Citation Nr: 21005188 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-34 229A DATE: January 29, 2021 ORDER Entitlement to service connection for chronic sinus condition with headaches is denied. FINDING OF FACT The most probative evidence of record is against a finding that the Veteran’s chronic sinusitis had its onset during service or is otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic sinus condition with headaches have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.307, 3.309(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1986 to December 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a hearing at the Board’s office in Washington, DC, before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the record. This case was previously before the Board in June 2020, when the issues on appeal were remanded for additional evidentiary development. The June 2020 Board remand directed the AOJ to obtain private treatment records identified by the Veteran. No duty to assist letter was sent to the Veteran to provide additional details for his private treatment. However, the Veteran was contacted via telephone in October 2020 to identify his private records and he indicated that he does not have any records to obtain and requested that VA proceed with his claim. See October 2020 Report of General Information. Therefore, the Board finds that the June 2020 remand directives were substantially complied with. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. Entitlement to service connection for chronic sinus condition with headaches Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Where the veteran asserts entitlement to a chronic disease, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, if the chronic disease is listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303 (b), service connection may be based upon a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303 (a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303 (d). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Then, the Board must determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). After review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for sinusitis. The Veteran’s September 2020 VA examination shows a diagnosis of chronic sinusitis and allergic rhinitis. Therefore, a current disability is shown. The Veteran alleges that he had symptoms of sinusitis in service. Specifically, the Veteran contends that his sinusitis started in 1988 when he couldn’t stop “puking, sneezing, or eyes watering”. See April 2019 VA Examination Report. A review of the Veteran’s service treatment records (STRs) shows no diagnosis or treatment for sinusitis. A July 1980 STR shows the Veteran’s denial of sinus disease. A January 1987 STR shows the Veteran’s complaints of a sore throat for three weeks along with a sore groin. The physician diagnosed the Veteran with pharyngitis. See January 1987 STR. The Board notes that the Veteran elected to not undergo a separation examination. See November 1989 STR. An April 2008 VA treatment record shows the Veteran’s complaints of sinus congestion, causing postnasal drip and making him “gag,” with no cough, headache, or dizziness. The physician noted sinusitis and continued treatment with Flonase. Another April 2008 VA treatment record shows the Veteran’s complaints of nasal discharge with sinus headache for ten days. A December 2012 VA treatment record shows the Veteran’s complaints of bilateral sinus pain, tenderness, and drainage with recurrent sinusitis. The Veteran reported Flonase and Zyrtec work well to prevent symptoms. The physician noted normal mucosa with bilateral maxillary sinus tender to percussion without notable swelling warmth. The physician reported sinusitis. A June 2013 VA treatment record shows the Veteran’s complaints of sinus congestion, headaches, sinus pain, and rhinorrhea. Acute sinusitis was noted. A July 2013 VA treatment record notes chronic sinusitis, with nasal antihistamine treatment. A couple days later, the Veteran’s x-rays show no evidence of sinus infection. An August 2013 VA treatment record shows that the Veteran was treated for sinus congestion that caused pressure and drainage. The physician noted clear sinus series with no signs of acute sinusitis, rather post-nasal drip. An April 2015 emergency department note shows the Veteran presented with six days of maxillary sinus pain, rhinorrhea, and coughing. The physician assistant noted a sinusitis assessment and prescribed Z-pack and guaifenesin. A February 2016 VA treatment record shows the Veteran’s complaints of a sinus infection with a cough, runny nose, and yellow/green mucus. An April 2017 VA treatment record shows that the Veteran was prescribed Augmentin, an antibiotic, to treat his sinusitis. In accordance with the June 2020 Board remand, the Veteran was afforded a VA examination in September 2020. The VA examiner noted diagnoses of chronic sinusitis and allergic rhinitis, diagnosed in December 2012. The Veteran reported recurrent nasal congestion and rhinorrhea, sneezing, itchy watery eyes, postnasal drip, sinus pressure and pain with purulent drainage. He further reported taking antihistamines and Flonase nasal spray with intermittent antibiotics. The VA examiner noted chronic sinusitis symptoms including episodes of sinusitis, tenderness of affected sinus, purulent discharge, and nasal crusting. The Veteran experienced five non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months with no incapacitating episodes. The Veteran has not had sinus surgery. The VA examiner found greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis with no complete obstruction. There was no evidence of permanent hypertrophy of the nasal turbinates, nasal polyps, nor granulomatous conditions. The VA examiner reported that the Veteran’s sinus condition does not impact his ability to work. Following the examination, the VA examiner opined that the Veteran’s sinus condition was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this opinion, the VA examiner noted the Veteran’s VA treatment records showing documentation of sinusitis but reported that the Veteran’s STRs only show a single documented progress note in January 1987 with the diagnosis of pharyngitis. Thus, there is no objective evidence of any diagnosis for chronic sinusitis or allergic rhinitis in service. The weight of the evidence indicates that the Veteran is not entitled to service connection for sinusitis. Here, the Board gives the VA examiner’s negative nexus opinion more weight over the Veteran’s lay statements. The Veteran has not been shown to be competent, by experience or training, to provide medical conclusions, especially as to complex medical diagnoses and opinions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Veteran is similarly not competent without medical expertise to establish that he suffers from chronic sinusitis beginning during service. The VA examiner opined that the Veteran’s sinusitis did not manifest during service and provided a well-reasoned rationale to support his opinion. Thus, the VA examiner’s opinion is afforded more probative weight. The evidence of record does not show that a chronic sinusitis condition was incurred in or caused by military service or manifested to a compensable degree within a one-year presumptive period following service. As such, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Therefore, service connection for sinusitis is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.