Citation Nr: 1807759	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  11-34 337	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for sinusitis, to include as due to chemical exposures while serving in the Persian Gulf.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Koria B. Stanton, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1983 to April 1987, and from November 1988 to February 1997. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In June 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.  The Board previously remanded the matter for additional development in October 2015 and June 2017, and the case now returns for further appellate review.  

The Board observes that, subsequent to the Agency of Original Jurisdiction's (AOJ's) most recent adjudication of the Veteran's claim in the October 2017 supplemental statement of the case, his representative submitted additional evidence in December 2017.  Prior to such submission, in October 2017, the Veteran, through his representative, submitted a waiver of the 30-day waiting period prior to the return of his case to the Board and indicated that, if any additional evidence was submitted at a later time, he waived initial review by the AOJ.  38 C.F.R. 
§ 20.1304(c) (2017).  Therefore, the Board may properly consider such newly received evidence.


FINDINGS OF FACT

1.  The Veteran's sinus complaints have been attributed to a known clinical diagnosis of sinusitis.  

2.  Sinusitis is not shown to be causally or etiologically related to any disease, injury, or incident during service.


CONCLUSION OF LAW

The criteria for service connection for sinusitis have not been met.  38 U.S.C.        §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions 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); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist.  See Scott, supra (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 duty to assist argument).

II.  Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Additionally, where a veteran has served 90 days or more of active service during a war period or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In the instant case, sinusitis is not considered a chronic disease pursuant to VA regulations and, as such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted.

However, service connection may also be established for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that manifests either during active service in the Southwest Asia Theater during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examinations, or laboratory tests.  38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1).  In the instant case, the record reflects that the Veteran had service in Southwest Asia during the Persian Gulf; however, his sinus complaints have been attributed to a known clinical diagnosis of sinusitis, and therefore, 38 U.S.C. §1117 and 38 C.F.R. § 3.317 are inapplicable to his claim.  
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

The Veteran is seeking service connection for sinusitis.  Specifically, during his June 2015 Board hearing, he testified that, following a ground invasion of Iraq in approximately 1991, he woke up with blisters on his face.  Subsequently, he went to the hospital and the blisters were cut off.  He explained that he believed a mustard agent he was exposed to while in Iraq caused the blisters to form.  The Veteran further testified that, within 30 days of the removal of his blisters, he began to suffer continuously from small colds, during which he would experience nasal dripping.  Additionally, the Veteran reported that he complained about his symptoms in 1994 during a physical, noticed his equilibrium began to falter while in service, and was currently using a nasal spray for his sinus issues that had continued following his discharge from service.   

As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has a current diagnosis of sinusitis.  Specifically, since September 2003, post-service treatment records reflect a diagnosis of such disorder, and such diagnosis was confirmed in connection with the August 2015 VA examination.  Thus, the remaining question is whether the Veteran's sinusitis is related to his military service. 

The Veteran's service treatment records (STRs), which include his November 1982 Report of Medical Examination that was completed at the time of enlistment, reflects that clinical evaluation of his sinuses was normal.  The examination report contains sections for reporting significant or interval history and a summary of defects and diagnoses, which contains no relevant remarks.  The accompanying Report of Medical History contains the Veteran's report that he never had or was experiencing sinusitis; however, he did indicate nose trouble.  Here, the examiner noted that the Veteran suffered a broken nose, which was repaired in 1981.  A July 1985 STR indicates the Veteran's complaint of a sore throat for two days.  Additionally, the Veteran's March 1987 Report of Medical Examination reflects that clinical evaluation of his sinuses were normal.  Such record further reflects that clinical evaluation of the Veteran's nose was abnormal; here, the examiner indicated that the Veteran experienced a deviated nasal septum.  The examination report contains sections for reporting significant or interval history and a summary of defects and diagnoses, which contains no relevant remarks.  The accompanying Report of Medical History contains the Veteran's report that he never had or was experiencing sinusitis; however, he did indicate ear, nose, or throat trouble.  In this regard, the examiner noted that the Veteran had a broken nose in 1981.  

A June 1991 STR reveals an impression of radiographic findings suggesting prior left maxillary sinus disease.  An October 1994 Report of Medical History indicates that the Veteran's report ear, nose, and throat trouble; and chronic or frequent colds.  Here, the Veteran explained that he had a broken nose which caused him difficulty to breath, which was corrected through an operation, and easily caught colds that lasted a long time.  Furthermore, the Veteran's August 1996 Report of Medical Examination that was completed in anticipation of his retirement, reflect that clinical evaluation was normal in regard to his sinuses and nose.  The examination report contains sections for reporting significant or interval history and a summary of defects and diagnoses, which contains no relevant remarks.  The accompanying Report of Medical History contains the Veteran's report that he never had or was experiencing sinusitis; however, he did indicate ear, nose, or throat trouble; here, the Veteran indicated that the while in service, he had an operation on his nose to help improve his breathing.  

Post-service private treatment records dated in September 2003, October 2003, November 2003, January 2004,  and April 2007; and VA treatment records dated in July 2008 and November 2009 indicate a diagnosis of chronic sinusitis.  Additionally, private treatment records dated in August 2014, December 2015, and January 2016 reveal that he was continuously treated for sinus infection.  The January 2016 private treatment record included the procedure code "[c]hronic condition management" in reference to the diagnosed sinus infection.  Similarly, more recent private treatment records reflect ongoing care for acute sinusitis/sinus infection/sinus headache.  

In the October 2015 remand, the Board noted that an August 2015 VA examiner found that the Veteran had acute sinusitis, which was resolved, and opined that such disorder was not a part of an unexplained or partially explained chronic multi-system illness and was not presumptive of Gulf War environmental hazards.  The examiner further found that the Veteran's sinus condition was less likely as not related to a specific exposure event during service.  However, the Board found that further examination was warranted as the Veteran was found to chronic sinusitis as documented by other evidence of record, and the examiner did not consider his allegation that his sinus condition is the result of small colds he had in service, blisters in his nose that were removed while in service, and/or his exposure to breeched minefields, sand, and smoke from oil fires in Southwest Asia.

Thereafter, the Veteran was afforded a VA examination in January 2016, at which time traumatic deviated nasal septum, resolved without residuals post-septorhinoplasty, was diagnosed.  However, the examiner specifically found no diagnosis of sinusitis on examination or on imaging as documented in an October 2013 VA treatment record.  He further indicated that the mucous retention cyst in the maxillary sinus on the right side noted in a December 2009 private treatment record was an incidental finding, and such was currently asymptomatic.  Additionally, the examiner determined that the Veteran's deviated nasal septum was now resolved with no residuals.  Further, he found that the weight of peer-reviewed medical literature was against a relationship between the Veteran's claimed condition and his military service, to include documented colds in service; the removal of blisters in the Veteran's nose; and exposure to minefields, smoke, and sand in the Persian Gulf. 

However, as the Board explained in its June 2017 remand, the non-documentation of acute or chronic sinusitis as described by the January 2016 VA examiner was not consistent with the evidence of record.  Specifically, the Board noted that the aforementioned private and VA treatment records reflected a diagnosis of chronic sinusitis.  The Board further noted that the August 2015 VA examiner found that, during the appeal period, there had been a diagnosis of acute sinusitis, which had resolved, and following the January 2016 VA examination, the Veteran had submitted aforementioned private treatment records dated in August 2014, December 2015, and January 2016, which revealed that he was continuously treated for sinus infections.  Accordingly, the Board remanded for an addendum opinion, which was rendered in July 2017 by the same VA examiner.   

In July 2017, following a review of the record, including the Veteran's lay statements, STRs, and post-service treatment records, the VA examiner determined that the Veteran's sinusitis was less likely than not incurred or caused by his service.  As rationale for the opinion, the examiner reported that, although the Veteran's STRs showed, and the Veteran reported, transient colds in service; the removal of blisters in his nose; and exposure to minefields, smoke, and sand in the Persian Gulf, the weight of peer-reviewed medical literature was against a relationship (cause, effect, or aggravation, if any) between the Veteran's sinusitis and the above-mentioned events.  

The Board finds that the July 2017 VA examiner's opinion is entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  There is no contrary medical opinion of record. 

The Board has also considered the Veteran's assertions that his sinusitis had its onset during service; however, such determination is a complex medical matter requiring training and experience which he does not possess.  In this regard, the Veteran is not shown to have any medical training that would qualify him to provide an opinion regarding the onset or etiology of sinusitis.  Here, the question regarding the onset, development, and/or etiology of sinusitis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of sinusitis, such falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Accordingly, the Veteran's opinion as to the onset and etiology of his sinusitis is not competent evidence and, consequently, is afforded no probative weight.

In summary, the Board finds that the Veteran's sinusitis is not shown to be causally or etiologically related to any disease, injury, or incident during service.  Consequently, service connection for sinusitis is not warranted.  In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Service connection for sinusitis is denied.  



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs