Citation Nr: 21004735 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-37 541 DATE: January 28, 2021 ORDER Entitlement to service connection for sinusitis is denied. REMANDED Entitlement to service connection for a bilateral hand disability is remanded. Entitlement to service connection for right hand pain at digits is remanded. FINDING OF FACT The Veteran does not have a current diagnosis for sinusitis. CONCLUSION OF LAW The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1999 to May 2000, December 2003 to March 2005, January 2011 to February 2012, and from May 2016 to May 2017. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. This matter was previously before the Board in July 2018 and was remanded for further development. While on remand, a November 2019 rating decision granted service connection for a psychiatric disorder and GERD which were initially included in the appeal; however, as the benefits sought have been granted, these claims are no longer before the Board. The remaining matters have been returned to the Board for further adjudication. Service Connection 1. Entitlement to service connection for sinusitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (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, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever 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 Veteran. 38 U.S.C. § 5107 (b). With regard to the merits of the Veteran’s claim, the Board has reviewed the evidence of record and finds that service connection is not warranted since the Veteran does not have a current sinus disability. Service treatment records (STRs) show that the Veteran was diagnosed with sinusitis while in service; however, post-service records do not show evidence of a current diagnosis. The Board notes that the Veteran has received several VA examinations to determine the nature and etiology of his asserted sinus condition. Specifically, VA examinations were obtained in March 2012, October 2015, August 2017, and June 2019 in which no symptoms or diagnosis for sinusitis was found. Rather, the Veteran was diagnosed with allergic rhinitis in each of the examinations for which he has been service-connected. In his June 2019 examination, the Veteran reported that he was treated once for sinusitis; however, his symptoms resolved. He reported having occasional nasal congestion currently. In his hearing, the Veteran also reported having symptoms of congestion and that he self-medicates with Tylenol Flu; however, he also testified that none of his doctors have diagnosed him with sinusitis. With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, as the Veteran’s post-service treatment records, VA examinations, and the Veteran’s own statements confirm that he has no current diagnosis for sinusitis, service connection cannot be granted. Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hand disability. 2. Entitlement to service connection for right hand pain at digits. In his June 2019 VA hand/finger examination, the Veteran was diagnosed with bilateral hand strain; however, the examiner found that the condition was not related to service. The examiner explained that while service records showed complaints of finger pain, his service records did not show any ongoing treatment for his hand symptoms, and his 2011 Gulf War examination did not show any objective evidence of a hand condition; therefore, the records did not demonstrate chronicity of his hand pain. The Board finds this opinion inadequate as the non-documentation of chronicity of care and/or treatment is an insufficient rationale to support a negative opinion. Rather, the question for consideration is whether the Veteran exhibited continuity of symptoms. See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (symptoms, not treatment, are the essence of any evidence of continuity of symptomatology). Here, STRs show a diagnosis of joint pain in the fingers/wrist. Post-service records show the Veteran reported joint pain in his hands and fingers in his March 2012 Gulf War examination. Additionally, in his June 2019 hand and finger examination, the Veteran reported aching pain in the PIP and MCP joints of both hands with finger movements and gripping. He also reported having difficulty shooting his weapon repetitively, difficulty with opening jars, prolonged typing, and opening containers repetitively. Given the inadequate opinion, a new examination and opinion is warranted to determine the etiology of the Veteran’s hand/finger disabilities. The Board also notes that the Veteran is service connected for a right wrist disability. Therefore, an opinion regarding secondary service connection should be obtained to determine if there is a relationship between his right wrist and right hand/finger pain. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any diagnosed bilateral hand disability, or right finger disability. The examiner must review the entire claims folder. Any indicated tests or studies should be performed. The examiner should do the following: a) First, determine if the Veteran has a right finger disability, to include pain with functional impairment. b) Provide an opinion as to whether it is at least as likely as not (fifty percent or greater probability) that the Veteran’s diagnosed bilateral hand strain was incurred in, or is otherwise related to the Veteran’s service, OR whether the bilateral hand disability was proximately caused or aggravated by his service-connected right wrist disability. c) If the Veteran has a right finger disability, provide an opinion as to whether it is at least as likely as not (fifty percent or greater probability) that the identified right finger disability was incurred in, or is otherwise related to the Veteran’s service, OR whether any identified right finger disability was proximately caused or aggravated by his service-connected right wrist disability. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, and all other lay evidence of record, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. After the above is completed, the claims should be re-adjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.