Citation Nr: 21061679 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-44 439 DATE: October 5, 2021 ORDER Service connection for sinusitis is granted. Service connection for hypertension is denied. FINDINGS OF FACT 1. Sinusitis is attributable to Southwest Asia/Djibouti (Horn of Africa) service. 2. Hypertension was not manifest in the initial period of service nor did it manifest within one year of separation from that period of service ending in February 2003. The disability is not otherwise related to that period of service. 3. Clear and unmistakable evidence demonstrates that the Veteran's hypertension disability, not noted at entrance, pre-existed his period of active service that began in July 2009, and there was no increase in disability therein. The presumption of soundness is rebutted as to the second period of service. CONCLUSIONS OF LAW 1. The Veteran's sinusitis was incurred in wartime service in the Southwest Asia theater of operations/Djibouti (Horn of Africa). 38 U.S.C. §§ 1110, 1117 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.320. 2. The criteria for service connection for hypertension are not met as to the first period of active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The Veteran's hypertension clearly and unmistakably pre-existed his subsequent period of active service and was not aggravated therein. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, served on active duty from September 2002 to February 2003 and July 2009 to August 2010, with prior national guard service. He served in Southwest Asia during the Gulf War as well as in the Horn of Africa. He appeals a January 2014 rating decision. In November 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing in San Juan, Puerto Rico. A transcript of the proceeding is of record. During the Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claim; inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. To the extent that a September 2012 rating decision was final as to the claim of hypertension (in view of the February 2013 'claim' for the same benefit leading to the current appeal), the record contains evidence and argument in association with this claim that the Board, on close review, deems new and material under controlling law. We note 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). As such, the claim is addressed on the merits herein. We also note that service connection is in effect for multiple disabilities, to include allergic rhinitis, and that his combined disability rating is 100 percent effective from June 2014. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases to include hypertension will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In addition to the regulations cited above, because the Veteran served in the Southwest Asia Theater of operations since August 2, 1990, service connection may also be established under38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. 38 C.F.R. § 3.317 (a)(1). Relevant to the sinusitis claim, a new regulation addresses claims based on exposure to particulate matter: § 3.320 Claims based on exposure to particulate matter. (a) Service connection based on presumed exposure to particulate matter - (1) General. Except as provided in paragraph (b) of this section, a disease listed in paragraph (a)(2) of this section shall be service connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service that includes a qualifying period of service as defined in paragraph (a)(4) of this section. (2) Chronic diseases associated with exposure to particulate matter. The chronic diseases referred to in paragraph (a)(1) of this section are the following: (i) Asthma. (ii) Rhinitis. (iii) Sinusitis, to include rhinosinusitis. (3) Presumption of exposure. A veteran who has a qualifying period of service as defined in paragraph (a)(4) of this section shall be presumed to have been exposed to fine, particulate matter during such service, unless there is affirmative evidence to establish that the veteran was not exposed to fine, particulate matter during that service. (4) Qualifying period of service. The term qualifying period of service means any period of active military, naval, or air service in: (i) The Southwest Asia theater of operations, as defined in § 3.317(e)(2), during the Persian Gulf War as defined in § 3.2(i). (ii) Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001 during the Persian Gulf War as defined in § 3.2(i). (b) Exceptions. A disease listed in paragraph (a)(1) of this section shall not be presumed service connected if there is affirmative evidence that: (1) The disease was not incurred during or aggravated by a qualifying period of service; or (2) The disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) The disease is the result of the veteran's own willful misconduct. [86 FR 42732, Aug. 5, 2021] A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. See 38 U.S.C. §§ 1111, 1137, 38 C.F.R. § 3.304 (b). This concept is often referenced as the presumption of soundness. Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304 (b), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1). The United States Court of Appeals for the Federal Circuit has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111. Regarding the existence of a preexisting condition, to be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); 38 U.S.C. § 1111. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304 (b)(1). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. Id. To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service the second step necessary to rebut the presumption of soundness a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id.; 38 C.F.R. § 3.322. 1. Service connection for sinusitis is granted. First, we note that there is current sinusitis as demonstrated in multiple VA examination reports dated from at least August 2012. Second, there are multiple conflicting VA examinations dated from that time both that support and are against finding sinusitis is attributable to service. Third, the Veteran urges that his current sinusitis is related to his exposure to particulate matter in Southwest Asia/Horn of Africa (Djibouti). At his hearing, he denied having sinusitis in service, but believes it is due to exposure from burning oil refinery/pit in Kuwait. Due to the place in which his unit slept near a refinery and burn pit, he had to place his poncho over his bed. When he packed it up in the morning, it was covered with sand and particulate matter. Fourth, in view of the new regulation, 38 C.F.R. § 3.320, we find that the current sinusitis is presumptively related to his service in Kuwait/Horn of Africa (Djibouti). There is a July 2017 opinion in favor of a connection between this service and sinusitis. However, we are mindful of the June 2021 VA negative medical opinion, but we point out that the June 2001 National Guard retention examination upon which it is based that shows a diagnosis of chronic sinusitis prior to active duty also contains findings that there is no sinusitis. We do not find it establishes that sinusitis clearly and unmistakably pre-existed service that began in September 2002. We also note that a VA general medical examination in 2005 contains no diagnosis of sinusitis. In this case, the only evidence suggesting pre-existing sinusitis prior to September 2002 appears to be the Veteran's lay statements that he had a history of chronic sinusitis. The standard required to rebut the presumption is a high one and on review, the record simply does not contain clear and unmistakable evidence that sinusitis pre-existed the Veteran's first period of active duty. Thus, the presumption of soundness has not been rebutted and the in-service element is established. Notwithstanding, the Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. See 38 C.F.R. § 3.303; Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). This has been done as set for the above based on the new presumption regulation. Accordingly, service connection for sinusitis is granted. 2. Service connection for hypertension is denied. The Veteran contends that he has hypertension related to service. He testified that it was diagnosed in 2011 but made no other substantive argument at that time. There is current hypertension managed by medication, as reflected in VA treatment records throughout the appeal period. Period of service from September 2002 to February 2003 Hypertension is not shown or indicated during the period of service from September 2002 to February 2003 or within a year of separation from that period of service. Rather, hypertension is first noted in a June 2005 VA general medical examination. That examination reflects A diagnosis of 'high blood pressure, de novo'. The record is uncontroverted with respect to the fact that hypertension was not noted or suggested to exist prior thereto. Thus, the preponderance of the evidence is against finding the current hypertension was manifest in this period of service or within a year of separation from this period of service. Presumptive service connection based on chronic disease is not warranted. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There was no medically chronic disease in service with regard to hypertension. The preponderance of the evidence is also against finding that the current hypertension is otherwise related to this period of service. Again, the first mention of high blood pressure is the June 2005 VA examination. The Veteran himself does not contend that he was told he had hypertension in the first period of service, rather he believes it was present from 2011. There are no service treatment records during this period of service that show complaints or findings related to the hypertension. There is no opinion that hypertension is related to the first period of service. Here, the chronic disease of hypertension was not noted, diagnosed or manifest during or within one year of separation from this period of service. Period of service from July 2009 to August 2010 Turning to the second period of service, while not actually diagnosed on any entrance physical examination, hypertension clearly and unmistakably pre-existed this period of service and was not aggravated therein. Clinical records clearly establish that hypertension was present in between the periods of service. 38 C.F.R. §§ 3.303, 3.304, 3.306. Moreover, hypertension underwent no increase in disability during this period of service. There is no argument that it did. Here, pressure was recorded as 148/96 and 116/63 in July 2009. This was followed by a reading of 141/99 in July 2010. However, when seen in April 2012, pressure was 125/80. Such facts establish that his blood pressure varied, however the 2012 post service reading established that there was not a chronic increase. While a VA examiner opined in September 2012 that hypertension was related to service as it was first treated in service in December 2009, that opinion is outweighed by the fact that there was documentation of hypertension in June 2005 that was not noted by the 2012 VA examiner. The September 2012 is not probative as to onset of hypertension as it was not based on an accurate factual premise. Moreover, the record is uncontroverted in demonstrating that hypertension did not undergo any increase in severity during the second period of service. First, there is no argument to this effect. Second, he was managed on standard blood pressure medications for this condition since that second period of service and there is no indication that it worsened during that period of service. Although the burden of proof rests with the government, the facts establish that there was no increase in disability during service. We find that it did not increase in disability. While the Veteran believes hypertension is somehow related to service, he is not competent to provide a nexus opinion in this case. There is no credible evidence that the current hypertension is related to service under any theory. Rather, there is clear and unmistakable evidence that hypertension preexisted service and clear and unmistakable evidence that it did not increase in severity during service or within one year of separation. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.