Citation Nr: 1829903 Decision Date: 10/10/18 Archive Date: 10/19/18 DOCKET NO. 15-35 103 ) 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 previously denied claim of entitlement to service connection for sinusitis. 2. Entitlement to service connection for sinusitis with headaches. 3. Entitlement to service connection for a headache disorder other than headaches associated with sinusitis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from July 1951 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (hereinafter, Agency of Original Jurisdiction (AOJ)). Accordingly, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. The Board notes that the Veteran requested a travel board hearing on his September 2015 VA Form 9, substantive appeal. Subsequently, the March 2017 report of general information reflected that the Veteran wished to withdraw his request for a Board hearing. As this is reduced to writing, and there are no other hearing requests of record; the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704 (2017). Regarding the Veteran's claim for entitlement to service connection for diabetes mellitus, type II, an appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. The claims file reflects a May 2016 correspondence where he withdrew the aforementioned claim as the Veteran recently found out he does not have the disease. The appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Subsequent to the April 2014 final decision denying service connection for sinusitis, additional evidence was added to the record which the Board finds to be new and material. 2. The Veteran's sinusitis with headaches is caused or otherwise etiologically related to active military service. 3. The record reflects that the Veteran's headaches manifested in correlation with his reported instances of sinusitis throughout service and post-service, but no other headache disorder is identified. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for entitlement to service connection for sinusitis have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.159 (2017). 2. Affording the Veteran the benefit of the doubt, entitlement to service connection for sinusitis with headaches is warranted. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. Entitlement to service connection for a headache disorder other than headaches associated with sinusitis, is not warranted. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). New and Material Evidence The Veteran contends that his sinusitis is due to active military service. At the outset, the Board notes that the claim was original denied in the April 2014 rating decision. The Veteran did not appeal the rating decision, and the decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). The claim was denied on the basis that the Veteran's disability had not manifested in-service, or within the presumptive period. Subsequent to that final decision, additional medical evidence was added to the record specifically addressing the etiology of the Veteran's condition. As this evidence is clearly new and material to the basis for the prior final denial, the claim may now be reopened on that basis and reviewed on the merits. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Service Connection The Veteran seeks entitlement to service connection for sinusitis and headaches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For some "chronic diseases," (including migraine headaches) presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). I. Sinusitis with headaches By way of background, at entry of service the Veteran denied sinusitis on his July 1951 report of medical history. Pertinently, service treatment records dated June 1963 note chronic sinusitis, records dated August 1964, and December 1967 show complaints of headaches associated with sinus trouble. Additionally, the Veteran reported sinusitis on his September 1967 report of medical history. Onto the Veteran's sinusitis claim, the claims file includes the October 2014 VA examination which noted that the Veteran had never been diagnosed with a sinus condition, while also noting that the Veteran reported symptoms of puffiness under the eyes, headaches, sinus congestion and discharge, all year long. The examiner conveyed that the Veteran had previously used prescription nose sprays which caused unwanted side effects, and thus the Veteran ceased all prescription and over-the-counter medication for his condition. The examiner determined that the evidence was insufficient to warrant or confirm a diagnosis of chronic sinusitis or residuals. On examination in April 2015, the examiner noted the Veteran's complaints of sinusitis in service, which the examiner explained is part and parcel with the headaches. Despite this, the examiner determined that the conditions are considered acute, transitory in nature, and were treated without residuals. On examination in August 2015, the examiner noted that sinusitis is less likely related to service based on the lack of treatment records shortly after service documenting persistent sinus condition. The private treatment records dated June 2015, diagnosed the Veteran with sinusitis, chronic with chronic headaches and acute flare ups. This is accompanied by the June 2015 letter provided by Dr. T.M, the Veteran's long-time family doctor, where he explained that the Veteran had suffered both conditions since 1960 when the Veteran was released from active duty. Additionally, the physician noted that it is at least as likely as not that the Veteran's sinusitis and headaches are related to active duty military service as his headaches occur up to twice per week, and he often requires treatment of the Veteran's sinus symptoms with oral antibiotics, nasal saline, decongestants. On the Veteran's September 2015 substantive appeal, he stated that his headaches also began in-service and continued ever since, but mostly treated with over the counter medications. The Board noted that the most recent VA examination and the June 2015 private treatment record were conflicting, and thus the Board sought an advisory medical opinion to clarify the etiology of the Veteran's conditions. The February 2018 opinion concluded that the Veteran's recurrent episodes of sinusitis accompanied by headaches are at least as likely as not related to the episodes during service as they are of the same and/or similar etiology and nature of symptoms that the Veteran presently exhibited. To this end, where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As the record proves that the Veteran's recurrent sinusitis with symptoms of chronic headaches associated with his sinusitis are related to active military service, entitlement to service connection is warranted. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). II. Headache Disorder In-service treatment records dated August 1964, and December 1967 show complaints of headaches associated with sinus trouble, but no other indications of a headache disorder. In connection with the Veteran's headache claim, he underwent VA examination in April 2015, where the Veteran complained of headaches everyday with pain at the temples and middle of his forehead lasting and hour or two. The examiner noted this evidence was insufficient to warrant or confirm a current diagnosis of acute or chronic headache disorder or its residuals. The examiner concluded the Veteran's examination as normal, stating that headache pain simply does not provide a diagnosis, etiology or nexus. Thus, the Veteran underwent additional examination in August 2015, which the examiner noted that the Veteran's current headaches are less likely than not (less than 50 percent probability) caused by or associated with the headaches in military service because the headaches in military service were not persistent in nature, and unlikely to resurface later in life particularly as the claims file includes a lack of support in/post-service for the condition. Following this, the Board sought a specialist opinion. The February 2018 specialist opinion interpreted the June 2015 private treatment record as the physician somewhat describing instances of headaches as a different and separate condition than his sinusitis, but no formal diagnosis. However, the specialist noted that the corresponding medical records are silent regarding any other headache condition beside what is associated with his chronic sinusitis. In short, although sympathetic to the Veteran's claim for service connection, in the absence of medical evidence demonstrating that the Veteran has a current headache disorder other than headaches manifesting as a symptom associated with his sinusitis, or has identified current treatment; there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, because the first element of service connection -presence of a current disability-has not been satisfied, the Veteran's claim of entitlement to service connection for a headache disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In finding so, the Board notes that the Veteran's description of his headache pain is credible and competent evidence pertinent to the claim, particularly as it relates to the Veteran's consistent report since service. However, as it pertains to the limited inquiry as to whether the Veteran's headache pain is due to sinusitis or a separate and distinct disability, the Board places greater probative weight on the clinical findings of the clinicians who have greater training and expertise in performing physical examinations and reporting the nature and severity of this type of disability. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Consequently, entitlement to service connection for a headache disorder other than headaches associated with sinusitis is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for sinusitis is reopened. Entitlement to service connection for sinusitis with headaches is granted. Entitlement to service connection for a headache disorder is denied. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs