Citation Nr: 1807115 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-23 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for sinusitis, to include as secondary to service-connected residuals of septorhinoplasty. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1971 to January 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2015 and April 2017, the Board remanded the issue to the RO. The RO was ordered by the Board to, inter alia, schedule the Veteran for examination and obtain a medical opinion regarding the etiology of the Veteran's sinusitis. It has done so and has issued a Supplemental Statement of the Case in response to the information obtained. The Board notes that the claim for entitlement to service connection for diverticulitis is not before the Board. In an October 2017 rating decision, the RO granted service connection for diverticulosis. Further, the RO assigned the Veteran's service connection for diverticulosis under the diagnostic code for diverticulitis. As such, there would be no additional compensation due to a service connection grant of both diverticulosis and diverticulitis, and therefore, the Board considers the issue to have been resolved and the benefit granted in full. FINDINGS OF FACT The Veteran's sinusitis is neither caused nor aggravated by service-connected residuals of septorhinoplasty and is unrelated to service. CONCLUSIONS OF LAW The criteria for service connection for sinusitis are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In February 2015 and April 2017, the Board remanded the Veteran's claims for additional development, to specifically include a VA opinion to address the etiology of the Veteran's claimed condition. For the reasons indicated in the discussion below, the July 2017 VA examiner adequately addressed the questions posed in the remand, thus there has been substantial compliance with the Board's remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist, nor have any such issues been raised by the evidence of record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. II. Analysis Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran contends that his sinusitis developed as a result of his septorhinoplasty in service. Specifically, he claims that after he had surgery to correct his deviated septum in service, he started developing chronic problems with his sinuses, including chronic drainage, congestion, and difficulty breathing, especially at night when attempting to lie down. See October 2010 notice of disagreement. Service treatment records show that the Veteran had a septorhinoplasty during service due to a nasal deformity. No evidence of sinusitis was noted during service or at the time of his discharge. On VA examination in March 2009, the only residual found from the Veteran's in-service septorhinoplasty was nose twitching when the eyes blinked. Sinusitis was not diagnosed at that time. On VA examination in August 2010, the Veteran reported nasal congestion and drainage, and denied any symptoms or treatment for sinusitis or any acute sinusitis. There was no diagnosis of sinusitis made at that time. VA treatment records show that a CT scan of the paranasal sinuses in April 2011 revealed evidence of sinus disease involving the left maxillary and ethmoid sinuses. In a February 2012 VA examination for ear, nose, and throat VA examination, there was no indication of symptoms or a diagnosis related to sinusitis. In a January 2016 VA examination, the examiner opined that the Veteran did not have a diagnosed sinus disability or chronic sinusitis. In a July 2017 VA examination, the examiner diagnosed the Veteran with chronic sinusitis and allergic rhinitis. The examiner noted that the Veteran's sinusitis affected his maxillary and ethmoid sinuses. The examiner also noted that the Veteran did not have any incapacitating episodes of sinusitis requiring prolonged (four to six weeks) of antibiotics treatment in the past 12 months. The examiner opined that the Veteran's sinusitis is less likely than not incurred in-service or caused by an in-service injury, event, or illness. The examiner reasoned that she reviewed the Veteran's medical records and did not locate any diagnosis of a sinus condition or treatment for a sinus condition while the Veteran was active in service. The examiner also opined that the Veteran's sinusitis is less likely than not due to or the result of the Veteran's service-connected septorhinoplasty. The examiner reasoned that after reviewing the medical literature, she found no evidence of a relationship between septorhinoplasty and the development of sinusitis or allergic rhinitis. Upon review of the documents of record, the Board finds that service connection for sinusitis is not warranted. As an initial matter, the Board notes that the Veteran was diagnosed with chronic sinusitis in a July 2017 VA examination and as such, the Veteran has met the current disability requirement. The evidence of record is against the Veteran's claim that his sinusitis is due to or aggravated by his service-connected septorhinoplasty. The July 2017 VA examiner opined that the Veteran's septorhinoplasty less likely than not caused or aggravated the Veteran's sinusitis. The July 2017 VA examiner specifically noted that after reviewing the medical literature, there was no evidence of a relationship between septorhinoplasty and the development of sinusitis or allergic rhinitis. This statement, indicating a complete lack of relationship between the septorhinoplasty and sinusitis, is broad enough to indicate a lack of aggravation as well as causation. El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (request for an opinion whether a non-service condition "was related to" a service connected condition "could . . . be interpreted as including a request for an opinion on aggravation"); Chavez v. McDonald, No. 13-2886, 2014 WL 4662475 (mem dec, Sept. 22, 2014) (a medical opinion indicating a lack of relationship between left and right ankle disabilities was adequate even though it did not specifically say "not aggravated," because read as a whole it encompassed aggravation (citing Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record)). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). In addition, to the extent that the Veteran's argument that his sinusitis is related to his in-service rhinoplasty equates to an argument that it was related to service, the weight of the evidence is against such an assertion. The Veteran's statements all relate to the theory that the septorhinoplasty caused the sinusitis, discussed above. Moreover, the STRs are silent as to any complaints, treatments, or diagnoses relating to sinusitis. To the extent that the Veteran attributed the symptoms he has experienced since service to sinusitis as opposed to the septorhinoplasty residuals, the issue of whether symptoms are attributed to a particular medical disorder is a complex medical question as to which lay evidence is not competent. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Board has also considered the Veteran's other statements concerning the etiology of his sinusitis. While the Veteran is competent to report his symptoms, the question of whether these symptoms were due to sinusitis or to the service connected septorhinoplasty, and more generally as to whether the Veteran has sinusitis caused or aggravated by the in-service rhinoplasty, relates to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, the Veteran's own assertions as to the etiology of his sinusitis are not competent. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for sinusitis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for sinusitis, to include as secondary to service-connected residuals of septorhinoplasty, is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs