Citation Nr: 21065396 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 13-26 332 DATE: October 26, 2021 ORDER Entitlement to service connection for sinusitis is denied. FINDING OF FACT The preponderance of the evidence fails to show that the Veteran has a current chronic sinusitis disability that had an onset during service or is otherwise causally or etiologically due to service. CONCLUSION OF LAW The criteria for service connection for sinusitis 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 from March 1985 to June 1991 and December 2003 to March 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. A personal hearing was conducted between the Veteran and undersigned in September 2016. A transcript is associated with the record. The Board most recently remanded this matter in December 2019 for further development. 1. Entitlement to service connection for sinusitis. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that her sinusitis, and sinus symptoms, were caused by in-service exposure to dust, smoke, exhaust fumes, pesticides, and a burn pit. Alternately, she maintains that her sinus symptoms are manifestations of an undiagnosed illness. A May 2010 VA examination confirmed diagnosed intermittent sinusitis. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, service treatment records confirm diagnosed sinusitis. Personnel records also confirm Persian Gulf service. The first and second elements of service connection are met. As to the remaining question of a medical nexus, the record includes negative examination opinions from October 2018, February 2020, and April 2020. As to the February 2020 opinion, the examiner, in pertinent part, opined that the Veteran has never experienced or claimed experiencing sinusitis. This opinion inadequate as it fails to address the assertions of the Veteran and the medical evidence of record. It will not be discussed further. As to the October 2018 and April 2020 opinions, the Board finds that, when combined, they are sufficient to adjudicate the claim. The 2018 VA examiner opined that per treatment records and diagnostic testing, the Veteran's sinusitis was never chronic, but only acute, and had resolved years prior to examination. The April 2020 examiner affirmed the findings of the 2018 examiner. The April 2020 examiner conceded that the Veteran experienced in-service sinusitis and exposure to varying dusts/contaminants. The examiner also acknowledges the post-service diagnoses for sinusitis. Notwithstanding these concessions, the examiner explained that in-service and post-service records lacked the relevant medical evidence necessary to support a finding of a chronic sinusitis disability. Instead, these records only supported chronic rhinitis for which the Veteran is already service connected. As to relevant medical evidence, the examiner first clarified that diagnosing sinusitis is difficult as it is clinically known to have symptomatology that overlaps with other co-occurring conditions such as rhinitis and viral URI. The examiner then explained that the only definitive way to diagnosis sinusitis is not by considering symptomatology, but instead by conducting diagnostic testing (CT scans) of the sinus cavities. That said, here, treatment records are negative for CT scans confirming chronic sinusitis during or post service. The record also lacks objective findings from physicians differentiating the Veteran's sinusitis symptomatology from her overlapping chronic rhinitis and viral URI symptomatology. Given the above, the examiner opined the record is insufficient to establish the presence of chronic sinusitis in or since service. The examiner emphasized consideration of the lay evidence of record. However, the examiner explained the lay evidence lacked probative value because it did not accurately distinguish rhinitis vs. sinusitis symptomatology. In that regard, despite the Veteran's reports of sinusitis symptomatology the record established the only medications used to treat her symptoms are prescribed for rhinitis. The Board finds the combined opinions well rationalized against the evidence of record and to be highly probative. There is no competent opinion to the contrary. Entitlement to service connection is not warranted on a direct basis. As to presumptive service connection, because the Veteran is a Persian Gulf Veteran, service connection may alternatively be established for a chronic disability resulting from an undiagnosed illness under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. However, an analysis under 38 C.F.R. § 3. 317 is not necessary for a diagnosed condition like sinusitis or rhinitis since the presumptive provisions of the regulation are limited to undiagnosed illnesses or medically unexplained chronic multi-symptom illnesses. As indicated above, the VA examiner very clearly attributed the Veteran's sinus complaints throughout the appeal to known diagnosed disabilities. There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317 (a)(2)(C). Based upon the evidence of record, the Board finds chronic sinusitis was not manifest during active service. The preponderance of the evidence also fails to establish chronic sinusitis is etiologically related to service, including as a result of service in Southwest Asia. The circumstances and experiences of the Veteran's service, to include Gulf War exposures and diagnosed sinusitis, are conceded. However, the totality of the evidence weighs against the claim. The combined negative VA opinions are found to be persuasive in this case, as they are predicated on total review of the record, to include lay statements and examination. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, although service treatment records indicate treatment for sinusitis, it has been deemed acute and healed without residuals. See 38 C.F.R. § 3.380. The Board acknowledges the lay evidence of record. The Veteran and her friends/family are also competent to report observable symptoms. However, there is no indication that they are competent to etiologically link any chronic symptoms to her service, including as due to service in Southwest Asia. To that end, nothing in the record demonstrates that she or her friends/family received any special training or acquired any medical expertise as to the disorders at issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the statements as to sinusitis do not constitute competent medical evidence and lack probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. The preponderance of the evidence in this case is against the Veteran's claims. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.