Citation Nr: 21069554 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-11 639 DATE: November 18, 2021 ORDER Entitlement to service connection for an upper respiratory disorder, (other than vasomotor rhinitis) to include as secondary to a bilateral hearing loss disability and/or tinnitus is denied. FINDINGS OF FACT The preponderance of the evidence is against a finding that the Veteran has an upper respiratory disorder, (other than vasomotor rhinitis), to include chronic sinusitis, at any time during the pendency of the appeal, and the Veteran's symptoms of acute sinusitis have not been shown to result in functional impairment of earning capacity. CONCLUSION OF LAW The criteria for service connection for an upper respiratory disorder, (other than vasomotor rhinitis), to include chronic sinusitis, have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from July 1969 to March 1971, with service in the Republic of Vietnam from January 1970 to March 1971. The Veteran was awarded the Combat Infantry Badge and Bronze Star Medal with 1 Oak Leaf Cluster, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2017, the Veteran was afforded a hearing before the undersigned Veteran's Law Judge. A transcript of that hearing is of record. This case was previously before the Board in October 2017. In that decision, the Board remanded the Veteran's claim for further development, particularly for the purpose of obtaining outstanding VA treatment records from 1971 through 1972 and any outstanding medical treatment records pertinent to the Veteran's claim, including chiropractic care received after a 1984 motor vehicle accident. The Veteran was also afforded a VA examination to determine the etiology of his claimed disability. The Board notes that March 2018 Correspondence from the VA indicated that VA treatment records from 1971 through 1972 records were not available. See March 12, 2018 Correspondence. Additionally, although, as directed, the AOJ requested that the Veteran provide, or provide appropriate authorization to obtain any outstanding, pertinent private (non-VA) records, including chiropractic care received after a 1984 motor vehicle accident, there is no identified evidence for which appropriate authorization to obtain has been provided, and neither the Veteran nor his representative has alleged any error or omission in the assistance provided. Id. Hence, the Veteran is not prejudiced by the Board proceeding to a decision on the claims on appeal, at this juncture. Regarding the Veteran's claims of entitlement to service connection for an upper respiratory disorder, to include as secondary to a bilateral hearing loss and tinnitus disability, it is important to note that in an August 2019 rating decision, the Veteran was granted service connection for vasomotor rhinitis. See August 2019 rating decision. Hence, the Veteran's claim of entitlement to service connection for an upper respiratory disorder has been re-characterized as reflected on the title page. In January 2021, the Board remanded this matter, along with the matters of entitlement to service connection for tinnitus and left ear hearing loss for further development. In a subsequent July 2021 rating decision, the RO granted service connection for tinnitus and a left ear hearing loss disability. Therefore, those issues are no longer before the Board. With regards to the issue of entitlement to service connection for an upper respiratory disorder (other than vasomotor rhinitis), the Board remanded the matter in order to obtain an addendum opinion to determine whether the Veteran had an upper respiratory disability separate from the already service-connected disability of vasomotor rhinitis. As discussed below, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271. Entitlement to service connection for an upper respiratory disorder, (other than vasomotor rhinitis) to include as secondary to a bilateral hearing loss disability and/or tinnitus is denied. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when 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 a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2021). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Further, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability deemed proximately due to or the result of a service-connected disease or injury shall be service connected ("secondary service connection"). 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, in the present claim. Although the Veteran's service treatment records do not document any indication of a sinus condition, on his March 1971 report of medical history the Veteran reported experiencing hay fever. Further, the Veteran submitted an email from a physician who observed that the Veteran's 1971 report of "hay fever" was his way of indicating a history of sinusitis and rhinitis. Treatment records in February 2010 and June of 2010 report that the Veteran has a diagnosis of chronic sinusitis. The Veteran has been treated with fluticasone, as recommended by the VA. See February 2010 and June 2010 VA treatment records. August 2014 treatment records show that the Veteran was instructed to continue Nasonex nasal spray for sinusitis and ipratropium. This treatment record also reports that the Veteran continues to undergo immunotherapy. See August 2014 treatment record. In order to determine the nature and etiology of any upper respiratory disability, the Board remanded the matter in October 2017 to afford the Veteran a VA examination with opinion. A March 2019 VA examiner concluded that the Veteran had a diagnosis of vasomotor rhinitis and opined that it was at least as likely as not related to his service. However, he also indicated that there was no objective evidence that the Veteran had chronic sinusitis. See March 6, 2019 Sinusitis, Rhinitis and Other Conditions of the Nose, Throat Larynx and Pharynx examinations, pg. 5. As referenced above in the introduction of this decision, the Veteran is now service connected for vasomotor rhinitis. See August 2019 Rating decision. In its January 2021 decision the Board found it was not clear whether the Veteran has had at any time proximate to or during the course of this appeal, sinusitis. The Board observed that a compensable rating for sinusitis for VA compensation purposes requires one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Board also noted that the Veteran and his representative contended that his chronic sinusitis was getting worse. See December 2020 Appellate Brief, pg. 2. Because of the multiple treatment records indicating a diagnosis of chronic sinusitis, the Board found that a clarifying addendum opinion was required prior to adjudications of this Veteran's claim as it pertains to an upper respiratory disorder (other than vasomotor rhinitis). See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). The Board directed the examiner opine whether the Veteran had an upper respiratory disability, to include chronic sinusitis, but to exclude vasomotor rhinitis, at any time during the appeal. Additionally, the Board directed the examiner that, if necessary, he or she should reconcile any conflicting medical evidence of record, including VA treatment records dated June 9, 2010, February 10, 2010 and August 13, 2014, as referenced above. The Veteran was afforded an addendum opinion in April 2021. However, that examiner merely indicated that: "Veteran had no complaints during service of a sinus disorder. There is no evidence of chronic sinusitis noted in the claims file. A nexus isn't established. It is less likely than is that the veteran's acute episodes of sinusitis are related to any event, injury, or disease that occurred during service. There is no evidence of a chronic condition noted in the claims files. There are only episodes of acute sinusitis which have resolved. A nexus isn't established." No further rationale was provided, and the examiner did not address the VA treatment records as required by the January 2021 remand directives. In order to remedy this defect, an additional addendum opinion was obtained by the RO in September 2021. The examiner explained that the Veteran did not have a chronic upper respiratory other than vasomotor rhinitis and provided the following explanation: "The Veteran's Report of Medical History for Separation dated [March 1971] notes hay fever and shortness of breath when in dusty areas but no sinusitis. The earliest record of sinusitis was from 2004, which was 33 years after the Veteran's discharge from service. While there are several post-service records indicating that the Veteran had chronic sinusitis [including in February 2010 and June 2010], the documentation is more consistent with episodes of acute sinus infections/sinusitis, as there is no evidence to support a diagnosis of chronic sinusitis. Chronic sinusitis is chronic inflammation of the sinus or nasal passages occurring for more than 12 weeks at a time. Either CT or nasal endoscopy confirming the presence of inflammation must be documented to confirm the diagnosis of chronic sinusitis. The Veteran had a CT scan of the sinuses [in May 2013], which showed no mucosal thickening or retention cyst within the paranasal air sinuses. There are no other sinus CT scans or nasal endoscopy results available. Therefore, a nexus has not been established." The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran's statements, to include his assertions that he has chronic sinusitis related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., coughing, shortness of breath; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Given the above, the Board finds the preponderance of evidence is against the claim as the evidence does not show that the Veteran has a current diagnosis of chronic sinusitis which is the cornerstone of a service connection claim. While the Veteran had hay fever during service and has had occasional episodes of acute sinusitis after service, he does not have chronic sinusitis or any other upper respiratory disability, other than vasomotor rhinitis. The Board recognizes that the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, here, the VA examiners did not endorse any functional impairment pertaining to his acute episodes of sinusitis. The Veteran has not argued with any specificity that his acute episodes of sinusitis result in such impairment. In sum, there exists no basis for finding that a threshold of functional impairment of earning capacity has been met. Absent such evidence, there can be no finding of a disability. See Saunders, cited above. Thus, the claim fails on that basis. Accordingly, the Veteran's claim for service connection for chronic sinusitis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.