Citation Nr: 21063201 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 14-30 614 DATE: October 13, 2021 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for rhinitis is granted, Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for chronic bronchitis is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to fine, particulate matter during his combat service in Afghanistan. 2. The Veteran has current diagnoses of sinusitis and non-allergic rhinitis. 3. The Veteran does not have a current diagnosis of obstructive sleep apnea. 4. The Veteran does not have a current diagnosis of chronic bronchitis. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for sinusitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. 2. The criteria for presumptive service connection for rhinitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. 3. The criteria for entitlement to service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for chronic bronchitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2009 to August 2012, including service in Afghanistan for which he was awarded the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified before the undersigned. In December 2018 and April 2021, the Board remanded these matters for additional development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted if a veteran was exposed to particulate matter during active-duty service in specific geographic locations, to include Afghanistan, during the Persian Gulf War. See 38 C.F.R. § 3.2(i), 3.320. Certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.320 are met so long as they manifest to any degree (including non-compensable), even though there is no record of such disease during service. The enumerated diseases associated with exposure to particulate matter include sinusitis and rhinitis. 38 C.F.R. § 3.3320(a)(2). In these circumstances, service connection will be granted unless there is affirmative evidence that the enumerated disease was not incurred during or aggravated by a qualifying period of service, is due to a supervening condition or event occurring after the period of qualifying service, or if the disease is the result of the Veteran's own willful misconduct. In order to be considered for service connection, a claimant must first have a current disability. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding that a recent diagnosis of disability prior to a veteran filing a claim for benefits satisfies element one of service connection); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). 1. Entitlement to service connection for sinusitis is granted. 2. Entitlement to service connection for rhinitis is granted. The Veteran asserts that his sinusitis and rhinitis had their onset during his active-duty service, to include as due to exposure to environmental hazards during his combat service in Afghanistan. See February 2013 VA Form 21-526, August 2014 VA Form 9. The Board agrees. The Veteran has been diagnosed with maxillary sinusitis and non-allergic rhinitis. See December 2013 VA examination report. Additionally, a June 2014 VA treatment provider rendered a diagnosis of sinusitis based on the Veteran's complaints of sinus congestion, fever, productive cough, and sore throat that had persisted for five days. See June 2014 VA treatment records. As noted above, for the purposes of a current diagnosis, a diagnosis made at any time during the appeal period or just prior to, even if it resolves before adjudication, will satisfy element one of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, element one of service connection as to sinusitis and rhinitis are met. Regarding element two of service-connection, or in-service injury or disease, the Veteran was issued sodium chloride nasal spray for congestion in June 2010 to treat an upper respiratory infection. See Service Treatment Records (STRs). In November 2011, the Veteran was treated for a runny nose, headaches, and productive cough and diagnosed with a common cold. Id. Additionally, the Veteran reports that during his service in Afghanistan, he was exposed to environmental hazards. See February 2014 VA Form 21-526, November 2017 Board Hearing Transcript at 11. Per 38 C.F.R. § 3.320, the Veteran is presumed to have been exposed to environmental hazards, specifically fine particulate matter, during his combat service in Afghanistan. See DD Form 214; see also 38 U.S.C. § 1154. Accordingly, the Board finds that element 2 of service connection is met. Thus, the crux of this matter is whether there is a nexus, or element three of service connection, between the Veteran's in-service complaints and exposures and his current diagnoses of sinusitis and rhinitis. In this regard, in August 2014, a VA examiner reviewed the Veteran's service treatment records, noted that the Veteran was treated on several occasions for a common cold or upper respiratory infection, but concluded these were not chronic or recurring disabilities. See August 2014 VA examination report. Critically, the August 2014 VA examiner did not consider the Veteran's statement that his symptoms of rhinitis and sinusitis began in service and continued to the present. See Miller v. Wilkie, 32 Vet. App. 249, 258-60. The Board finds that the Veteran is competent to report symptoms of sinusitis and rhinitis, to include the persistence of the same over time, and has no reason to doubt his credibility. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the August 2014 VA examiner's opinion is of no probative value. In November 2019, a VA examiner concluded that the Veteran has never had a current diagnosis of sinusitis or rhinitis and that the diagnoses rendered at differing times by differing VA medical treatment providers were all in error. In support of this conclusion, the examiner relied on the Veteran's report that he has never had any symptoms except frequent epistaxis and relied on a lack of treatment in service. The Board notes the November 2019 VA examiner failed to discuss the Veteran's lay statements regarding his repeated sinus trouble when deployed to Germany, his continual use of nasal spray both during and post active-duty, or the nasal rinse prescribed for use by VA treatment providers. See November 2013 VA examination report, November 2017 VA treatment records, November 2017 Board Hearing Transcript at 17. The Board emphasizes that the Veteran is competent to report that he had repeated issues with his sinuses in service, as that is observable to a lay person, as the November 2019 VA examiner noted regarding epistaxis, and the Board finds him credible in this regard. See Layno, supra. For these reasons, the November 2019 VA examination report is inadequate. In the April 2021 Board remand, a VA examiner was asked to discuss several medical treatment records regarding sinusitis and rhinitis as well as the Veteran's lay statements and testimony, specifically whether the Veteran's lay statements were medically plausible to support a nexus statement. In June 2021, a VA examiner rendered an opinion without addressing the Veteran's lay testimony, and thus the opinion is also inadequate and of no probative value. See Miller, supra. Thus, the only evidence regarding a nexus is in favor of the claim, that sinusitis and rhinitis are presumptively associated with exposure to particulate matter during the Veteran's combat service in Afghanistan. There is no competent and probative affirmative evidence that the enumerated disease was not incurred during or aggravated by a qualifying period of service. Accordingly, the third element of nexus is met, and presumptive service connection for sinusitis and rhinitis is warranted. 3. Entitlement to service connection for obstructive sleep apnea is denied. 4. Entitlement to service connection for chronic bronchitis is denied. The Veteran asserts that he has obstructive sleep apnea and chronic bronchitis that are related to his active-duty service, to include as being due to his exposure to environmental hazards while serving in Afghanistan. See February 2013 VA Form 21-4138. Regarding element one of service connection, or a current diagnosis of obstructive sleep apnea, the Board notes that the Veteran does not have and has never had a diagnosis of obstructive sleep apnea at any point during or just prior to the appeal period. See December 2013, November 2019 VA examination reports; see also, generally, VA treatment records. The Veteran reported to the December 2013 VA examiner that he was unaware if he snored when sleeping and that he had never been informed of the same in the past. Id. Indeed, the Veteran testified that he was aware that he does not have a diagnosis of sleep apnea. See November 2017 Board Hearing Transcript at 10, 18. The Veteran's service treatment records and his post-service VA treatment records are silent as to any sleep-disordered breathing disability, to include obstructive sleep apnea. Thus, the Veteran's claim for obstructive sleep apnea must fail on this basis alone. See Brammer, supra. Regarding the Veteran's assertion that he has chronic bronchitis that had its onset during active-duty service, the Board does not agree. Initially, the Board notes that chronic bronchitis is not an enumerated disease in 38 C.F.R. § 3.320 (Claims based on exposure to particulate matter). Throughout the appeal period, the Veteran submitted to examinations of his respiratory system in December 2013 and November 2019. The Board notes that a VA respiratory examination, utilized to document all respiratory conditions other than tuberculosis and sleep apnea, differs from a VA ear, nose, and throat examination, which is utilized to document sinusitis, rhinitis, and other similar conditions. The VA examiners conducting the December 2013 and November 2019 VA respiratory examinations concluded the Veteran had no respiratory disorders, to include chronic bronchitis. While the Veteran was diagnosed with bronchitis in June 2014, that diagnosis was not noted to be chronic in nature as required by 38 C.F.R. § 4.97, Diagnostic Code 6600. Moreover, and critically, the November 2019 VA examiner considered the 2014 notation of bronchitis, and ultimately determined, based on the Veteran's reported symptoms, medical history, x-ray studies and physical examination, that he did not have a diagnosis of chronic bronchitis. The Veteran did not indicate that he had treatment for, symptoms of, or a diagnosis of respiratory disability, other than his claim of sleep apnea, in the years between service and his post-service non-chronic bronchitis diagnosis, and he likewise did not relay a diagnosis of respiratory disability during that time. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). Accordingly, the Board finds that, based on a preponderance of the evidence, the Veteran has not had a diagnosis of chronic bronchitis at any time just prior to or during the appeal period and service connection must be denied on this basis alone. See Brammer, supra. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.