Citation Nr: 1805970 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 09-23 480A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a sinus disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served in the U.S. Navy on active duty from August 1987 to August 2007, with service in Southwest Asia during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2017, the Board remanded the appeal for further development. The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDING OF FACT A sinus disability did not manifest in service and is not shown to be attributable to service. CONCLUSION OF LAW A sinus disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 1137, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Board notes that a portion of the Veteran's service treatment records (STRs) are missing. When service records are missing through no fault of the claimant, VA has a heightened obligation to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing his claim, and to explain its decision. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Here multiple attempts have been made to obtain the missing STRs from 1987 to 1996, with no success, and the Veteran has been notified of these attempts and the unavailability of these records. Specifically, correspondence was sent to the Veteran in March 2016 notifying him that service treatment records from 1987 to 1996 could not be located and are unavailable for review. See March 8, 2016 VA correspondence. As such, the Board concludes that all procedures to obtain any missing STRs were correctly followed, and further attempts to obtain such records would be futile. See 38 C.F.R. § 3.159(c) (2), (3). The Board notes that neither the Veteran nor his representative identified any other shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Compliance with Prior Remand Previously the case was before the Board in May 2017. The claim was remanded for additional development. VA treatment records from November 2016 have been associated with the claims file. The Veteran as afforded a VA examination in August 2017. A supplemental statement of the case (SSOC) was issued in November 2017. As such the Board finds there has been substantial compliance with the prior remand. III. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran 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 or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 CFR 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service-connected. 38 C.F.R. § 3.310 (b). In addition, the Veteran served in the Southwest Asia theater of operations in support of the Persian Gulf War. 38 C.F.R. § 3.317 (e). Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). Compensation shall not be paid under this section, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). The Board notes that the Veteran is not asserting that his claimed disability resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (b) (West 2012) are not applicable. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Analysis The Veteran served in the U.S. Navy as a communications equipment technician with service in Southwest Asia. He contends that he is entitled to service connection for a sinus disability, to include as a result of exposure to environmental toxins. The Veteran has reported ongoing pain and sensitivity in his sinuses and face. The Veteran reported after exposure to the burning oil wells during the Gulf War he experienced a runny nose, sore throat and occasional pain. The Veteran is competent to describe his ongoing symptoms in-service and since and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has a diagnosis of GERD with persistent laryngotracheal reflux. See August 2017 VA examination. The Veteran's available service treatment records (STRs) have been associated with the claims file. In October 1994 the Veteran underwent jaw surgery for mandibular osteotomies and rigid fixation. See October 20, 1994 STR. The Veteran had vertical maxillary excess mandibular retrognathia and microgenia with a tooth length discrepancy. In an April 1999 report of medical history the Veteran denied sinusitis. See April 12, 1999 report of medical history. A June 2001 treatment record noted allergic rhinitis and an upper respiratory infection for which the Veteran was prescribed Zyrtec, Sudafed and Robitussin. See June 13, 2001 STR. In a March 2006 report of medical history the Veteran denied sinusitis. See March 7, 2006 report of medical history. At separation on the report of medical history the Veteran denied sinusitis. See March 14, 2007 report of medical history. The Veteran was afforded a VA examination in April 2008. The Veteran reported a history of maxillary sinus pain, and treatment for sinusitis once, with symptoms one or two times a month in the right maxillary sinus area. The Veteran denied seasonal allergies. See April 2008 VA examination. Examination of the sinuses noted no flaring of the nares, a 10 percent loss of patency bilaterally, and swollen turbinates. No obvious polyp was noted, and there was no frontal or maxillary sinus tenderness with palpation or percussion. The examiner noted a sinus condition, with post-surgical changes. X-ray imagining was negative for sinusitis, and noted surgical sutures over both maxillary sinuses with multiple surgical screws along the medial wall of both maxillary sinuses. No acute findings were reported. The Board finds this examination is entitled to less probative weight, as the examiner failed to address the etiology of the Veteran's symptoms and direct service connection. Then, the Veteran was afforded a VA Gulf War examination in May 2015. The examiner noted that the Veteran did not currently have a sinus disability. See May 2015 VA examination. However, the examiner noted that sinusitis is a known illness with a clear etiology. The examiner found that it was less likely than not that the Veteran's reported sinus symptoms were due to toxins, including environmental hazards or exposure to events incurred while serving in Southwest Asia. The Board finds this examination is entitled to probative weight as to the Veteran's exposure to environmental toxins in Southwest Asia. Next, as a result of the May 2017 remand directives the Veteran was afforded another VA examination in August 2017. The examiner noted the Veteran's service in Southwest Asia and exposure to smoke from burning oil well fires and his subsequent cough and nasal congestion. See August 2017 VA examination. Additionally, the Veteran reported weekly post-nasal drip since his October 1994 jaw surgery. Imaging noted hardware in the maxillary sinuses, maxilla and mandible, and no evidence of sinus inflammation. No lesions of the orbits, skull base or paranasal sinuses was noted. No air-fluid level within the maxillary, frontal and sphenoid sinuses was noted. Imaging noted no significant interval changes from 2008, with extensive post surgical changes involving the maxilla and mandible with the paranasal sinuses normally pneumatized. The Veteran had orthognathic surgery in 1994 for mandibular advancement with genioplasty and maxillary surgery. The examiner noted a nasal endoscopy in January 2013 which noted persistent laryngotracheal reflux. The examiner attributed the Veteran's current symptoms to GERD, not a primary sinus issue. The examiner found that the Veteran does not have a primary sinus diagnosis. His GERD is causing persistent laryngotracheal reflux which is causing his subjective complaints and symptoms. The examiner found that it was less likely than not that the Veteran's GERD with laryngotracheal reflux had its onset in-service and is related to any in-service disease, injury or event, to include exposure to oil well fires in Southwest Asia. The examiner noted no medical association with exposure to chemicals in Southwest Asia and later development of GERD with laryngotracheal reflux. The examiner noted that GERD with laryngotracheal reflux is not an undiagnosed illness or a medically unexplained chronic multisystem illness. As such the examiner found that it was less likely than not that the Veteran's GERD with laryngotracheal reflux was incurred in or caused by the claimed in-service injury, event or illness. The Board finds the August 2017 VA opinion is entitled to significant probative weight, as the examiner's opinion was based on a through medical examination, review of the medical literature and the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA treatment records have been associated with the claims file. Treatment records in October 2010 note facial pain and lower left eye lid pain. See October 10, 2010 VA treatment record. November 2010 treatment records note upper jaw maxillary sinus pain, which was painful to palpate, and a dull grade pain on each cheek. See November 19, 2010 VA treatment record. November 2011 treatment records note the Veteran reported ongoing pain and discomfort on the left side of his face from his ear to nose. See November 3, 2011 VA treatment record. December 2013 treatment records note post nasal drip, congestion, seasonal allergies and pain in the Veteran's face and head at times. See December 2, 2013 VA treatment record. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that entitlement to service connection for a sinus disability is warranted. The Board notes the Veteran is competent to report his observations and symptoms and his statements are credible. However, the Veteran's statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here the Veteran's statement as to whether he has a sinus disability which is related to service is outweighed by the other evidence of record. The Board finds that the medical evidence is more probative and more credible than the lay statements of record. Specifically the Board finds the August 2017 VA opinion to be more probative and credible than the lay statements of record. The August 2017 VA examiner noted the Veteran's in-service exposure and reported symptoms however attributed the Veteran's current symptoms to GERD which is causing persistent laryngotracheal reflux. The examiner found that it was less likely than not that the Veteran's GERD with laryngotracheal reflux had its onset in-service and is related to any in-service disease, injury or event, to include exposure to oil well fires in Southwest Asia. The examiner noted no medical association with exposure to chemicals in Southwest Asia and later development of GERD with laryngotracheal reflux. The examiner noted that GERD with laryngotracheal reflux is not an undiagnosed illness or a medically unexplained chronic multisystem illness. Further, the Board notes at separation from service, and at various times prior to separation the Veteran denied experiencing sinusitis on his reports of medical history. This normal finding is inconsistent with ongoing manifestations of pathology. As such, the Board finds the August 2017 VA opinion is of high probative value as to direct service connection and the Veteran's statements are outweighed, as this credible probative opinion is entitled to significant weight and weighs against the claim. As such service connection is not warranted. VA treatment records associated with the claims file do not contradict the VA examinations and opinions and are absent indications of a relationship between the Veteran's reported symptoms and service. While the Veteran has reported his current symptoms are a result of exposure to environmental toxins in Southwest Asia the Board finds these are outweighed by the more credible and probative medical evidence of record. As such service connection is not warranted. In addition, although the Veteran served during the Persian Gulf War, he cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of an undiagnosed illness or chronic disability. As noted the Veteran has GERD with laryngotracheal reflux. The August 2017 VA examiner noted that GERD with laryngotracheal reflux is not an undiagnosed illness or a medically unexplained chronic multisystem illness and not attributed to the Veteran's exposure to environmental hazards during the Gulf War. The Board notes that the Veteran's representative in April 2017 correspondence asserted that the Veteran was potentially entitled to service connection on a secondary basis but did not indicate the identity of the primary service-connected disability. However, VA benefits may not be granted based on speculative assertions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran's representative is not competent to provide a medical opinion, which it has attempted to do in its argument. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102 (2017). That evidence must be both competent and credible. Here, there is no such balance of evidence. The August 2017 VA examiner attributed the Veteran's symptoms to GERD with laryngotracheal reflux and he is not currently service-connected for GERD, and as such secondary service connection is not warranted. Although the Veteran has established a current disability the preponderance of the evidence weights against finding that the Veteran's current disability is related to his active service and as such service connection is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 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); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for a sinus disability is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs