Citation Nr: A21016755 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 181207-1312 DATE: October 14, 2021 ORDER Entitlement to service connection for a sinus disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDING OF FACT Clear and unmistakable evidence demonstrates that a sinus disability pre-existed service and clearly and unmistakably did not increase in severity during service. CONCLUSIONS OF LAW 1. A sinus disability clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated therein. The presumption of soundness at entrance is rebutted. 38 U.S.C. § 1111. 2. A sinus disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1111, 1110, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.304 (b), 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to January 1968. In January 2020, the Board in pertinent part denied the Veteran's appeal for entitlement to service connection for a sinus disability, to include as due to exposure to contaminated water at Camp Lejeune. The Veteran appealed the Board's denial of entitlement to service connection for sinus disability, to include as due to exposure to contaminated water at Camp Lejeune, to the United States Court of Appeals for Veterans Claims (Court). In November 2020, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR). An order of the Court dated November 2020, vacated in part the Board's January 2020 decision, and remanded the case to the Board. 1. Pertinent Legal Criteria 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). 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). Every veteran shall be taken 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. Id. Clear and unmistakable evidence means evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The government may show a lack of aggravation by establishing by clear and unmistakable evidence 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, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). 2. Service Connection The Veteran was provided a January 1966 VA enlistment examination. The Veteran's sinuses and nose were evaluated as normal. During the examination, on his report of medical history, the Veteran reported that he had a history of sinusitis. The Veteran was provided an August 1966 VA examination. The Veteran's sinuses and nose were evaluated as normal. The Veteran was provided a January 1968 separation VA examination. The Veteran's sinuses and nose were evaluated as normal. The Veteran's service treatment records were silent of any complaints, symptoms or diagnosis relating to the Veteran's nose or sinuses. The Veteran made a lay statement on his 2016 Notice of Disagreement. See, e.g., Notice of Disagreement dated August 2016. The Veteran stated that he broke his nose while on active duty in a car wreck. The Veteran further stated that he did not go to sick bay, but if his nose was examined, an examiner would be able to see it is broken and never reset. The parties to the November 2020 JMPR agreed that the Board in the November 2020 decision erred when it failed to provide an adequate statement of reasons or bases for denial of service connection for sinus disability, to include as due to exposure to contaminated water at Camp Lejeune. The Court found that the Board erred by not properly applying the presumption of soundness under 38 U.S.C. § 1111. The Court also found that the Board should determine if the Veteran's August 2016 lay statement regarding his in-service injury is credible. The Board was further instructed to consider and address whether a VA medical opinion is warranted to address whether the Veteran's current sinus disability is related to service. The Veteran submitted an additional lay statement in February 2021. See, e.g., Buddy/Lay Statement dated February 6, 2021. This evidence is outside of AMA consideration. After considering the evidence, the Board finds that the Veteran's preexisting sinus disorder was clearly and unmistakably not aggravated by his service. The contemporaneous records show no change in his disability during service. At entrance the Veteran reported a history of sinusitis. However, during the entrance examination, the Veteran's sinuses and nose were evaluated as normal. The Veteran received other examinations during active duty which evaluated the Veteran's sinuses and nose as normal each time. In addition, the Veteran's service treatment records are silent to any issues, complaints or diagnoses related to the Veteran's nose or sinuses. There were no other notation, treatments, or problems related to a sinus disability. The first evidence of any trauma to the Veteran's nose was a deviated septum noted in November 2010. See, e.g., Medical Treatment Record- Non-Government facility dated August 2015. There is no credible evidence that the service resulted in an increase in the underlying sinus disability or any aggravation of his sinus disability. See Davis, 276 F.3d at 1345; Green, 1 Vet. App. at 323. According to the Veteran he received a trauma during service, which caused aggravation of his sinus disability. While the Veteran is competent to state receiving physical trauma, he is not competent to render a medical diagnosis. More importantly, the lay evidence is not consistent with the contemporaneous service records. The Veteran's theory is not credible. There are no contemporaneous medical records referencing an in-service incident. Furthermore, a failure to report would not explain the normal findings at separation. Since the Veteran's statement is not credible, there is no evidence of an in-service event, injury or aggravation. The normal VA separation examination and lack of reported symptoms until 2010 show that there was no increase in the disability during service. Without credible evidence of an in-service event, disease, injury or evidence of any pathology, the Board deems a VA examination is not warranted. The credible evidence of record shows there is clear and unmistakable evidence that a sinus disability was not aggravated by service. The burden is on the government and that standard has been met. The presumption of soundness is rebutted. As an aside, we have considered Camp Lejeune exposure. However, a sinus disability is not a Camp Lejeune presumptive disability and he has presented no evidence that a sinus disability would be related to contamination at Camp Lejeune. In sum, as the Veteran's sinus disability clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated therein, service connection for a sinus disability is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adam Konieczny 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.