Citation Nr: 1821607	
Decision Date: 04/11/18    Archive Date: 04/19/18

DOCKET NO.  14-24 891	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD.

2. Entitlement to service connection for sinusitis.

3. Entitlement to service connection for gastroesophageal reflux disease (GERD).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

G.C., Associate Counsel.


INTRODUCTION

The Veteran served on active duty from May 1994 to November 1994 and from November 1996 to November 2000. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In March 2016, the appeal was remanded by the Board for further development, to include VA examinations. The requested development was completed, and this matter is now properly before the Board.

The claim of entitlement to service connection for GERD is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, he has PTSD as a result of events he experienced while serving in Bosnia.

2. The Veteran's sinusitis clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service.


CONCLUSIONS OF LAW

1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

2. Sinusitis was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1111, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1).

There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In April 2001, February 2008, February 2011 and September 2012, the RO mailed the Veteran VCAA letters detailing the evidentiary requirements of a service connection claim, the evidence that the Veteran should send to VA, and VA's responsibilities to assist the Veteran. The Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).

The Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in June 2001, September 2010, June 2011, March 2012, August 2012, and May 2016 . Based on the examinations and the records, the VA medical examiners were able to provide adequate opinions, with regard to the Veteran's PTSD and sinusitis claims. However, further development, as explained in the remand section of this decision, is required in order to properly adjudicate the Veteran's service connection claim for GERD.


Service Connection - Laws and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Although medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology).

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 was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b) (2016). Only such conditions as are recorded in examination reports are considered as noted. Id. 

When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability both preexisted and was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also Horn v. Shinseki, 25 Vet. App. 231, 234 (2012).

A determination that a condition had its onset prior to service may be supported by contemporaneous evidence or recorded history in the record which provides a sufficient factual predicate to support a medical opinion (Miller v. West, 11 Vet. App. 345, 348 (1998)), or a later medical opinion based on statements made by a veteran about the preservice history of the condition (Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000)).

A preexisting injury or disease is considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the condition. See Wagner, 370 F.3d at 1096  (holding that when no preexisting condition noted on entry to service, government may show lack of aggravation by establishing that any increase was due to the natural progress of the preexisting condition). In addressing the aggravation prong of the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation, rather than the notion that the record contains insufficient evidence of aggravation. See Horn, 25 Vet. App. at 235. 

Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258  (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131  (2003).

Entitlement to service connection for PTSD

The Veteran contends he is entitled to service connection for PTSD due to a traumatic experience he had while deployed in Bosnia in August 1999. Specifically, he states that while driving in a convoy, his front gunner was shot in the shoulder, and children nearby threw a grenade (dud) into his vehicle. See July 2012 statement.

There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and, (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/V).

If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(1). See also 38 C.F.R. § 1154 (b) and 38 C.F.R. § 3.304 (d) (pertaining to combat Veterans). A finding that the Veteran engaged in combat with the enemy, however, requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999).

Effective July 13, 2010, 38 C.F.R. § 3.304 (f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304 (f)(3). The amendment provides that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. Id. "Fear of hostile military activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire.

The Board has reviewed the Veteran's service treatment records and personnel records, and finds that no indication of complaints, treatment or diagnosis of PTSD has been found. Further,  no evidence of combat, or of the claimed incident was found in personnel records.

The first post-service treatment note of record for PTSD is in May 2010, when VA Dr. A.O. referred the Veteran on suspicion that he might have PTSD due to complaints of flashbacks and nightmares. 

The Veteran was afforded a VA examination in September 2010. The Veteran confirmed the account regarding the attack on his convoy in Bosnia in 1991, when another soldier was shot in the arm, as well as the grenade which is contended to have landed in his vehicle without exploding. The Veteran also informed the examiner that after his separation, he experienced another traumatic event in Iraq, where he was working as a civilian truck driver, seeing IEDs and "guys blown off their trucks". The VA examiner confirmed the Veteran's diagnosis of PTSD, noting that he meets the DSM-IV criteria, and that his symptoms require continuous medication and are severe enough to interfere with occupational and social functioning.  Pertinently, the Veteran's reported in-service stressor was evaluated and medically assessed to meet the stressor criterion for a PTSD diagnosis. In fact, traumatic stress exposure was evaluated as high, and the examiner opined that the Veteran's current symptoms appear to be linked to the identified stressor. 
Indeed, the examiner opined, based on his evaluation of the Veteran, that the stressor is related to the Veteran's fear of hostile military activity. 

In June 2011, the Veteran was afforded another VA examination. While this examiner indicated he reviewed the Veteran's medical file, he also stated that the Veteran's claims file was not reviewed. The examiner opined that the Veteran did not have a diagnosis of PTSD, but rather, an "undifferentiated somatoform disorder." However, the examiner recognized that there are symptoms of PTSD, and pertinently suggested that further evidence of his in-service stressor may have resulted in a different opinion. Finally, the examiner opined that it is impossible for him to distinguish the contributors to the current mental health condition from the Veteran's tour in Bosnia from those in his post-service experience in Iraq.
A March 2012 addendum to the June 2011 opinion shows that the examiner reviewed the claims file. He repeated that there was no confirmation of the in-service stressor.

In May 2016, the Veteran was afforded his latest VA examination pursuant to a March 2016 Board remand for further development. The Veteran's entire electronic file was reviewed. The Veteran was assessed to meet all DSM-5 criteria to support a diagnosis of PTSD. In fact, the Veteran's PTSD was noted to be severe. The Veteran was noted to have three stressors adequate to support the PTSD diagnosis, including first and foremost, his claimed in-service stressor while in Bosnia. Pertinently, this stressor was medically assessed to be related to the Veteran's fear of hostile military or terrorist activity. Critically, the examiner opined that the Veteran's PTSD was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness, and specifically, the Veteran's in-service stressor. The examiner stated that his opinion is supported by the social/industrial history of the onset of the Veteran's symptoms, his current mental status and objective personality measured. 

The examiner also addressed the conflicting medical opinions of record. He opined that it is at least as likely as not that the first VA examination was correct in stating that the Veteran has enough symptoms for a diagnosis of PTSD. While he noted that the events reported by the Veteran in the first exam were slightly out of order, there were still sufficient symptoms to support a PTSD diagnosis. Also, the examiner stated that the second exam incorrectly reported the facts, and stated only two objections to the diagnosis of PTSD, both of which are rebutted by the Veteran. 

A review of the Veteran's VA treatment records reflects a diagnosis of, and treatment for, PTSD; and review of the lay statements of record reflects a consistent account of the Veteran's in-service stressor. 

In light of the foregoing, the evidence supporting the issue as to whether the Veteran has a current diagnosis of PTSD is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim. 

Furthermore, the Board notes that the reason the Veteran was denied entitlement to service connection for PTSD is the lack of a corroborated in-service stressor. See February 2017 SSOC. However, the Board finds that the Veteran's claimed stressor  is related to the Veteran's fear of hostile military activity, and multiple VA psychiatrists have confirmed that the claimed stressor is adequate to support a diagnosis of PTSD. See September 2010 and June 2016 VA examinations. Furthermore, the Board finds that the Veteran's accounts are credible and probative as they have been consistent throughout the record. Finally, the Board finds that there is absolutely no clear and convincing evidence to the contrary. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304 (f)(3).

The only "negative" evidence of record is the negative responses from the JSRRC, which indicated essentially in memorandum form that there was insufficient evidence found in their records to verify the Veteran's in-service stressor - and the June 2011 VA examination which reflects a negative opinion mainly due to the lack of a verified in-service stressor.

The inability of JSRRC to find sufficient evidence to corroborate the Veteran's stressor  is not in and of itself persuasive, in that no direct, positive evidence to establish a contrary account to that offered by the Veteran's is offered.

Therefore, the Board is of the opinion that the point of equipoise has been reached in this appeal. A majority of two out of the three VA examinations have found that he has met the DSM-IV/V criteria for PTSD, and contain opinions, supported by an adequate rationale, that the Veteran's current PTSD is related to his in-service stressor.

Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for PTSD is granted. The Veteran's in-service stressors have been corroborated by the lay and medical evidence of record. The Veteran has a PTSD diagnosis in accordance with DSM-IV/V criteria. Additionally, a nexus has been established between his in-service stressors and his PTSD diagnosis. Thus, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Entitlement to service connection for sinusitis


The Veteran claims entitlement to service connection for sinusitis. 

The Veteran's service medical records have been reviewed. A June 1993 report of medical evaluation for enlistment purposes shows a normal clinical evaluation of the sinuses.  In fact, in the associated report of medical history, the Veteran denied any health problems. A medical screening note in November 1994 reflects that the Veteran reported sinus problems, and was ordered on Tylenol and Sudafed. Another note from the same time indicates that the Veteran reported chest and nasal congestion. Upon entrance examination in October 1996, a history of sinusitis was noted, as well as medication for nasal congestion. It was further noted that the Veteran had bronchitis while in boot camp. In October 1997, the Veteran reported headaches, sinus congestion, runny nose and sinus drainage for the past week. A September 1998 treatment note reflects a diagnosis of maxillary sinusitis and upper respiratory infection, and an October 1998 note shows right maxillary sinusitis and bronchitis with a prescription of antibiotics and a decongestant. Another October 1998 note indicates a follow-up visit for bronchitis and a history of bronchitis and pneumonia. A further October 1998 service treatment record reflects an assessment of chronic sinusitis and bronchitis, also treated with antibiotics and nasal steroids.  A January 1999 letter from Dr. F. F., notes findings of edema and pallor of the nasal mucosa and post-nasal drip diagnosed as allergic rhinitis and probable sinusitis. The Veteran's October 2000 separation examination reflects a history of sinus issues. Specifically, the Veteran reported he has always had problems with his sinuses, but now it is frequent - and every year around the start of fall he gets sinusitis infections.

Post-service VA treatment records dated from 2001 to 2016 showed reports of allergies, chronic sinus issues, cough and congestion. 

In June 2001, the Veteran was afforded a general VA examination. The Veteran was noted to have a past medical history significant for chronic sinusitis for many years, chronic allergic rhinitis for many years, exercise-induced asthma since 1997, and chronic bronchitis since 1996. The examiner indicated that the Veteran was on an inhaler. On pulmonary examination, the Veteran reported chronic allergic rhinitis since he was a child, that his skin was tested by an allergist at the age of 10, and that he received chronic immunotherapy injections for at least four years thereafter. He reported stopping before entering the military, and that his chronic bronchitis or exercise-induced asthma were not a problem until he entered the military. The Veteran stated his breathing problems started when he was in Korea in 1996 due to the very cold winters, which in turn resulted in recurrent infections and bronchitis. No opinion as to the nature and etiology of the Veteran's condition was given. 

Dr. J.M. wrote a letter in February 2011 regarding the Veteran's claimed condition. He writes that the Veteran has had diagnosis and treatment of chronic bronchitis for several years, and that he feels the Veteran also has chronic sinusitis. The doctor opined that the Veteran's symptoms are compatible with chronic sinusitis, and that the chronic bronchitis is probably aggravated by his sinusitis problems. 

In June 2011, the Veteran was afforded another VA examination.  The date of onset of the claimed symptoms was noted as approximately 1991/1992, and the Veteran reported he has had sinus problems all his life beginning at the age of 14 or 15. While the Veteran could not recall any specific treatment, he stated his sinuses became worse in service. The examiner reviewed the Veteran's medical records. A diagnostic x-ray of the paranasal sinuses was reviewed, as was a more recent CT scan, and no evidence of inflammatory process or fluid accumulation was found. Pertinently, the examiner concluded that there was no evidence of sinusitis per the June 2011 CT scan. He opined that sinusitis was not caused by or a result of treatment he received from the military, based on the radiology of record finding that the Veteran does not have sinusitis. 

Pursuant to a March 2016 Board remand, the Veteran was afforded his most recent VA examination in May 2016. The examiner indicated that the entire claims file was reviewed and an in-person evaluation was conducted. The Veteran's diagnosis was confirmed as recurrent rhinosinusitis. The examiner noted in detail the Veteran's medical history associated with his claimed sinus condition, including enlistment examinations for both active duty periods. The examiner further noted the Veteran's own contentions during the examination, and namely, that he has had multiple sinus infections in the past year which he treated with antibiotics and nasal spray, and has one to two sinus-related headaches per month. 

Pertinently, the examiner opined that there is clear and undebatable evidence that the Veteran's sinus condition pre-existed service - and that there is clear and undebatable evidence that the condition did not increase in severity during the Veteran's active service. 

The examiner supported his opinion with a very extensive rationale. The examiner first refers to the October 1996 enlistment examination showing unequivocally that the Veteran had a sinus condition requiring treatment with medication. The examiner further analyzes that the entrance examination does not support the Veteran's account that sinus symptoms developed while wearing masks during military service. Furthermore, the examiner cites to the October 2000 separation examination, stating that the Veteran was on a single medication, did not require surgery or interventional procedures for the sinus condition to substantiate a significant increase in severity or aggravation beyond normal progression. Finally, the examiner essentially points to the lack of chronic changes to the Veteran's condition, based on radiological evidence, to support the conclusion that there was no aggravation beyond normal progression.    

The Board finds that service connection for sinusitis is not warranted. As an initial matter, the Board has determined that the presumption of soundness applies, as the Veteran's claimed sinusitis was not noted upon entry into active service in 1994. See 1993 entrance examination. As such, the Veteran is legally presumed to have been sound at entrance to his first period of active service. However, the Board notes that upon entry into his second, most lengthy period of active service in 1996, a medically-treated sinus condition was noted, and as such, the presumption of soundness does not apply for said period.

The Board further finds that the presumption of soundness at entry into the Veteran's first period of active service is rebutted by the evidence of record. Upon consideration of all of the evidence of record, the Board finds that clear and unmistakable evidence demonstrates that the Veteran's current sinusitis existed prior to service and that clear and unmistakable evidence demonstrates the pre-existing disability was not aggravated during service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). 

Clear and unmistakable evidence demonstrates that the Veteran's current sinusitis existed prior to service. First and foremost, the Veteran himself indicated on multiple occasions that his sinus condition predated service. Specifically, he stated during his separation examination in September 2000 that he had always had problems with his sinuses; and repeated the contention of having his sinus problems all his life beginning around the age of 14/15 during his June 2011 VA examination.  Further, during the general VA examination of June 2001, the Veteran specifically reported having had chronic sinusitis for many years, and having treated for chronic allergic rhinitis since he was a child with four years of immunotherapy injections - though the Board acknowledges his later statement that his chronic bronchitis or exercise-induced asthma began while he was in the military. Finally, the Board finds persuasive the 2016 VA examination which concludes unequivocally that the Veteran's sinus problems predated service. The examination is shown to have been based on a review of all medical records, including both entrance examinations, and the examiner found persuasive the Veteran's accounts as well as his treatment history for sinus problems, in support of the conclusion that they predate service.

The evidence of record also clearly and unmistakably reflects that the Veteran's pre-existing sinusitis was not aggravated during service. The only medical opinion of record addressing the question of aggravation is the VA examination of May 2016. As previously stated, the Board finds the 2016 VA examination to be the most probative evidence of record.  The examiner's rationale is persuasive - namely - that from entrance until separation from active service, the Veteran did not require surgery for his sinus condition, nor were any chronic changes to the condition shown on radiographic imaging. The Board acknowledges Dr. J.M.'s February 2011 opinion regarding aggravation. However, Dr. J.M. only opined that the Veteran's sinusitis aggravated his bronchitis, which is already service-connected., rather than any service-connected condition aggravating the Veteran's sinusitis. The May 2016 VA examiner provided affirmative evidence by establishing that any increase in the Veteran's sinusitis during service was due to the natural progress of the pre-existing disability, rather than any military service. 

The Veteran's statements that his claimed disorder was aggravated during service are not competent evidence. Although lay persons are competent to provide opinions on some medical issues and observable symptomatology, whether a preexisting disorder was or was not aggravated falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the VA examiner considered the lay assertions of record when providing the aforementioned VA medical opinion in May 2016.

Therefore, the criteria to establish entitlement to service connection for sinusitis have not been met, either through medical or probative lay evidence. The Board concludes that the presumption of soundness has been rebutted because there is affirmative evidence that the Veteran's sinusitis clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service. Thus, service connection for sinusitis must be denied.


ORDER

Entitlement to service connection for PTSD is granted.

Entitlement to service connection for sinusitis is denied.


REMAND


The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that a remand is again warranted under Stegall.

In March 2016, the Board remanded this claim and directed that the Veteran undergo a VA examination for the purpose of determining the nature and etiology of his claimed GERD. In May 2016, the Veteran was afforded a VA examination. The examiner did review the evidence of record, but failed to acknowledge it appropriately. Specifically, the examiner stated that in June 2001, the Veteran was afforded a VA examination reflecting a history of intermittent GERD since 1995, without assessment for a diagnosis of the condition. However, the June 2001 VA examination did in fact include a diagnosis of GERD since 1995, and there is no indication in the VA examination that this diagnosis was noted based only on the Veteran's account. In fact, the examiner ordered bloodwork and laboratory testing is associated with the examination, showing abnormal creatinine and hemoglobin levels.

Furthermore, the Board notes that the May 2016 VA opinion contains contradicting conclusions. On the one hand, the examiner opines that there is no clear and undebatable evidence that the Veteran's GI disability existed prior to active military service, and on the other, states that there is clear and undebatable evidence that the "GERD condition pre-exist active military duty." This was likely a typographical error, but requires clarification.

In addition, the examiner states that there is no evidence of gastro intestinal complaints in service treatment records. However, an October 1999 Aeromedical Evacuation Medication record contains a prescription for Colace, direct evidence that the Veteran had gastrointestinal troubles in service. Also in October 1999, an in-service nutritional consultation reflects that the Veteran was placed on a high-fiber diet, and that he was tolerating it well. Finally, in April 1997, the Veteran was also prescribed Phenergan to treat his reported nausea and vomiting, and was also recommended to use pepto bismol in the case of persisting symptoms.

For the above reasons, the Board finds that there was not substantial compliance with the Board's remand directives. Stegall, 11 Vet. App at 271. Therefore, on remand, the AOJ should obtain an additional medical opinion addressing the aforementioned deficiencies. 

Accordingly, the case is REMANDED for the following action:

1. Obtain an addendum medical opinion from a qualified medical professional to determine the nature and etiology of the Veteran's GERD. The entire claims file, to include a copy of this remand, as well as the March 2016 remand and the May 2016 VA examination report, must be made available to and be reviewed by the examiner. 

2. Based on a thorough review of the claims file and an examination of the Veteran (if needed), the examiner must provide an opinion regarding the nature and etiology of the Veteran's current GERD.

(a) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's GERD is etiologically related to service, aggravated by service, or was manifest within one year of service discharge. 

(b) In formulating the above opinions, the examiner must consider the 2001 diagnosis of GERD, as well as the evidence contained in the service treatment records regarding the Veteran's gastrointestinal complaints. Furthermore, the examiner is asked to reconcile the conflicting conclusions of the May 2016 VA examination opinion. 

(c) The Board encourages the examiner to consider any additional medical evidence of record, including any current VA or private treatment for gastrointestinal complaints.

A complete rationale for each opinion offered should be provided.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

To help avoid future remand, the AOJ must ensure that all requested action has been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 271.

3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the first paragraph of this remand, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).



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KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs