Citation Nr: 19136271 Decision Date: 05/10/19 Archive Date: 05/09/19 DOCKET NO. 17-06 663 DATE: May 10, 2019 ORDER Entitlement to service connection for chronic sinus disease is denied. REMANDED Entitlement to service connection for a low back disorder, diagnosed as lumbar degenerative disc disease (DDD), is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that chronic sinus disease began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for chronic sinus disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to March 1979. This matter comes before the Board of Veterans Appeal (hereinafter Board) on appeal from a March 2013 rating decision. The Board notes that the Statement of the Case combined the Veteran’s service connection claims for a sinus disorder and headaches. However, the Board finds these are separate claims with possibly separate etiologies, and should be treated as such. Service Connection 1. Sinusitis The Veteran asserts he has a chronic sinus disorder incurred during active service. Alternatively, the Veteran’s asserted his chronic sinus disorder is due to fume and chemical exposures in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of chronic maxillary sinus disease, the preponderance of the evidence weighs against finding that it began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with chronic maxillary sinus disease until September 2013, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of sinus problems since service, these statements are inconsistent with previous statements made by the Veteran. In an March 1979 separation medical history report, the Veteran denied a history of sinusitis. In a March 2004 VA treatment record, the Veteran denied any ear, nose, or throat problems as well as any respiratory complaints. In a May 2009 note, the Veteran reported his sinuses feel clogged since he got dentures 5 years ago. The record contains conflicting medical opinions regarding whether the Veteran’s chronic maxillary sinus disease is at least as likely as not related to an in-service injury, event, or disease, including fuel and chemical exposures. A December 2016 VA examiner opined that the Veteran’s chronic maxillary sinus disease is not at least as likely as not related to an in-service injury, event, or disease, including exposure to fume exposure. The examiner noted that although one imaging study in September 2013 showed mucosal thickening (not sinusitis) of the right maxillary sinus, this was a localized process rather than being a diffuse involvement of the sinuses. Had there been a causal relationship with military service fume exposure, the Veteran would have evidence of a clinical history of sinus problems and diffuse sinus involvement. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner, M. E., R.N., opined that it was. In a January 2017 letter, the nurse stated there is a direct correlation linking his sinusitis to his exposure to toxic fumes during his time working as an aircraft pneudraulic repairer. This opinion is, however, less probative than the VA examiner’s opinion. M. E., R.N., stated indicated she reviewed the Veteran’s medical records, but did not give any rationale for her opinion. The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Consequently, the Board gives more probative weight to the December 2016 VA examiner’s opinion. The Veteran and his wife believe his sinus disorder is related to an in-service injury, event, or disease. The Veteran and his wife are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran and his wife in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In light of the foregoing, the Board finds that service connection for chronic maxillary sinus disease is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Low Back Disorder The Veteran asserts he has a back disorder which was incurred during active service. Service treatment records (STRs) show the Veteran injured his back while diving; the diagnosis was muscle strain. The Veteran, however, denied recurrent back pain upon separation. He underwent a VA examination in December 2012. The examiner opined the Veteran’s lumbar degenerative disc disease was diagnosed decades after separation from service and is consistent with aging. The Veteran supplied a January 2017 opinion by M. E., R.N., a director of nursing for an in-home health care company. She opined the Veteran’s lumbar DDD is consistent with lifting heavy aircraft parts. The VA examiner failed to specifically address the Veteran’s in-service injury or complaints of back pain “forever” in his rationale. The private nurse failed to address the Veteran’s delay in treatment for nearly 40 years. Finally, either opinion addressed the Veteran’s physically demanding job of residential house painting. As such, the Board finds an additional opinion is necessary. 2. Headaches The Veteran asserts he has headaches which were incurred during active service, or due to fume exposure in service. STRs include a complaint of upper respiratory infection and sinus headache in April 1978. The Veteran also complained of a headache in November 1977; however, the examiner noted it was a common symptom of the flu shot. The Veteran denied frequent headaches upon separation. The Veteran also denied headaches in a March 2004 VA progress note. The Veteran underwent a VA examination in December 2012. The examiner indicated the etiology of the Veteran’s cephalgia was uncertain. An additional VA opinion was obtained in December 2016. The examiner noted there was no evidence the Veteran has an established diagnosis of headaches which is currently being addressed; therefore, there can be no association with fume exposure. In a January 2017 letter, M. E., R.N., stated there is a direct correlation between the Veteran’s chronic headaches and his exposure to toxic fumes in service. The VA treatment records show the Veteran has a current diagnosis of chronic headaches. As such, a new VA examination is necessary to determine the nature and etiology of the Veteran’s headaches. 3. OSA The Veteran asserts his OSA is secondary to jet fuel and other chemical exposures in service. A VA opinion was obtained in December 2016. The examiner opined the Veteran's diagnosis of OSA with snoring is less likely than not (less than 50 percent) incurred in or caused by exposure to aircraft, fuel, and solvent fumes during service. The examiner noted that mention has been made of the veteran’s exposure to aircraft, fuel, and solvent fumes during the service and that of sleep apnea. However, the Veteran also had the risk factors of his advancing age, male sex, hypertension, a somewhat narrowed airway, and his tobacco consumption which also would have predisposed him to the development of obstructive sleep apnea either alone or in concert. The Board finds this VA opinion to be unclear as to the etiology of the Veteran’s OSA and finds an additional VA opinion is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s lumbar DDD is at least as likely as not related to an in-service back injury and/or his job duties in service. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic headache disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to jet fuel or other chemical exposures. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the OSA is at least as likely as not related to exposure to jet fuel or other chemical exposures in service. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.