Citation Nr: 21064688 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-25 972 DATE: October 21, 2021 ORDER Entitlement to service connection for an upper respiratory disability, to include sinusitis and allergic rhinitis, is denied. FINDING OF FACT The preponderance of the evidence is against finding that an upper respiratory disability, to include sinusitis and allergic rhinitis, began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an upper respiratory disability, to include sinusitis and allergic rhinitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1951 to October 1954 with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2018 and December 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Central Office hearing held at the Board's offices in Washington, DC in February 2020. In July 2020, the Board remanded the claim to the RO to obtain a medical opinion in connection with this claim. A December 2020 medical opinion was obtained. The RO issued a supplemental statement of the case (SSOC) in January 2021 that was followed by another Board decision remanding the claim to the RO for further development. Specifically, the Board remanded the claim again in April 2021 because the Veteran had submitted private treatment records showing an earlier onset of sinusitis than was previously shown. Thus, the Board wanted a medical professional to review the additional records and provide an addendum opinion to ensure that the medical opinion was based upon a review of the whole record. A May 2021 addendum medical opinion was obtained. The RO issued an SSOC in June 2021 and the matter now returns to the Board for further proceedings. The Board is satisfied there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Disorders diagnosed after discharge will still be service connected if 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 be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Entitlement to service connection for an upper respiratory disability, to include sinusitis and allergic rhinitis The Veteran contends he underwent a submucous resection while in service in 1952 and he has had sinusitis since then. The Veteran's representative stated military service records reflect personal injury and complaint consistent with the manner of his military service, to include exposure to hazardous materials while on active duty. The Veteran reported that after exposure to highly toxic carcinogenic hydraulic fluid inside a P5M seaplane, he reported postnasal drip. The Veteran also contended his sinusitis was secondary to status post craniotomy. The Veteran stated symptoms include chronic "significant" postnasal drainage, he constantly has to "wipe" his mouth while eating, and always carries a handkerchief. He reported he uses a nasal spray nightly. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for an upper respiratory disability, to include sinusitis and allergic rhinitis on a direct, presumptive, or secondary basis. The reasons follow. The Veteran has been diagnosed with sinusitis and allergic rhinitis, and thus there is evidence of a current disability, and the facts establish that the first element of a service-connection claim is met. Regarding the theory of service connection for an upper respiratory disability, to include sinusitis and allergic rhinitis, claimed as secondary to status post craniotomy, a claim for service connection on a secondary basis requires evidence sufficient to show that a current disability was either caused or aggravated by a service-connected disability. Status post craniotomy is not a service-connected disability, and the claim for service connection for this disability was denied in the July 2020 Board decision. The only service-connected disability the Veteran has involves ptosis of the right eye, and there has not been an allegation nor evidence that this service-connected disability caused or aggravated an upper respiratory disability, such as sinusitis and/or rhinitis. Thus, the preponderance of the evidence is against a finding of service connection for an upper respiratory disability, to include sinusitis and allergic rhinitis, based on a secondary theory of service connection. As to evidence of an in-service disease or injury under a theory of direct service connection, the Veteran underwent a submucous resection during active service in July 1952 as documented in the service treatment records. The July 1952 hospitalization record shows that the Veteran had a deflection of the nasal septum due to unknown cause. Within this record, the examiner documented that the Veteran reported that while skating two years prior, he had broken his nose and had experienced frequent frontal headaches, postnasal discharge, colds, and stopped-up ears. Physical examination showed a moderate deflection of the nasal septum posteriorly to the right with the nasal crust deviated to the right with the right side partially obstructed. The surgery was performed, and the examiner documented a finding of a good prognosis. Accordingly, the in-service disease or injury element is met to this extent. However, as to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the September 1954 Report of Medical Examination from service discharge shows that clinical evaluations of the nose and sinuses were normal. Private treatment records following service discharge show the Veteran was hospitalized from January 1956 to February 1956 for a right upper eyelid droop, and x-rays of the skull showed that the sinuses appeared clear. In a January 1957 Report of Medical History, the Veteran answered "Yes" to a question regarding a history of ear, nose, or throat problems, and he documented the submucous resection in 1952. However, when asked if he had a history of sinusitis and hay fever, he responded, "No" to both symptoms. The January 1957 Report of Medical Examination shows that clinical evaluations of the nose and sinuses were normal. At this point, it had been more than two years following service discharge and more than four years since the Veteran had undergone the in-service surgery, and the Veteran's nose and sinuses were found to be clinically normal on two occasions, in September 1954 and January 1957. Additionally, a 1956 x-ray showed clear sinuses, and the Veteran denied a history of sinusitis and hay fever in January 1957. These facts do not show the onset of an upper respiratory disability, such as sinusitis and/or rhinitis, during service or even soon after service discharge. While the Veteran had testified that he had had problems ever since the 1952 surgery, the documented facts do not support this allegation. The Board accords more probative value to the clinical findings in the 1954, 1956, and 1957 medical records and the Veteran's denial of a history of sinusitis and hay fever in 1957 than the statements made during the current appeal of chronic symptoms since the 1952 surgery. The facts documented in the 1954, 1956, and 1957 records were documented contemporaneously to the time period in question, which facts tend to be highly reliable, and thus are found to be highly probative of the Veteran's symptoms during that time period. The treatment records show that a March 2001 CT scan in private treatment records documented findings positive for sinusitis. In an April 2001 letter, Dr. John Zucker wrote that the Veteran presented with "a 1 12 year history of perennial nasal symptoms, postnasal drip and cough. There is no history of asthma." Thus, the facts documented in this post-service treatment record establish that the onset of the Veteran's upper respiratory symptoms was in approximately 1999, which is more than 40 years following service discharge. This fact of an onset in approximately 1999 is further supported by an April 2003 private treatment record, which shows the Veteran reported coughing and congestion, which had started three and one-half years prior, and reported he was allergic to cats. The onset of upper respiratory symptoms more than 40 years after service discharge is evidence against a nexus between the post-service upper respiratory symptoms and service. Subsequent private treatment records do not report an onset of sinusitis or allergy treatment as being in close proximity to the Veteran's period of active duty from 1952 to 1954. Additionally, the 2001 and 2003 private treatment records refute the Veteran's allegation of chronic symptoms since 1952, as he reported the onset of his symptoms in approximately 1999. The Board accords high probative value to what the Veteran reported in 2001 and 2003 while seeking treatment for these symptoms, as statements made in these circumstances tend to be highly reliable. Further, the facts made two years apart are consistent with each other and further support their reliability. In the May 2021 VA medical opinion, the examiner opined that that the Veteran's sinusitis was less likely than not related to or otherwise incurred in service, explaining that, while numerous factors can contribute to sinusitis, there was an absence of evidence in the medical record showing the Veteran's sinusitis was related to the submucous resection surgery he underwent while in service. The VA examiner noted the Veteran underwent right mucosal resection in 1952 and that sinusitis was first shown in 2001. The examiner also pointed out that from the time of surgery until separation from service in 1954, there were no records of respiratory complaints or ongoing treatment. Additionally, the VA examiner highlighted the fact that the Veteran selected "normal" on several medical questionaries relating to his ear, nose, and throat while on active duty. This opinion establishes that sinusitis/allergic rhinitis is not related to service. The VA examiner's findings are consistent with what is documented in the service treatment records and post-service medical records, which show the Veteran denying a history of sinusitis in 1957, normal clinical evaluations of the nose and sinuses in 1954 and 1957, and the first documentation of a sinusitis diagnosis was in 2001. The consistency of the May 2021 VA examiner's analysis and findings with the rest of the medical record further supports that opinion and the finding of a lack of nexus between the post-service upper respiratory disability and service. The Veteran underwent a VA examination in September 2018 that noted the Veteran reported using a nasal spray at that time. However, sinus x-rays at that time showed negative findings. Although the Veteran claims that he developed a chronic upper respiratory disability that started in service, he is not competent to directly link the post-service diagnoses of sinusitis and allergic rhinitis to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. At the present time, there is no competent evidence to weigh against the negative May 2021 VA opinion, and the nexus element of a service-connection claim is not met. The Board has considered the Veteran's contentions beginning with the Veteran's statements that he has had sinusitis since undergoing a submucous resection while in service in 1952. The Veteran contended he has had constant pain associated with sinusitis during the pendency of his claim to constitute a current disability of the same. Furthermore, the Veteran asserted pain and suffering associated with sinusitis has been continuous since his discharge. These statements are inconsistent with the medical records, which records were created contemporaneously with the relevant time periods. As detailed above, the Veteran showed normal sinus findings in a Report of Medical Examination at service discharge in September 1954. X-rays from private treatment records from January to February 1956 showed the sinuses appeared clear. While the Veteran answered "Yes" to a question regarding a history of eye, ear, nose, or throat problems in January 1957, he reported only that he had a submucous resection in 1952. Notably, the Veteran answered "no" to the question of whether he had a history of sinusitis. At that time, clinical evaluations of the nose and sinuses were normal. These normal findings in physical examinations, diagnostic imaging, and reports by the Veteran covering over a four-year period following the surgery are strong evidence that the Veteran has not had sinusitis since his July 1952 surgery. Additionally, the record is absent for complaints or treatment of any sinus condition for more than 40 years until the Veteran showed signs of sinusitis in 2001. The absence of evidence of even a complaint or that the Veteran sought treatment for such a significant amount of time suggests the Veteran did not have sinusitis during that period. Indeed, the April 2001 private treatment record showed the Veteran reported an onset of the symptoms as being one and one-half years prior to that time period, and reiterated a similar onset when treated in April 2003, when he reported that his symptoms of coughing and congestion had started three and one-half years ago. Both of these records would establish an onset of symptoms in approximately 1999. Compared to the Veteran's contention that he has had sinusitis since his 1952 surgery, the Board affords more weight to the objective medical findings in physical examinations and diagnostic imaging medical records from 1954 to 1957 as they are consistent with each other and consistent with the Veteran's own statements from that time that he had no history of sinusitis. These findings and statements are also consistent with the lack of evidence that the Veteran complained or sought treatment for sinusitis for over four decades following service discharge. The Board considered the contentions made in the January 2021 and July 2021 submissions by the Veteran's representative. The Veteran's representative stated the April 2021 Board remand included a direction to obtain an additional medical opinion regarding the Veteran's sinusitis in light of new evidence that had been added to the claims file. The representative acknowledged that a subsequent VA examination took place in May 2021. However, the representative argued the RO did not use or cite to this examination, and instead relied on examinations that had become moot to deny the Veteran's claim. A review of the RO's June 2021 SSOC shows the representative's statements to be inaccurate. In that SSOC, the RO not only cited to the May 2021 VA examination, but summarized the relevant part of the May 2021 VA examiner's findings and relied on the opinion the May 2021 VA examiner issued in denying the Veteran's claim. Contrary to the statements made by the Veteran's representative, the June 2021 SSOC did not mention the prior VA examination. Thus, the contentions by the Veteran's representative that the RO did not use or cite to the May 2021 examination in denying the Veteran's claim are without merit. The Board has also considered the Veteran's contention that the Veteran was exposed to hazardous materials while on active duty, and that he reported postnasal drip after exposure to highly toxic carcinogenic hydraulic fluid inside a P5M seaplane. The May 2021 VA examiner discussed possible etiologies of the Veteran's disability and explained how sinusitis is one of the most prevalent chronic illnesses affecting all age groups, and it is an inflammatory process involving the paranasal sinuses which can be acute (sudden and usually last 2 to 4 weeks) or chronic (symptoms lasting 12 weeks or longer). She noted that most cases of chronic sinusitis are a continuation of unresolved acute sinusitis, and medical literature states chronic sinusitis manifests differently from acute sinusitis. The VA examiner detailed symptoms of chronic sinusitis include nasal congestion, postnasal drip, facial swelling, and malaise, and symptoms of acute sinusitis includes tenderness to sinuses, facial redness, mucosal redness, postnasal discharge, and nasal congestion. The VA examiner noted the pathophysiology of sinusitis is multifactorial including systemic (congenital illnesses such as cystic fibrosis, auto-immune diseases, idiopathic), local host (sinus anatomic abnormalities, scarring from prior sinus surgery, nasal polyps, foreign body) and environmental factors (pollutants, bacterial/viral/fungal infections, allergy and smoking (Medscape). She pointed out nasal fractures are the most common facial fractures and usually go unnoticed, and, depending on severity of septum deviation, it may inhibit drainage of the sinuses subsequently causing chronic sinus infections. The VA examiner highlighted how there was no clear recommendation in regard to surgical approach or when surgery should be performed, and literature states complications of nasal fracture include airway obstruction, nasal deformity, and septal perforation to name a few. She also noted that medical literature stated treatment of nasal and septal fractures should be undertaken after thorough evaluation of injury severity. Thus, although the May 2021 VA examiner considered the Veteran's contentions, her opinion shows that while numerous factors can contribute to sinusitis, her opinion does not support that hydraulic fluid causes it. More weight is afforded to the VA examiner's analysis than the Veteran's contention. The VA examiner offered a detailed explanation of the potential etiology of sinusitis/allergic rhinitis after considering the Veteran's contentions, the full medical record, and medical literature. The Board finds this considerably more probative than the contention made by the Veteran with no supporting evidence. Further, the Veteran submitted an article that discusses exposure to hydraulic fluids. While it is unclear whether this submission was intended to be in support of the Veteran's claim for service connection for an upper respiratory disability, to include sinusitis and allergic rhinitis, it is noted that the article does not mention sinusitis or allergic rhinitis. Hence, the article is nonprobative evidence. In sum, for all the reasons laid out above, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for an upper respiratory disability, to include sinusitis and allergic rhinitis. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Patton 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.