Citation Nr: 18147836 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-19 176A DATE: November 6, 2018 ORDER Service connection for chronic sinusitis is denied. Service connection for a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. There is no probative medical evidence that indicates the Veteran’s current chronic sinusitis disability had its onset during service or was caused or aggravated by the Veteran’s service-connected posttraumatic stress disorder (PTSD) disability. 2. There is no probative medical evidence that indicates the Veteran has a current traumatic brain injury (TBI) disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic sinusitis disability have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for service connection for a traumatic brain injury (TBI) disability have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1942 to February 1946. The case was remanded in May 2017 for addendum medical opinions. All actions ordered by the remand have been accomplished. Effective May 27, 2015, the Veteran is in receipt of a total disability evaluation based on individual unemployability ( TDIU ) and separate grants of special monthly compensation on various bases. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for chronic sinusitis Private treatment records indicate the Veteran has received treatment for chronic sinusitis since at least March 2015. Service treatment records (STRs) indicate in July 1945, during an examination for complaints of insomnia, anorexia and fever, the examiner noted the Veteran had sinusitis two weeks prior. There are no other complaints, diagnoses or treatments for sinusitis in service. The Veteran’s February 1946 sinus examination at separation was normal. At the August 2015 VA medical examination, the Veteran reported he did not recall the date of a clinical diagnosis of chronic sinusitis. The Veteran reported he has experienced nose congestion since service and has treated his current sinusitis with a nasal spray. The examiner diagnosed the Veteran with chronic sinusitis, noting the Veteran demonstrated near-constant sinusitis, with headaches and nasal tenderness. The examiner opined the Veteran’s current sinusitis was not incurred or related to his in-service diagnosis. In April 2016, a VA examiner reviewed the Veteran’s claims file and opined that the Veteran’s in-service sinusitis condition had resolved, noting that the Veteran’s sinus examination at separation was normal and there was no evidence the Veteran had chronic sinusitis while on active duty. The examiner also noted that there was no medical literature to support the contention that chronic sinusitis was due to or aggravated beyond its normal progression by PTSD. At the April 2018 VA medical examination, the Veteran reported sinus symptoms of watery eyes, sinus pressure, and congestion during service. He also reported these symptoms had worsened since service, especially in the morning when he first goes outside. The examiner diagnosed the Veteran with sinusitis and non-allergic rhinitis. The examiner opined that the Veteran’s current sinusitis was not incurred in service or caused by the in-service sinusitis incident because medical records did not indicate treatment for sinusitis until March 2015. Although the examiner acknowledged the Veteran’s lay statements regarding symptoms and frequency of symptoms since service, the examiner noted that the “absence of records since 1945 to approximately 2015 (approximately 70 years)” indicated that the Veteran’s current sinusitis was not related to his in-service episode of sinusitis. The preponderance of the evidence is against finding service connection for a sinusitis disability. There is no probative medical evidence that indicates the Veteran’s current sinusitis disability had its onset in service or was caused or aggravated beyond its normal progression by his service-connected PTSD disability. The Veteran has continuously asserted throughout the appeal that his current sinusitis disability is related to his 1945 in-service sinusitis episode. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current sinusitis disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Sinusitis requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service. Since the Veteran’s current sinusitis disability was not incurred in service or caused or aggravated by his service-connected PTSD disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a traumatic brain injury (TBI) In a June 2012 statement, the Veteran reported that while fighting in Okinawa, Japan, a bomb blast knocked him unconsciousness. When he woke, he felt dizzy, with blood on the back of his head. The Veteran reported he was bandaged and returned to duty. A few days later, after his head injury had become infected, the Veteran reported a piece of metal shrapnel was removed. The Veteran stated he was again bandaged, and the infection subsided. The Veteran contends his seizure and headache disabilities are residuals of a current TBI disability that initially occurred in-service. The Veteran’s STRs do not substantiate any treatment for an in-service head injury. However, the Veteran’s personnel records indicate the Veteran participated in hostilities “against the enemy” in Okinawa, Japan. Generally, VA will accept as true a combat veteran’s report of injury or disease in service, as long as the report is consistent with the circumstances, conditions, or hardships of such service, and in the absence of evidence to the contrary. See 38 C.F.R. §§ 3.304 (d). Given the evidence of the Veteran’s participation in hostile action, the Veteran’s in-service head injury is recognized. 38 U.S.C. § 1154 (b). At the September 2015 VA medical examination for seizures, the Veteran reported he had dizzy spells since service and had his first tonic-clonic or grand mal seizure in 2002. The Veteran reported he treated his seizure disorder with medication that has since controlled the seizures. The Veteran reported he had a total of 3 seizures since service. The examiner opined the Veteran’s seizure disorder was not proximately due to or the result of his in-service head injury because the Veteran did not have seizures for several years before his first seizure in 2002. At the September 2015 VA medical examination for residuals of TBI, the Veteran reported headaches and dizzy spells since service, with periods of confusion prior to his first seizure in 2003. The examiner noted the Veteran demonstrated normal memory, attention, concentration, executive function and judgment. The examiner also noted the Veteran demonstrated routinely appropriate social interaction, proper orientation to person, time, place and situation, normal motor activity, visual spatial orientation, and communication, and no subjective symptoms. The examiner diagnosed the Veteran with an acute TBI in 1945 that had resolved. At the February 2016 VA medical examination for headaches, the examiner opined the Veteran’s headache disability was proximately due to or the result of his service-connected PTSD disability. At the April 2018 VA medical examination for residuals of a TBI, the Veteran reported his headaches after the initial head injury resolved three months after discharge. He also reported his first seizure was 25 years ago, with a second seizure a few months later. Since treatment, he did not have additional seizures. The Veteran reported, however, that in the past year he had increased dizziness. The examiner noted severe impairment of memory, attention, concentration or executive functions. The examiner also noted normal judgment, routinely appropriate social interaction, occasional disorientation to person, time, place or situation, with mildly slowed motor activity. The Veteran also demonstrated mildly impaired visual spatial orientation, and mild subjective symptoms. The Veteran did not demonstrate neurobehavioral effects, with normal communication skills and consciousness. The examiner noted the Veteran’s examination indicated severe cognitive impairment that most likely represented the onset of dementia. The examiner opined that given the Veteran’s “history and results of neurologic exam today, he had a mild TBI in 1944, which resolved, with no residual symptom from that TBI that affect him at this time.” The examiner also opined the Veteran’s dementia was most likely caused by Alzheimer’s Disease. The preponderance of the evidence is against finding service connection for a TBI disability. There is no probative medical evidence that indicates the Veteran demonstrates a current TBI disability. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim.”) The Board notes the April 2016 medical opinion of the Veteran’s private physician, in which he stated that the Veteran experiences multiple medical problems that originated from his in-service head injury. This opinion is conclusory and provides insufficient analysis to consider and weigh his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). It does not provide a fact-based explanation for the conclusion that the Veteran demonstrates residuals of a TBI. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In comparison, the VA medical opinions are highly probative. The examiners conducted thorough evaluations for objective medical evidence of residuals of a TBI, reviewed the record for any fact-based objective evidence of symptoms related to the Veteran’s in-service head injury during and after service, and acknowledged the Veteran’s lay statements regarding the onset and frequency of symptoms and the circumstances of his military service. The Veteran has continuously asserted throughout the appeal that his current seizures and headaches are residuals of a current TBI that initially occurred in service. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but he is not competent to render a diagnosis of a TBI or attempt to present lay assertions to establish a nexus between his current seizure and headache diagnoses and their relationship to his in-service head injury. (Continued on the next page)   Since the Veteran does not demonstrate a current TBI disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel