Citation Nr: 18155897 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-50 371 DATE: December 6, 2018 ORDER 1. Entitlement to service connection for residuals of elective breast augmentation surgery is denied. 2. Entitlement to an initial compensable rating for chronic sinusitis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s residuals of elective breast augmentation surgery were the result of or otherwise related to a disease or injury in service. 2. The Veteran’s chronic sinusitis is not manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of elective breast augmentation surgery are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.306(b)(1). 2. The criteria for an initial compensable rating for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1991 to February 1995. 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. 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). 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. 1. Entitlement to service connection for residuals of elective breast augmentation surgery The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for residuals of breast surgery. The reasons follow. The Veteran has been diagnosed with residuals of breast surgery, and thus there is evidence of a current disability. However, as to direct service incurrence, the Veteran’s claim fails on both an in-service disease or injury. For example, the service treatment records (STRs) show that the Veteran underwent an elective bilateral augmentation mammoplasty in June 1993, after requesting the surgery in September 1992. The September 1992 record noted that the Veteran was healthy and had no personal medical history. While acknowledging that the Veteran has current pain and scarring as a result of elective surgery performed during active service, one of the requirements to establish service connection is that the Veteran incur or aggravate a disease or injury during service. The U.S. Court of Appeals for the Federal Circuit defines “service trauma” as “an injury or wound produced by an external physical force during the service member’s performance of military duties.” As the Veteran underwent elective surgery, specifically breast augmentation, and such surgery was not the result of a disease or injury in service, service connection cannot be established. However, even if the Veteran’s surgery was deemed non-elective, the Board notes that the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Here, the evidence does not show, and the Veteran does not contend, that a pre-existing disease or injury was aggravated by service. Therefore, the residuals of the Veteran’s breast augmentation surgery are not eligible for service connection on this basis either. The Board notes an April 2015 VA opinion, where the examiner opined that the Veteran’s disability is related to service. However, while the examiner opined that the current residuals are related to the elective breast surgery in service, as mentioned above, the Board finds that the original surgery itself was not the result of a disease or injury in service. Thus, the examiner’s medical opinion does not change the outcome of the claim. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for residuals of breast surgery. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s chronic sinusitis is rated as noncompensable (zero percent) under the General Rating Formula for Sinusitis. See 38 U.S.C. § 4.97, DC 6513. Under the General Rating Formula, a noncompensable rating is warranted for sinusitis detected by x-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. Finally, a 50 percent (maximum) rating is warranted for chronic sinusitis following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. Id. In the May 2015 rating decision on appeal, the Veteran was granted service connection for chronic sinusitis, claimed as residuals septo-rhinoplasty, and assigned a noncompensable rating effective February 10, 2015. 2. Entitlement to an initial compensable rating for chronic sinusitis The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an initial compensable rating for chronic sinusitis. The reasons follow. The evidence shows that the Veteran’s chronic sinusitis does not result in one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, to warrant a 10 percent rating. At worst, the Veteran’s chronic sinusitis has been manifested by two non-incapacitating episodes per year and no incapacitating episodes, as documented in the April 2015 VA examination. The August 2016 VA examination found one non-incapacitating episode per year and no incapacitating episodes. In VA treatment records between November 2002 and February 2017, the Veteran denied sinus headaches or congestion, but reported periodic rhinitis after the surgery, which improved with medication. These records do not support a finding of one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Accordingly, these records do not assist in entitlement to a compensable rating. The Board concludes that the preponderance of the evidence is against a finding that the Veteran’s sinusitis is manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, which is the criteria needed for a 10 percent rating. Examination results throughout the appeal period show that the Veteran had no incapacitating episodes and between one to two non-incapacitating episodes per year. In sum, the evidence does not show that an initial 10 percent disability rating for chronic sinusitis is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel