Citation Nr: 21065773 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-06 064 DATE: October 27, 2021 ORDER Service connection for hypertension is denied. Service connection for chronic sinusitis is denied. FINDING OF FACT 1. The preponderance of the evidence shows that the Veteran's hypertension did not had its onset in service or is related to service or his service-connected disabilities. 2. The preponderance of the evidence shows that the Veteran's chronic sinusitis did not had its onset in service or is related to service or his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. The criteria for service connection for chronic sinusitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1961 to October 1963. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in September 2019 and March 2021 and remanded for additional development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). The United States Court of Appeals for the Federal Circuit held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that "a veteran could demonstrate service connection simply by asserting subjective pain" because, to establish that a disability is present, the veteran "will need to show that... pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it "to function under the ordinary conditions of daily life including employment." Id. at 1363 (quoting 38 C.F.R. § 4.10). 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. See 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. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Hypertension The Veteran seeks service connection for his hypertension condition. In support, the Veteran provided credible testimony that he was diagnosed with hypertension in 1964 at Kaiser Permanente in California. See BVA hearing transcript (May 2019). In September 2019 and March 2021, the Board remanded this issue with instructions for the examiner to consider the medical and lay evidence on record and determine the onset, etiology and nature of his hypertension, as well, to indicate if the condition is related to service or his service-connected conditions. Subsequently, in June 2021, the Veteran was provided a VA examination and the examiner noted that the Veteran had a diagnosis of hypertension. Additionally, the examiner opined that his hypertension was less likely than not incurred or caused by service or his service-connected conditions. The rationale was that no service records describe hypertension and none of his service-connected conditions can cause hypertension. The earliest records demonstrating hypertension or functional impairment is in 2001. See VA medical treatment record (December 2001). The Board finds that the evidence on record does not show treatment or a diagnosis for hypertension or functional impairment in service or that such condition is related to service or occurred within one year after service. As such, service connection is not warranted. The Board acknowledges the Veteran's credible testimony at his BVA hearing that his condition was diagnosed in 1964 after service at Kaiser. See BVA hearing transcript (May 2019). However, these records were never found or produce after the Board requested them in previous decisions. Moreover, the evidence does not show that the Veteran suffered from a high blood pressure condition or functional impairment in service or within one year after service. Indeed, the evidence shows a diagnosis and functional impairment around 2001, more than 30 years after service. Therefore, service connection is not warranted since the record does not show that the Veteran's hypertension condition started in service, or within one year after service, or was aggravated by service or his service-connected conditions. In light of the forgoing, the Board finds that the June 2021 VA examination and the absence of medical evidence reflecting that his hypertension condition is related to service to be persuasive and of the greatest probative value. It is apparent that the Veteran's hypertension condition is not related to service, thus, service connection is not warranted. As such, the preponderance of the evidence is against the claim of service connection. Therefore, the Veteran does not warrant service connection for his hypertension condition. 2. Sinusitis The Veteran seeks service connection for his chronic sinusitis condition. In support, the Veteran provided credible testimony regarding the relation of his condition to service and that he self-medicated with over-the-counter medications. See BVA hearing transcript (May 2019). In March 2021, the Board remanded this issue for a VA examination with instructions for the examiner to consider the medical and lay evidence on record and determine the onset, etiology and nature of his sinusitis, as well, to indicate if the condition is related to service or his service-connected conditions. Subsequently, in June 2021, the Veteran was provided a VA examination and the examiner noted that the Veteran had a diagnosis of sinusitis. Additionally, the examiner opined that his sinusitis was less likely than not incurred or caused by service or his service-connected conditions. The rationale was that no service records describe sinusitis and sinusitis cannot be caused by cold exposure. See VA medical examination (June 2021). The Board finds that the evidence on record does not show treatment or a diagnosis for sinusitis or functional impairment in service or that such condition is related to service or occurred within one year after service. As such, service connection is not warranted. The Board acknowledges the Veteran's credible testimony at his BVA hearing that he self-medicated his sinusitis with over-the-counter medications. See BVA hearing transcript (May 2019). However, the evidence does not show that the Veteran suffered from a sinus condition or functional impairment in service or within one year after service. Indeed, the evidence shows a diagnosis and functional impairment around 2002, more than 30 years after service. See VA medical treatment record (May 2002). Therefore, service connection is not warranted since the record does not show that the Veteran's chronic sinusitis condition started in service, or within one year after service, or was aggravated by service or his service-connected conditions. In light of the forgoing, the Board finds that the June 2021 VA examination and the absence of medical evidence reflecting that his chronic sinusitis condition is related to service to be persuasive and of the greatest probative value. It is apparent that the Veteran's chronic sinusitis is not related to service, thus, service connection is not warranted. As such, the preponderance of the evidence is against the claim of service connection. Therefore, the Veteran does not warrant service connection for his chronic sinusitis. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.