Citation Nr: 20046437 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 09-25 955 DATE: July 10, 2020 ORDER Service connection for a chronic sinus disorder is granted. (The issue of entitlement to service connection for left-sided neuropathy (claimed as chronic neurological pain and numbness of the neck, left shoulder, and left lower extremity), to include as due to in-service chemical exposure, is addressed in a separate appellate decision.) FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, he has a current chronic sinus disorder which is at least as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for a chronic sinus disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the National Guard from June 1981 to June 1987, and from February 1991 to March 1994. His service included active duty for training (ACDUTRA) from September 3, 1981, to April 9, 1982; from April 25, 1991, to August 9, 1991; from August 13, 1991, to September 30, 1991; and from March 11, 1992, to March 20, 1992. He is service-connected for disabilities associated with these periods, which makes him a Veteran. 38 U.S.C. § 101 (2), (22), (23), (24); 38 C.F.R. § 3.1 (d), 3.6(a). The Veteran’s service also included periods of inactive duty training (INACDUTRA). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service connection for sinus problems was denied therein. In a September 2011 decision, the Board denied service connection for sinus problems. The Veteran filed a Motion for Reconsideration in November 2011. This motion was granted by the Board in March 2012. As such, the Veteran was notified that this matter would be reconsidered by a panel of no less than three Veterans Law Judges (VLJs). 38 U.S.C. § 7103(b). He further was notified that the reconsideration decision, once promulgated, would replace the September 2011 decision and constitute the final Board decision in this matter. In March 2011, the Veteran testified at a hearing conducted at the RO before a VLJ who has since retired. The VLJ who conducts a hearing on an appeal must participate in any decision made on it. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. The Board accordingly remanded this matter for a new hearing in October 2012. It was conducted later that same month by two VLJs at the RO in light of the aforementioned reconsideration. An opportunity for a hearing before each VLJ of the panel must be provided. Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran was offered the opportunity to testify at a hearing before a third VLJ, but he declined in May 2013. The three VLJ panel of the Board remanded this matter for additional development in August 2013. Upon being returned prematurely, another remand for the same additional development was issued by this Board panel in August 2014, and then again in December 2017. This current decision represents reconsideration of the Board’s September 2011 denial of this claim and constitutes a final decision on this matter. Service Connection—Sinus Condition Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Active service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran’s medical treatment records show that he has a current diagnosis of allergic rhinitis, rendered in 2009. Thus, the current disability prong of this claim for service connection has been met. Further, as detailed below, the Veteran has consistently reported that his sinus symptoms, which began in service, have continued since that time. The Veteran submitted a written statement in support of his claim in January 2008. Therein, he wrote that, while performing his duties during active service periods, he was exposed to chemicals. During service, he also began having sinus problems. His symptoms had become more frequent and severe since that time, and he believed they were caused by his in-service chemical exposures. The Veteran filed a notice of disagreement in October 2008. Therein, he stated that his sinus condition was chronic and recurring, and that his symptoms began while he was in active service. The Veteran testified before the Board in March 2011 that his sinus symptoms began around 1991 when he was training at Chanute Air Force Base. He further testified that he did not experience the claimed chronic sinus symptoms prior to 1991, and that he continued to experience sinus congestion and drainage since that time. The Veteran testified again before the Board in October 2012 regarding his sinus condition. He again reported that he first experienced his sinus symptoms while serving in 1991 and that they have persisted since that time. The Veteran also reported the same symptomatology onset to VA sinus conditions examiners in May 2016 and in October 2018. The Board acknowledges that the May 2016 and October 2018 VA examiners found that the Veteran’s claimed sinus condition was less likely than not incurred in, or caused by, his active service. However, the October 2018 VA examiner based this opinion on the lack of the Veteran having been diagnosed with a chronic sinus condition in service. The May 2016 VA examiner, who also rendered a July 2016 VA addendum opinion, opined against service connection because the Veteran was asymptomatic on examination, and because his allergic rhinitis was not related to his in-service chemical exposure. Neither examiner considered the Veteran’s lay statements nor rendered an opinion as to whether the condition was onset in service as the Veteran has contended. As such, they are not probative opinions regarding the onset of the Veteran’s chronic sinus condition symptoms, and the Board affords them less probative value than the Veteran’s statements regarding the onset of his chronic sinus symptoms, as he is competent to report that which he has observed through his senses. Layno, 6 Vet. App. at 470. Thus, the weight of the evidence supports a finding that the Veteran’s sinus condition began in service, specifically during a period of ACDUTRA in the early 1990s. He is competent to report what he has experienced through his senses, and the Board has no reason to question the credibility of his reports regarding the timeline of the onset of his symptoms. Affording the benefit of the doubt to the Veteran, the Board finds that he has been experiencing symptoms of a sinus condition since service. Thus, service connection for his chronic sinus condition is warranted, as it is a current disability that onset during his active service. The Board also acknowledges the Veteran claimed that his chronic sinus condition resulted from in-service chemical exposures. However, because the Board is granting the claim based on continuity of symptomatology, no further discussion is necessary with respect to this contention. THOMAS H. O’SHAY Veterans Law Judge Board of Veterans’ Appeals MICHAEL J. SKALTSOUNIS Veterans Law Judge Board of Veterans’ Appeals THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.