Citation Nr: 20006350 Decision Date: 01/27/20 Archive Date: 01/24/20 DOCKET NO. 18-15 471 DATE: January 27, 2020 ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for bronchitis is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a compensable evaluation for service-connected bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence indicates the Veteran’s sinusitis was not incurred during or as a result of his active service. 2. The preponderance of the evidence indicates the Veteran’s bronchitis was not incurred during or as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis (or comparable sinus disability) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bronchitis (or comparable respiratory disability) 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 had active military service from July 1991 to June 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a VA Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 1. Entitlement to service connection for sinusitis The Veteran asserts that he suffers from sinusitis as a result of active service. The Veteran’s service treatment records (STRs) reflect treatment for rhinitis with tender sinuses, congestion, cough, sore throat, and other symptoms in June 1995, however during the separation medical examination in May 1996, the Veteran was negative for any sinus or respiratory complaints or conditions. In the Veteran’s May 1996 Report of Medical History, the Veteran reported having suffered from frequent colds, sinusitis, and ear, nose, or throat trouble. The Veteran’s post-service VA and private treatment records are negative for complaints, treatment, or diagnosis of sinusitis in the 12-month period immediately following discharge from service. Additionally, no medical opinion ties any instance of sinusitis to the Veteran’s active service or suggests chronicity of a condition since service. VA treatment records reflect treatment for chronic sinusitis as early as July 2001. During the Veteran’s April 2012 VA examination for sinusitis, rhinitis, and other diseases of the nose and throat, the VA examiner found that the Veteran suffered from possible sinusitis and rhinitis due to the Veteran’s tobacco use. In a September 2012 addendum opinion, the examiner opined that, based on a July 2012 CT scan of the Veteran’s sinuses, there was no evidence to support a diagnosis of sinusitis. Based on this, there was no evidence that the Veteran currently suffered from sinusitis, and therefore, it was less likely than not that the diagnosis of sinusitis incurred during or as a result of the Veteran’s active service. The examiner opined that the current diagnosis of rhinitis due to tobacco and other irritants was at least as likely as not the current diagnosis. Additionally, the examiner found that it was less likely than not that the Veteran’s rhinitis was due to service as there was lack of chronicity in the over 20 years since the Veteran left service. During the Veteran’s February 2018 VA examination for respiratory conditions, the examiner found that the Veteran was negative for sinusitis and bronchitis. The Veteran asserts that he was diagnosed with sinusitis while at boot camp and that he currently suffers from this condition due to his active service. See October 2014 Notice of Disagreement (NOD); March 2018 Form 9. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the April 2012 and February 2018 VA examination opinions and medical evidence of record. The Board notes that while the Veteran’s STRs do not clearly document diagnosis or treatment for sinusitis during the period asserted by the Veteran, this is not definitive proof that such diagnosis was not rendered. However, such condition was also not noted in the Veteran’s separation medical examination, which indicates that even if such condition had been diagnosed, it had resolved by the time the Veteran left service. In the September 2012 addendum opinion, the VA examiner reported that the Veteran had acute sinusitis during service with no evidence of chronicity. No medical opinion or evidence of record suggests that the Veteran’s sinusitis was chronic since service or was at least as likely as not due to the Veteran’s active service. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Accordingly, the claim for service connection for sinusitis is denied. In reaching the above conclusions, 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 this appeal. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for bronchitis The Veteran asserts that he suffers from bronchitis as a result of active service. The Veteran’s STRs reflect treatment for rhinitis with congestion, cough, sore throat, and other symptoms in June 1995, however during the separation medical examination in May 1996, the Veteran was negative for any sinus or respiratory complaints or conditions. The Veteran’s post-service VA and private treatment records are negative for complaints, treatment, or diagnosis of bronchitis in the 12-month period immediately following discharge from service. Additionally, no medical opinion ties any instance of bronchitis to the Veteran’s active service or suggests chronicity of a condition since service. During the Veteran’s February 2018 VA examination for respiratory conditions, the examiner found that the Veteran was negative for bronchitis. The Veteran reported having bronchitis one to two times yearly for past years. The VA examiner opined that the Veteran’s in-service condition was most likely acute, and there was no chronicity of care, therefore the condition was less likely than not to have occurred during or as a result of the Veteran’s active service. The Veteran asserts that he was diagnosed with bronchitis while at boot camp and that he currently suffers from this condition due to his active service. See October 2014 NOD; March 2018 Form 9. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau, 492 F.3d at 1377. His lay contentions are thus of markedly lower probative value than, and are outweighed by, the February 2018 VA examination opinion and medical evidence of record. The Board notes that while the Veteran’s STRs do not clearly document diagnosis or treatment for bronchitis during the period asserted by the Veteran, this is not definitive proof that such diagnosis was not rendered. However, such condition was also not noted in the Veteran’s separation medical examination, which indicates that even if such condition had been diagnosed, it had resolved by the time the Veteran left service. No medical opinion or evidence of record suggests that the Veteran’s bronchitis was chronic since service or was at least as likely as not due to the Veteran’s active service. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Accordingly, the claim for service connection for bronchitis is denied. In reaching the above conclusions, 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 this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran asserts that he suffers from hypertension as a result of his active service. The Veteran has a current diagnosis for hypertension. See November 2017 VA treatment records. The Veteran is service-connected for major depressive disorder with somatic symptom disorder, depressive disorder, and posttraumatic stress disorder (PTSD). The Veteran has not been afforded a VA examination to determine the nature and etiology of his hypertension, including whether the condition was caused or aggravated by his psychiatric disabilities. Accordingly, this claim must be remanded for a VA examination. 2. Entitlement to a compensable evaluation for service-connected bilateral hearing loss is remanded. The Veteran asserts that his service-connected hearing loss is more severe than is reflected by his current zero percent evaluation. The Veteran’s last VA examination for hearing loss was in September 2017. The Board finds this examination too remote in time to serve as current evidence of the severity of the Veteran’s hearing loss. Accordingly, this claim must be remanded for a new VA examination. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed hypertension. The claims file must be reviewed by the examiner. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran’s documented medical history and assertions. After reviewing the entire record, the examiner should provide an opinion with supporting explanations as to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current hypertension arose during or as a result of his active service? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current hypertension was caused or aggravated (worsened beyond its natural progression) by his service-connected major depressive disorder with somatic symptom disorder, depressive disorder, and PTSD? If aggravation of any hypertension by a service-connected psychiatric disability is shown, the examiner should objectively quantify, to the extent possible, the degree of aggravation beyond the level of impairment had no aggravation occurred. A complete rationale must be provided for all opinions. 3. Afford the Veteran a VA examination with an appropriate examiner, to determine the current severity of the Veteran’s bilateral hearing loss. The claims file and a copy of this remand must be made available for review. All appropriate testing and studies should be conducted to determine the severity of the Veteran’s bilateral hearing loss. A clear rationale must be provided for all opinions expressed. The examiner must consider the Veteran’s lay statements. If the examiner is unable to provide an opinion without resorting to mere speculation then the examiner must state this and provide any information needed to make an opinion, if possible. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, Associate 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.