Citation Nr: 18159044 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 12-02 895 DATE: December 18, 2018 ORDER Entitlement to service connection for a sinus disability is denied. Entitlement to service connection for hypertension, to include as secondary to medications is denied. FINDINGS OF FACT 1. The Veteran’s sinus disability pre-existed military service and did not chronically worsen therein. 2. The Veteran’s hypertension pre-existed military service and did not chronically worsen therein; the Veteran’s hypertension was also not caused or aggravated by the Veteran’s medications. CONCLUSIONS OF LAW 1. The criteria for service connection for a sinus disability have not been met. 38 C.F.R. §38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). 2. The criteria for service connection for hypertension, to include as secondary to medications, have not been met. 38 C.F.R. §38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to January 1983, from October 2001 to May 2002, from June 2003 to May 2004, from July 2005 to February 2007, and from June 2007 to September 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 208 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded these matters in May 2016. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2016. A transcript of the hearing is of record. Following the Board hearing, the Board remanded these matters again in September 2017. The Board finds there has been substantial compliance with its September 2017 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). 1. Entitlement to service connection for a sinus disability The Veteran contends that her pre-existing sinus disability was aggravated by her active duty service. Treatment records from between some of the Veteran’s periods of service show that in July 2002 and January 2003 the Veteran was noted to have sinusitis. The report of a service examination conducted in April 2003 (two months prior to entrance into the next period of service) reflects that the Veteran reported a history of being treated at a hospital emergency room for sinusitis. The examining physician stated that the Veteran had 3 episodes of sinusitis in the past year, but that this did not prevent her from performing her duties. Because the evidence documents sinusitis prior to service, the Board finds that sinusitis existed prior to acceptance and enrollment for active military service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. In addition, the Board is of the opinion that the April 2003 examination functioned as the entrance examination for the period of active service which started in June 2003. Thus, the sinusitis was noted on the entrance examination. However, even if that April 2003 examination was not considered to be an entrance examination, the evidence is still sufficient to show that sinusitis clearly and unmistakably existed prior to service. The Board will, therefore, consider whether service connection is warranted on the basis of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that “if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder”). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, 370 F.3d at 1096; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity “must be answered in the affirmative before the presumption of aggravation attaches”). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. See Wagner, 370 F.3d at 1096; Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306 (b). In March 2004, the appellant was treated for sinus pressure and fever. The assessment was sinusitis. In a November 2005 service treatment record, the Veteran complained of sinus problems including sinus congestion and drainage. The Veteran was diagnosed with allergic rhinitis. An April 2007 service treatment record noted that the Veteran had some sinus congestion. A January 2008 private treatment record noted a diagnosis of sinusitis. In a January 2008 VA examination, the Veteran reported that during service she felt that they may have been exposed to asbestos. She reported problems with headaches, facial pressure, congestion, postnasal drip and a slight cough. She said she was placed on nasal spray without significant decrease in her symptoms. She was now currently on over the counter medication with a slight decrease in her symptoms. She denied any sinus surgery or any significant sinus infections. In a May 2009 private treatment record, the Veteran complained of a sinus infection. The treating physician assessed the Veteran with sinusitis and pharyngitis, B12 deficiency trace edema of lower extremities, allergic rhinitis, and reflux. In a June 2009 private treatment record, the physician opined that the Veteran’s upper respiratory infections, amongst other conditions, were likely a direct result of the injuries or treatments while serving on active duty. At the Board hearing, the Veteran testified that she first started having problems with sinusitis in March 2004. She said she was treated but that the condition continued to bother her and she was treated for sinusitis following service. She asserted that during service she was exposed to mold due to living conditions. The Veteran stated that she visited the emergency room for sinus problems, and that she used nose sprays and other medications and steroids for her sinusitis. She said that she suffered incapacitating episodes due to her sinusitis. In a February 2016 private treatment record, the physician noted that the Veteran was seen several times by a military physician dating back to 2003 and was diagnosed with sinusitis in March 2004. In September 2004, the Veteran was diagnosed as having a viral syndrome on which she was given 4 medications typically used to treat sinusitis. In March 2006, the Veteran was treated for a cold with sinus pain. It was noted that she visited the doctor several times for flu-like symptoms. The Veteran was also treated by the civilian emergency room for sinusitis. The physician concluded that what began as an episode of sinusitis had become aggravated by her military duties and service. The physician said that the Veteran continued to be treated for attacks of sinusitis by other civilian physicians as well as being treated throughout the years by several military physicians during her career in the military. In a November 2016 VA examination, the Veteran’s signs or symptoms of chronic sinusitis included the following: chronic sinusitis, episodes of sinusitis, headaches, pain of affected sinus, tenderness of affected sinus, purulent discharge, and crusting. It was noted the Veteran had 7 or more non-incapacitating episodes of sinusitis within the past 12 months and no incapacitating episodes in the past 12 months. In a subsequent November 2016 VA opinion, the examiner opined that it was less likely as not that the Veteran’s sinusitis was incurred in or caused by service. The examiner reasoned that sinusitis predated service. In April 2003, the Veteran cited a history of sinusitis and hypertension (controlled with medication) on the Report of Medical History. The examiner further opined that it was less likely as not that the sinus disability existed during the first period of service. The evidence was negative for chronic sinusitis. The examiner also opined that the Veteran’s claimed condition which clearly and unmistakably existed prior to service was aggravated beyond its natural progression by an in-service event, injury or illness. The examiner provided similar rationale that the Veteran in April 2003, the Veteran cited a history of sinusitis and hypertension (controlled with medication) on the Report of Medical History. The examiner at the April 2003 examination noted that the Veteran had 3 episodes of sinusitis in the past year, and that hypertension was diagnosed in the 2001 to 2002 range. The Veteran was treated 6 times for sinusitis during service and 8 times following service. The Board notes that this VA opinion was found to be inadequate as the determination of whether the Veteran’s sinusitis increased in severity was unclear. Additionally, the opinion seems conflicting as the examiner seemed to find the Veteran’s sinusitis was aggravated beyond its natural progression, but the rationale would seem to suggest that there was no aggravation beyond its natural progression. In a July 2017 disability benefits questionnaire ( DBQ ), the Veteran was noted to have non-incapacitating episodes of sinusitis 7 times in the past 12 months. The examiner was noted to have 3 or more incapacitating episodes in the past 12 months. The Veteran reported that her chronic episodes caused continuous nasal drainage with productive cough, sore throat, headache, nausea, and prevented her from performing in a professional capacity. She said the sinus problems were consistently getting worse. In a subsequent July 2017 private treatment record, the physician opined that the Veteran’s sinusitis was as likely due to her military service. In a November 2017 clarifying VA opinion, the examiner opined that it was less likely than not that the Veteran’s sinusitis was due to or the result of service. The examiner further opined that the claimed sinusitis, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by its in-service event, injury or illness. The examiner stated that the evidence was consistent that the Veteran’s sinusitis pre-existed service. The medical records reflected the Veteran’s chronic sinusitis was diagnosed by medical treatment records prior to service in January 2003 after the second period of service from October 2001 to May 2002, but before the third period of service from June 2003 to May 2004. Although there was treatment for acute sinusitis in June 2000 and October 2000, the evidence reflected the Veteran’s sinusitis was in a chronic state prior to active duty with 2 or more per year, which continued through the periods of active duty at interval which in normal clinical course for chronic sinusitis. Finally, the examiner stated that despite the assertions of the Veteran and her primary care physician, the evidence of record proved that the opinion remained unchanged. The examiner found that the positive private opinion assessments clearly did not account for the sinusitis pattern present before service. Additional post-service treatment records do now provide any opinions regarding an increase in severity of the Veteran’s sinusitis beyond its natural progression. The Veteran is certainly competent to report on the severity of symptoms such as sinus issues in service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the “[l]ay testimony is competent... to establish the presence of observable symptomatology”). Here, however, the relevant inquiry turns on whether there was a change in the underlying pathology of the pre-existing sinusitis, “as distinguished from the mere recurrence of manifestations of the pre-service condition.” Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (stating that “[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability.”). The Board finds that whether there was a change in the underlying pathology of the Veteran’s pre-existing sinusitis is a medical determination. Because the Veteran is a lay person without the appropriate medical training and expertise, she is not competent to state that there was a change in the underlying pathology of her pre-existing sinusitis. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Upon a review of the evidence of record, the Board finds that there is no evidence demonstrating that the Veteran’s pre-existing sinusitis underwent an increase in severity chronically worsened (i.e., underwent a permanent increase in the underlying pathology beyond the natural progression) during her military service. Although the service treatment records document sinusitis, treatment of this condition did not seem severe in nature. To the extent that the Veteran experienced any treatment during service on account of her military duties in, an intermittent or temporary flare-up during service of a pre-existing injury or disease does not constitute aggravation pursuant to 38 U.S.C. § 1153 unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As noted above, the VA examiners found that the Veteran’s sinusitis was clearly and unmistakably not permanently aggravated beyond its natural progression. The Board notes that private opinions of record that find the Veteran’s sinusitis was related to service, the Board finds these opinions less probative as these were based on the Veteran’s testimony alone and did not address the increase in severity or aggravation. Therefore, the Board finds the November 2017 VA examiner’s opinion most probative as it adequately addressed direct service connection and aggravation. Without some objective evidence demonstrating a worsening of the underlying pathology of the Veteran’s sinusitis in service, the Board concludes that the evidence does not support a finding of aggravation. Thus, because the Veteran’s sinusitis was noted to have pre-existed her active military service, and was not aggravated therein, the Board finds that the Veteran’s claim for service connected aggravation of pre-existing sinusitis must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Wagner, 370 F.3d 1089. 2. Entitlement to service connection for hypertension, to include as secondary to medications The Veteran contends that her pre-existing hypertension was aggravated by her active duty service. The Veteran also contends that her pre-existing hypertension was aggravated by the medications that she takes for her illnesses. Treatment records show that in November 2002 and January 2003 the Veteran was noted to have hypertension. In an April 2003 report of medical history, high blood pressure was noted. The examining physician stated that the Veteran’s hypertension was diagnosed between 2000 to 2001. His blood pressure was noted as 118/78. Because the evidence documents hypertension prior to service, the Board finds that hypertension existed prior to acceptance and enrollment for active military service. See Crowe, 7 Vet. App. at 245; 38 C.F.R. § 3.304. The Board will, therefore, consider whether service connection is warranted on the basis of aggravation of a pre-existing condition. See Wagner, 370 F.3d at 1096. As stated above, a pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen, 19 F.3d at 1417. In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, 370 F.3d at 1096; Verdon, 8 Vet. App. at 538. Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. See Wagner, 370 F.3d at 1096; Cotant, 17 Vet. App. at 123-30; 38 C.F.R. § 3.306 (b). In a January 2002 service treatment record, the Veteran’s blood pressure was noted to be 118/80. In a November 2005 service treatment record, the Veteran’s blood pressure was noted to be 120/66. A March 2006 private treatment record noted a diagnosis of essential hypertension. A May 2006 private treatment record noted the Veteran’s blood pressure as 137/82. An October 2007 private treatment record noted a diagnosis of hypertension. In a January 2008 VA examination, the Veteran reported that in 1999 she was noted to have elevated blood pressure. At that time she was placed on medication. In a June 2009 private treatment record, the physician opined that the Veteran’s hypertension, amongst other conditions, were likely a direct result of the injuries or treatments while serving on active duty. Specifically, the physician stated that the various medications for various injuries or conditions resulted in systemic hypertension. At the Board hearing, the Veteran testified that she was told in 2007 that she had high blood pressure that was controlled. She said it was not controlled now and that she was on two medications now. She said that her high blood pressure was caused by taking medications for her sinusitis. She said it was also caused by the medications she took for her knee injury, back injury, and neck. The Veteran stated that she was initially diagnosed with essential hypertension which changed to malignant hypertension. In a February 2016 private treatment record, the physician opined that the Veteran’s pre-existing hypertension was and had been aggravated and made worse by service. The physician stated that the Veteran was prescribed several medications for injuries and sickness she sustained while in the military. She was also prescribed medication for sinusitis and other upper respiratory infections that would and did raise her blood pressure, thus making her hypertension systemic and malignant. The physician said that this was a cause and effect situation. She was given a number of prescribed NSAIDs for various diagnosis which raised her blood pressure. It was noted that she was now taking 2 prescribed hypertension medications to control her blood pressure. In a November 2016 VA examination, the Veteran reported that her sinus medication and injuries raised her blood pressure. Average blood pressure reading was 147/95. In a subsequent November 2016 VA opinion, the examiner opined that it was less likely as not that the Veteran’s hypertension was incurred in or caused by service. The examiner stated that the Veteran reported a diagnosis of hypertension in 1999. However, evidence suggested a diagnosis of hypertension between 2001 and 2002. The examiner stated that he was unable to locate the record dated April 19, 2001. The examiner further opined that it was less likely as not that any hypertension was related to the Veteran’s first period of active service from October 1982 to January 1983. The examiner reiterated that the Veteran did not report a diagnosis of hypertension until 1999 and the evidence available suggested a diagnosis of hypertension between 2001 and 2002. The examiner also opined that the claimed condition, which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner noted again that the Veteran reported a diagnosis in 1999 and in April 2003, the Veteran cited a history of hypertension. Blood pressure readings from February 2002 to June 2010 ranged from 104 to 137 systolic and 69 to 84 diastolic. Again, the Board found this VA opinion to be inadequate as it did not provide a clear determination on the whether the Veteran’s hypertension increased in severity. In a May 2017 addendum VA opinion, the examiner was able to review the April 19, 2001 medical treatment record which diagnosed the Veteran with hypertension, malignant. The examiner confirmed his prior opinion and found that it was less likely as not that the Veteran’s hypertension incurred in or was caused by service. Further, the examiner confirmed his prior opinion that the Veteran’s hypertension was not aggravated beyond its natural progression. The same rationale in the November 2016 VA opinion was used. The Board found this opinion inadequate as it did not clearly address aggravation of the Veteran’s hypertension. In a subsequent July 2017 private treatment record, the physician opined that the Veteran’s hypertension was as likely due to her military service. In a November 2017 VA opinion, the examiner opined that it was less likely than not that the Veteran’s hypertension was due to or the result of service. It was also less likely than not that the claimed hypertension, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. Finally, it was less likely than not that the current hypertension was proximately due to or aggravated by the medication prescribed for service-connected and non-service-connected disabilities. The examiner reasoned that first the evidence was clear that the Veteran’s hypertension pre-existed service and therefore was not related to direct service. The medical evidence reflected that the Veteran had been diagnosed with and treated for hypertension since June 2000, pre-existing active duty service. Second, the blood pressure readings in the record clearly did not reflect that the Veteran’s pre-existing hypertension increased in severity. After referencing to multiple blood pressure readings, the examiner stated that the evidence in fact reflected that the hypertension was controlled on active duty, in the presumptive period and after service. Additionally, further evidence revealed that the Veteran was taking various medications for pain and sinusitis. Though the literature supported the fact that some of the medications could increase blood pressure, the Veteran remained in the pre-hypertension stage until 2015 and 2016. According to literature, progression of hypertension was variable with persistence of low with little evidence of worsening or complications for 20 to 30 years with treatment. However, extreme rapid progression was associated with severe damage progression and/or death in extreme malignant hypertension. The examiner considered the positive private opinions of record; however, did not find these opinions to be probative or consistent with the evidence of record. Additional post-service treatment records do now provide any opinions regarding an increase in severity of the Veteran’s hypertension beyond its natural progression. Post-service treatment records also do not show any nexus between the Veteran’s medications and aggravation of her hypertension. The Veteran is certainly competent to report on the severity of symptoms such as sinus issues in service. See Barr, 21 Vet. App. at 307. Here, however, the relevant inquiry turns on whether there was a change in the underlying pathology of the pre-existing hypertension, “as distinguished from the mere recurrence of manifestations of the pre-service condition.” Davis, 276 F.3d at 1345. The Board finds that whether there was a change in the underlying pathology of the Veteran’s pre-existing hypertension is a medical determination. Because the Veteran is a lay person without the appropriate medical training and expertise, she is not competent to state that there was a change in the underlying pathology of her pre-existing hypertension. See Jandreau, 492 F.3d at 1374-75; see also Colantonio, 606 F.3d at 1382. Upon a review of the evidence of record, the Board finds that there is no evidence demonstrating that the Veteran’s pre-existing hypertension underwent an increase in severity chronically worsened (i.e., underwent a permanent increase in the underlying pathology beyond the natural progression) during her military service. Although the service treatment records document hypertension, treatment of this condition did not seem severe in nature. To the extent that the Veteran experienced any treatment during service on account of her military duties in, an intermittent or temporary flare-up during service of a pre-existing injury or disease does not constitute aggravation pursuant to 38 U.S.C. § 1153 unless the underlying condition, as contrasted to symptoms, is worsened. Hunt, 1 Vet. App. at 297. As noted above, the VA examiners found that the Veteran’s hypertension was clearly and unmistakably not permanently aggravated beyond its natural progression. The November 2017 VA examiner also found that the Veteran’s medications did not aggravate the Veteran’s hypertension. The Board notes that private opinions of record that find the Veteran’s hypertension was related to service and/or aggravated by medications taken for her service-connected disabilities, the Board finds these opinions less probative as these were based on the Veteran’s testimony alone and did not adequately address the increase in severity or aggravation. Therefore, the Board finds the November 2017 VA examiner’s opinion most probative as it adequately addressed direct service connection and aggravation. (Continued on the next page)   Without some objective evidence demonstrating a worsening of the underlying pathology of the Veteran’s hypertension in service, the Board concludes that the evidence does not support a finding of aggravation. Thus, because the Veteran’s hypertension was noted to have pre-existed her active military service, and was not aggravated therein, the Board finds that the Veteran’s claim for service connected aggravation of pre-existing hypertension must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Wagner, 370 F.3d 1089. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel