Citation Nr: 18158991 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 10-19 012 DATE: December 19, 2018 ORDER Service connection for a sinus disorder, to include a pulmonary disorder, is denied. FINDING OF FACT The Veteran does not have a sinus disorder or a pulmonary disorder that had its onset during service or that is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a sinus disorder, to include a respiratory disorder, have not been met. 38 U.S.C. §§ 1103, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1960 to August 1984. This matter is on appeal from a November 2009 rating decision. The claim on appeal was most recently remanded by the Board for additional development in March 2016. The March 2016 Board decision also denied service connection for allergies including hay fever. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for a sinus disorder, to include a respiratory disorder. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran is seeking service connection for a sinus disorder other than allergies, to include a pulmonary disorder. In this regard, in April 2009 correspondence, he reported experiencing frequent sinus infections and viral problems during service. In April 2015 correspondence, the Veteran reported experiencing sinus infections yearly. Thereafter, in a March 2017 statement, he reported being treated with antibiotics for a sinus infection and being diagnosed with asthma and chronic obstructive pulmonary disorder (COPD). The Veteran’s service treatment records (STRs) show that he reported a history of hay fever during a September 1960 entrance examination, but a sinus disorder was not reported or noted at that time. In November 1960, he was treated for symptoms of a cold. He was treated in June 1963 for a cold and stuffy nose, at which time a diagnosis of post nasal drip was made. The Veteran was also treated for bronchitis in November 1968. In July 1977, he was treated for an upper respiratory infection (URI), which included findings of turbinate enlargement and erythematous throat. Several days later, he was given a refill for medication related to nasal congestion that had not resolved. He was treated again for bronchitis and cold symptoms in April 1982. The Veteran’s February 1984 retirement examination does not note any sinus or pulmonary conditions. In addition, in a February 1984 report of medical history, he noted a history of ankle symptoms, but denied having ear, nose, or throat trouble, chronic or frequent colds, sinusitis, asthma, shortness of breath, chest pain or pressure, and chronic cough. The Veteran’s post-service medical records show that he was diagnosed with atopic asthma in November 2005, possible COPD in October 2008, sinusitis several times, including in March 2009, and asthmatic bronchitis in August 2013. In June 2015, he underwent a balloon sinus dilation to treat a left nasal septal deviation. In addition, his medical records show a history of smoking. A February 2006 VA treatment record notes that the Veteran smoked 10 cigars per day prior to quitting in 1995. In a December 2010 letter, the Veteran’s private ear, nose, and throat (ENT) physician reported that he reviewed all of the Veteran’s medical records and that he could not find any correlation between the Veteran’s time in the military and his sinus problems. Pursuant to a January 2014 Board remand, the Veteran was afforded a VA examination in regard to this claim in March 2014. The examiner stated that the Veteran has chronic sinusitis and allergic rhinitis. Based on a review of the Veteran’s medical records, the examiner found that there was no evidence showing that the Veteran experienced chronic sinusitis during service. The examiner also noted that there is no evidence showing that the Veteran’s obstructive lung disease is related to service. Thereafter, pursuant to a March 2016 Board remand, the Veteran was afforded another examination in October 2016. The examiner reported that the Veteran has sinusitis, rhinitis, and a deviated nasal septum. The examiner stated that the Veteran’s deviated septum is due to a childhood injury and that this condition causes him to experience recurrent sinus congestion and sinusitis. He concluded that it is less likely than not that the Veteran’s nasal or sinus conditions were caused by his military service. Another medical opinion in regard to this claim was obtained in December 2016. However, the examiner found that a nexus opinion in regard to a sinus disorder could not be offered without resorting to mere speculation. Subsequently, in February 2016, the Board requested a medical expert opinion on the issue of causation from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901, which was received in September 2017. The opinion was written by a Staff Surgeon and Otolaryngologist at a VA medical facility. The examiner reviewed the claims file and the Veteran’s medical records. He noted that the Veteran had sinus x-rays performed in March 1999 that were found to be normal. The examiner also noted that a June 2015 sinus CT scan showed mild mucosal thickening. The examiner reported that the average adult in the United States experiences between two and three upper respiratory viral infections annually. He also reported that these typically resolve within five to seven days. He further reported that bacterial sinusitis symptoms resolve within four weeks. The examiner explained that a chronic sinusitis diagnosis requires notable symptoms for a minimum of 12 consecutive weeks or longer. The examiner found that the Veteran’s nasal and sinus disorders are less likely as not related to his military service. The examiner stated that, while the Veteran has experienced URIs and acute sinusitis, he has not been diagnosed with chronic sinusitis. He explained that the Veteran’s March sinus 1999 x-ray was normal, and, thus, without changes indicating acute or chronic sinusitis. The examiner also noted that being prescribed antibiotics does not by itself confirm the presence of acute bacterial or chronic sinusitis. The examiner further explained that the Veteran’s hay fever diagnosis refers to an allergic condition. He declined to offer an opinion regarding the Veteran’s pulmonary conditions. In July 2018, the Board obtained another VHA expert medical opinion from an Associate Chief of Staff for Pulmonary and Respiratory Operations for a VA facility. The examiner reviewed the claims file and the Veteran’s medical records. He found that the Veteran’s COPD is caused by his tobacco use. The examiner explained that COPD most affects smokers older than 40 years of age and that its prevalence increases with age. The examiner noted that the Veteran smoked 10 cigars daily until 1995 and that regular cigar smoking is associated with an increased risk of COPD. The examiner reported that the Veteran’s COPD is at least as likely as not due to smoking cigarettes and/or cigars during service. The examiner also reported that asthmatic bronchitis is a less well-defined diagnosis. He found that if this condition is defined as asthma and acute bronchitis occurring together, it is at least as likely as not that this condition did not have its onset directly during service and is not otherwise causally related to any event or circumstances of service. The examiner explained that the Veteran was not diagnosed with asthma during service, although he was treated for bronchitis while in the military. The Board finds that the September 2017 and July 2018 VHA examiners’ expert medical opinions are clear and based the relevant information, including the Veteran’s statements, STRs and post-service medical records. Moreover, the examiners provided a logical explanation for the conclusions reached. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, the September 2017 VHA examiner explained the difference between acute and chronic sinus conditions and that the Veteran has not been diagnosed with chronic sinusitis, and, thus, does not have a sinus disorder that is related to service. In addition, the July 2018 VHA examiner explained that the Veteran’s COPD is likely related to his use of tobacco for many years. He also explained that the Veteran’s asthma and acute bronchitis diagnoses are not related to his service. The Board finds these explanations to be logical and follow from the facts and information given. The Board acknowledges that the July 2018 VHA examiner stated that it is “at least as likely as not . . . that asthmatic bronchitis did not have its onset directly during the Veteran’s service or is otherwise causally related to an event” in service (rather than opining that it was less likely that asthma started in service or was due to an in-service event). Regardless of the precise language used, it is clear from a reading of the report as a whole that the examiner opined that the Veteran’s asthma did not start in service and was less likely due to an in-service event. See Monzingo, 26 Vet. App. 97, at 106 (“the medical report must be read as a whole”); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012) (a VA examination report “must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination”). Thus, the Board finds the September 2017 and July 2018 VHA examiners’ conclusions to be highly persuasive and probative evidence. The Board notes that, in a September 2018 statement, the Veteran’s representative reported that the July 2018 VHA examiner found that the Veteran’s COPD is due to his in-service tobacco use. However, for claims received after June 9, 1998, service connection based on the effects of tobacco products is prohibited. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. In addition, the evidence shows that the Veteran’s deviated nasal septum clearly and unmistakably pre-existed his entrance into service. Furthermore, the evidence does not show and the Veteran has not contended that this condition was aggravated during service beyond its natural progression. While the Veteran believes that he has sinus and pulmonary conditions due to his service, these are complex medical questions outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. The Veteran, as a lay person, has not established the competence needed to rebut expert medical opinions. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. As such, his opinion is not adequate to rebut the September 2017 and July 2018 VHA examiners’ opinions, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his sinus and pulmonary conditions and service. See Fountain, 27 Vet. App. at 274-75. Accordingly, the Board finds that most probative evidence does not show that the Veteran has a sinus or pulmonary disorder that had its onset during service or that is etiologically related to service. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel