpart ii, 1.l.3.f and (2) a diagnosed disability that has been associated with in-service asbestos exposure. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Service personnel records show the Veteran served aboard the USS John Craig as a seaman apprentice and seaman. Service treatment records show the Veteran sought treatment in service for complaints of headache, drainage from the nose, cough, and congestion, which were diagnosed as upper respiratory infections. See from 1977 and August 1977. The April 1980 examination for separation noted no abnormalities, including of the sinuses. An April 1982 enlistment examination for reserve service showed no abnormalities of the sinuses were noted. Beginning in February 1984, the Veteran experienced sinusitis that was seasonal, mild, and required no treatment. See November 1987 service treatment records. The Veteran also sought treatment for throat irritation with a clinical assessment of upper respiratory infection pharyngitis in March 1989. Post-service private treatment records show the Veteran has been treated for numerous complaints including sinus congestion, coughing, sore throats, nasal drainage, and headaches. See private treatment records from February 2003, September 2006, February 2008, March 2008, September 2008, and July 2009. In February 2011, the Veteran underwent a VA examination. The examiner opined that the Veteran's sinus condition was less likely associated with his service-connected disabilities. In July 2015, the Board found the 2011 opinion inadequate for various reasons, and remanded the appeal for further development. In his October 2013 substantive appeal, the Veteran reported that he had sinus problems growing up and it came back while he was on active duty. Pursuant to the Board's July 2015 remand, the Veteran was provided another VA examination in December 2015. The examiner reviewed the claims file and conducted an in-person examination, including pulmonary function tests. At the examination, the Veteran reported onset of sinusitis in service in 1977, with symptoms resolving and flaring back up in 1985. The Veteran reported symptoms which included nasal stuffiness and headaches in the spring and winter. He denied any specific treatment or diagnosis of a respiratory condition. Current imaging which showed mucoperiosteal thickening in the sinuses consistent with acute or chronic sinusitis. The examiner gave a diagnosis of chronic sinusitis and allergic rhinitis. No other respiratory conditions were present. The examiner opined that the chronic sinusitis and allergic rhinitis was less likely than not incurred in or caused by service or an in-service event. The examiner noted that she had considered the February 2011 imaging which was negative; the November 2015 imaging; the Veteran report of sinusitis in 1977, 1984, and 1986; as well as the diagnosed pharyngitis in November 1989 and upper respiratory infection in March 1989. The examiner further explained that the Veteran was not diagnosed with sinusitis in service, although he did have upper respiratory infections and pharyngitis. The examiner further explained that recurrent sinusitis is typically due to inadequate or inappropriate treatment; it does not typically evolve into chronic sinusitis with treatment. The examiner also explained that as the February 2011 imaging was negative, the recent positive imaging of sinusitis indicated a new finding or recent onset. Thus, it was unlikely that Veteran's current diagnosis of sinusitis was caused by or due to military service, including the 1989 diagnoses of pharyngitis or upper respiratory infections. Moreover, evidence-based literature does not support pharyngitis or upper respiratory infection as the gold standard for establishing the presence of sinusitis or, support a causal link between sinusitis and asbestos exposure. The examiner went on to explain that this new onset of chronic sinusitis may likely be the result of reported allergic rhinitis, but allergic rhinitis is unlikely caused by or due to military service as such is not supported by evidence-based literature. Rather, allergic rhinitis is caused by allergens; pharyngitis and upper respiratory infection are caused by bacterial or viral agents. Based on the evidence of record, the Board finds service connection is not warranted. At the outset, the Board has previously determined that the presumption of soundness applies in this case. See July 2015 Board remand. Sinusitis was not diagnosed in service; a respiratory condition known to be associated with asbestos exposure was also noted diagnosed therein. However, VA has conceded that the Veteran may have had minimal exposure to asbestos based on his military occupational specialty. The in-service element is met. The current diagnosis element is also met as competent medical evidence shows diagnoses of sinusitis and allergic rhinitis. The competent medical evidence does not show that the Veteran has been diagnosed with other respiratory disorders, including respiratory condition known to be associated with asbestos exposure. Notwithstanding the current diagnoses and in-service events, the competent evidence does not link the in-service complaints and diagnoses, to the current diagnoses. The December 2015 VA examiner opined that current sinusitis and allergic rhinitis are less likely than not related to service, to include as a result of asbestos exposure. The December 2015 examiner's opinion is highly probative because she has the appropriate training, expertise and knowledge to evaluate these and respiratory disabilities. The examiner also provided a thorough and cogent rationale for her findings and opinions, which included consideration of the Veteran's reported symptoms and his clinical history as well as a review of the entire claims file. There are no competent opinions to the contrary. The Board acknowledges the Veteran's contentions and sincere belief that his sinusitis and breathing problems are related to service, and that he has a respiratory disorder related to service and asbestos exposure. However, as a lay person he is not competent to determine the etiology of sinusitis and rhinitis, or to diagnose respiratory disorders, asbestosis, or other asbestos-related diseases, as these are all complex medical questions involving internal disease processes and clinical testing. He has not otherwise demonstrated possession of the requisite medical knowledge, training, or experience needed to do so. Therefore, his lay opinions linking his current sinusitis to the in-service respiratory complaints and diagnoses (and also diagnosing any asbestosis-related disease) is neither competent nor probative evidence. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for sinusitis and breathing problems, to include as a result of asbestos exposure, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs