Citation Nr: 21068403 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-06 005A DATE: November 10, 2021 ORDER Entitlement to service connection for sinusitis, rhinitis, or a respiratory related condition, excluding histoplasmosis, is denied. FINDING OF FACT The Veteran's current conditions, including sinusitis, rhinitis, and other respiratory conditions, which have occurred during the relevant time frame, have not been otherwise related to or etiologically linked to an in-service event, injury, or disease, including exposure to herbicide agents during service in the Vietnam War. CONCLUSION OF LAW The criteria for service connection for conditions, including sinusitis, rhinitis, and other respiratory conditions are not met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from December 1965 to December 1968. Records also noted the Veteran had service in the reserves after active duty service. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2017 and October 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board noted that in May 2015, the Veteran filed a claim for histoplasmosis, which was denied in a rating decision in September 2015. This decision was never appealed and became final. Then in December 2016, the Veteran filed a claim for coughing up phlegm. The December 2016 claim was denied in a March 2017 rating decision. Before the March 2017 rating decision became final, the Veteran filed in June 2017 for coughing up phlegm, sinusitis, aphonia, and recurrent infections, submitting new evidence. The October 2017 rating decision continued and confirmed the previous denial for a respiratory condition. In May 2019 and June 2020, the Board remanded the claim for service connection for a respiratory disorder, specifically excluding histoplasmosis, for development. The Veteran was afforded a VA opinion in March 2020, December 2020, and August 2021. After a Supplemental Statement of the Case (SSOC), the claim is back before the Board. No other duty to notify or duty to assist issues have been raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Veteran has a duty to assist and cooperate with VA in developing evidence the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As to the remand, the Board finds that the foregoing reflects substantial compliance with the May 2019 and June 2020 remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will adjudicate the claim currently on appeal. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. As the Veteran, in this case, served in the Republic of Vietnam during the Vietnam era, exposure to herbicide agent has been conceded. See 38 C.F.R. §§ 3.303, 3.307. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to service connection for sinusitis, rhinitis, or a respiratory related condition is denied. The Veteran contends that his respiratory or sinus condition was caused by his exposure to agent orange in Vietnam during the Vietnam War. See NOD received February 2018. Furthermore, he contends that his respiratory condition began in service and has continued until the present. He explains he was treated for respiratory conditions in service including symptoms of headaches, and dizziness which he attributed to sinusitis. His symptoms also included coughing up phlegm and hoarseness. See Form 9 received March 2019. The Board has considered direct service-connection for the entitlement claim for coughing of phlegm, sinusitis, rhinitis, or a respiratory related condition. As for the Veteran's history of histoplasmosis, the Board noted that this condition had been excluded from the claim and will not be addressed below. The Board also considered whether there was a link between the Veteran's current disabilities and his herbicide exposure. However, considering all the evidence in the light most favorable to the Veteran, the Board finds that a link to service is not supported. For direct service connection, first the Veteran must have a current disability. The Veteran's treatment records reflect treatment for sinusitis, and allergic rhinitis. For example, the Veteran provided a form Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, and Larynx completed by his primary care provider. See VA Examination received June 2017. The primary care provider noted that the Veteran was diagnosed with chronic sinusitis and with allergic rhinitis. The Veteran had chronic sinus drainage, irritation of the larynx, hoarseness, and recurrent infections. Id. Therefore, the Veteran has a current disability, and meets the first prong of the test for direct service connection. Next the Board considered whether the Veteran had an in-service event, injury, or disease. The Veteran's service treatment records show that he had some upper respiratory infections, sore throats, and headaches. The Veteran also reported dizziness various times throughout service, although it is noted that examinations appeared to generally find no pathology related to dizziness. For example, in September 1968, a clinical history noted that the Veteran had complaints of dizziness for three months with a negative examination. The service treatment providers were unable to demonstrate any pathology. The Veteran had a normal chest and normal skull radiological examination. See STR-Medical received January 2011, page 83. At discharge, the Veteran had a normal examination with the exception of high frequency hearing loss. His lungs, nose, mouth, and throat were all normal. Id at 95-96. The service treatment records do not otherwise document any respiratory related conditions during active duty service. Exposure to herbicide agents is conceded for those with service in the Vietnam War. Therefore, the Veteran meets the second prong of the test for direct service connection. Even though the Veteran meets the first and second prong of direct service connection, the evidence does not well support any link between his current conditions and any in service event, injury, or disease. In particular, in December 2020, the VA expert opined that it was less likely than not, that current sinusitis and rhinitis was related to service. The medical expert noted that the records do not support ongoing symptoms since service. Additionally, the expert explained that the Veteran had a scan of his sinuses in 2015 with no acute or chronic findings. The VA expert also noted that the Veteran's primary care provider stated the date of diagnosis of chronic sinusitis was the year 2015 and for rhinitis was in 2014. Moreover, while the Veteran has had some acute upper respiratory infections treated with medication, these appear to have resolved with treatment. See C&P Examination December 2020. Then in August 2021, the same VA expert provided an addendum opinion stating that it was less likely than not that the diagnosed maxillary sinusitis or rhinitis was related to the Veteran's active service to include herbicide agent exposure. The expert noted that the Veteran's records were contradictory because he had a clear CT suggesting no acute or chronic findings in the sinus and the Veteran had some normal examination findings. However, the Veteran did have a diagnosis by his private doctor in 2015, but this was 30 years after his time in the service. The Veteran also had some treatment of acute sinus or upper respiratory infections which were treated but appeared to resolve. The expert found, that given the evidence in the record, there was no support for any connection between the Veteran's current sinusitis or rhinitis symptoms and anything in service or agent orange exposure. See C&P Examination August 2021. Otherwise, the Board noted that there was no opinion by any medical providers to support any link or nexus with the Veteran's current symptoms and service. As noted above, the Veteran's private doctor did complete a form Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, and Larynx, and stated that the Veteran's chronic sinusitis was diagnosed in November 2015, and allergic rhinitis was diagnosed in 2014. See VA Examination received June 2017. The Board also considered whether any evidence supported that the Veteran's current conditions began in service and continued until the present, or that the Veteran had ongoing symptoms since service. The Veteran's service treatment records discussed various symptoms or acute conditions that the Veteran had during service. While the Veteran reported symptoms of dizziness or headaches during service, the service treatment records do not show that he was diagnosed with a particular condition like sinusitis or rhinitis. The Board recognizes that the Veteran believes his sinusitis, rhinitis or respiratory related conditions are related to his active duty service. However, he is not competent to provide a medical nexus opinion regarding this issue. The issue is medically complex, as it requires medical knowledge and training. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). While the Veteran can attest to the observable symptomatology of his conditions, he is not competent to diagnose any observed symptoms he may have experienced in service as the same conditions he currently has. Meaning the Veteran may believe that his dizziness, or other symptoms, in service was caused by sinusitis, but there is no competent evidence to support his conclusion. In fact, various examinations occurred in service and the Veteran's complaints of dizziness was not found to be consistently caused by sinusitis or rhinitis. As noted above, in September 1968, the Veteran had complaints of dizziness for three months with negative examinations. Testing even included radiological testing and the service records noted that they were unable to demonstrate any pathology for the symptoms. See STR-Medical received January 2011 Furthermore, the VA medical professionals were unable to relate the Veteran's lay statements regarding symptoms around the time of his active duty service with his presently diagnosed conditions and his primary care provider noted these conditions did not begin until well after service. See VA Examination received June 2017. Similarly, the evidence does not well show the chronicity of the Veteran's current symptoms since service. The records do not show his current conditions have been chronic since service. Continued on Next Page Based on the foregoing, the claim of entitlement to service connection for a sinusitis, rhinitis, and a respiratory related condition is denied. The preponderance of the evidence is against the Veteran's claim; thus, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.