Citation Nr: 21071142 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-42 375 DATE: November 29, 2021 ORDER Entitlement to service connection for an upper respiratory disorder, to include allergic rhinitis and sinusitis, is denied. FINDING OF FACT 1. The Veteran's pre-existing allergic rhinitis was noted upon entry. 2. The Veteran's pre-existing allergic rhinitis was clearly and unmistakably not aggravated beyond natural progression by active service or by his service-connected obstructive sleep apnea (OSA). 2. The preponderance of the evidence of record is against finding that the Veteran has had sinusitis at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for an upper respiratory disorder, to include allergic rhinitis and sinusitis, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to September 2007. This matter is on appeal to the Board of Veterans' Appeals (Board) from a September 2015 rating decision. A hearing was conducted in November 2019 by the undersigned Veterans Law Judge. The claim was remanded by the Board for further development in December 2019 and June 2021. The Board finds that the June 2021 remand directives have been complied with. The Veteran filed a claim to reopen for service connection for sinusitis in July 2015; the Board has expanded the claim as one for service connection for an upper respiratory disorder, to include allergic rhinitis and sinusitis, to comport with Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim). The Veteran testified that he believes his pre-existing allergies and/or sinusitis were aggravated by service due to environmental exposures working in the engine room and boiler room. He also asserted that such is related to his service-connected sleep apnea. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Here, the service treatment records (STRs) show that the Veteran indicated "hay fever" on his enlistment report of medical history. The doctor noted "allergic rhinitis." This condition was clearly and unmistakably noted upon entry; thus, the Board finds that the Veteran had a pre-existing condition of seasonal allergies, or allergic rhinitis. Therefore, the primary issue is whether the pre-existing condition was aggravated by service. A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air 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; 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an 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). Under 38 C.F.R. § 3.380, seasonal and other acute allergic manifestations subsiding on the absence or removal of an allergen are generally to be regarded as acute diseases, healing without residuals. However, 38 C.F.R. § 3.380 also instructs that some diseases of allergic etiology may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to the existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Additionally, increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Determination as to service incurrence or aggravation must be on the whole evidentiary showing. While the Veteran's allergies appear to be seasonal and, in other words, an acute disease without residuals, the Board will consider whether there is an increase in service, and, if so, whether his allergies were clearly and unmistakably not aggravated beyond natural progression by service. The STRs show multiple indications by the Veteran of hay fever, accompanied by physician notations of "seasonal hay fever" or "seasonal allergies." In October 1989, he received treatment for nasal congestion, coughing, sneezing, and headaches for two days. There was no sinus tenderness, though enlarged tonsils and lymph nodes were indicated. The assessment was an upper respiratory infection or pharyngitis. He was prescribed medication and scheduled for a follow-up visit. On his separation report of medical history, the Veteran indicated emergency room visits due to "seasonal allergies" and "sinus congestion." The post-service treatment records reflect ongoing prescription medication for allergies and/or sinusitis. In his hearing, the Veteran explained that his allergies were aggravated in service by the constant asbestos and chemical exposure in the engine room, as well as servicemembers smoking near him frequently. He continues to experience symptoms such as face swelling, a runny nose, and sinus headaches. He indicated that his VA doctor believed that the Veteran's current condition began in service, though there is no indication of such in the VA treatment records. In a March 2008 VA examination report, the Veteran reported a long history of seasonal allergies since childhood. At the time, he was not taking any antihistamines or treatment for his allergies. He denied antibiotic use or purulent discharge. He stated he had no trouble breathing through his nose, and no pain or associated headaches. He had some dyspnea with exertion but none at rest. On physical examination, the nares were patent without significant obstruction, septal deviation, polyps, or enlarged turbinates. The maxillary and frontal sinuses were nontender. The examiner found the Veteran had seasonal allergic rhinitis that was present prior to service and not aggravated by military service. In a February 2020 VA examination, the Veteran reported "sinus issues" since the beginning of his military career. During active duty, his symptoms were triggered by chemicals he was exposed to in the engine room. He was currently being treated with allergy medication. He endorsed being treated with antibiotics in the past though not currently. He reported being evaluated by an ear, nose, and throat (ENT) doctor while in service but not since. The examiner concluded that the Veteran did not have a sinus, nose, throat, larynx, or pharynx condition. He referenced a 2018 MRI that showed "clear maxillary, ethmoid, frontal and sphenoid sinuses." A sinus series in 2013 showed "The sinuses are clear. No bony abnormality is seen. Dental Hardware is present. Nasal septum is midline." The examiner indicated that both these findings showed normal sinuses. An addendum opinion was obtained from the same examiner in October 2020 to determine if sinusitis was caused or aggravated by OSA. Another examination was conducted by the same examiner in August 2021. The Veteran reported being treated with daily medication and being constantly congested with headaches. He reported nasal discharge. He reported no use of antibiotics. The examiner again found no diagnosis of sinusitis. He referenced the 2013 x-ray and 2018 MRI, as well as additional sinus x-ray series conducted at the time of the examination that were normal. The examiner explained that the Veteran has had allergies since childhood. There is no objective evidence that his childhood allergies were aggravated, in any measurable way, beyond natural progression of its condition by either service or OSA, as demonstrated by radiographic findings in 2013, 2018, and 2021 that show normal nasal passageways, as well as the absence to referral to allergist or immunotherapy for allergy shots. Even assuming the in-service complaints of hay fever, sinus trouble, and seasonal allergies represent an increase in service, the probative medical evidence of record establishes that the pre-existing allergies were clearly and unmistakably not aggravated beyond natural progression by service. While the VA examiner in his 2021 opinion did not expressly use the language of clear and unmistakable, he unequivocally explains that the objective radiographic findings, as well as the absence of referral to an allergist or immunotherapy, show no aggravation, either by service or OSA. While there is no available study at enlistment to compare to the Veteran's post-service studies, the normal findings of the post-service studies necessarily indicate that no demonstrable aggravation occurred. Based on the totality of the evidence, the Veteran's pre-existing allergic rhinitis was not aggravated beyond natural progression by service or OSA. Regarding sinusitis, the medical evidence is conflicting over whether a current diagnosis exists. A current disability diagnosed at any point within the appeal period, even if the disability resolves during the appeal period (becomes asymptomatic) may be subject to service connection. See McClain v. Nicholson, 21 Vet. App. 219 (2007). The STRs reflect inconsistent reports of sinusitis or sinus problems by the Veteran in reports of medical history throughout service. At times, he indicated "yes" to both "hay fever" and "sinus problems," and other times, only "hay fever." As stated above, the Veteran was treated for nasal congestion and other symptomatology in October 1989; nontender sinuses were noted and he was assessed to have either an upper respiratory infection or pharyngitis. In September 2001 the Veteran was cleared for an overseas assignment; he checked yes for "sinus" problems and explained that he has seasonal allergies mostly during spring that are controlled with over-the-counter medication. In his separation report of medical history, the Veteran indicated "yes" for sinusitis. He indicated he had ENT trouble which were the "results of seasonal allergies." He indicated he had received emergency treatment for "sinus congestion." In the comments section, it was indicated that he had no chronic diseases and was in excellent health. The post-service VA treatment records reflect sinusitis as a diagnosis on his active problem list accompanied by prescribed medication, but also note no current significant sinus disease. A January 2013 record notes interval ER visits at Sacred Heart for sinusitis. The Veteran recalled the first episode on active duty. In July 2015, the Veteran reported having "sinus issues" the prior two weeks; he was prescribed an antibiotic. In September 2015, the Veteran reported that his sinusitis had not cleared up completely and he requested a refill of his antibiotic. The Veteran reported in his hearing that he was diagnosed with sinusitis in approximately 2009 by Dr. B. at Sacred Heart Hospital; unfortunately, Dr. B. was no longer in practice and the records were unavailable. The Veteran has also stated in correspondence that his STRs show onset of sinusitis, to include on his separation medical examination report. The March 2008 VA examination did not render a sinusitis diagnosis; as stated above, physical examination showed nares present without significant obstruction, septal deviation, polyps, or enlarged turbinates. The maxillary and frontal sinus area were nontender to percussion. The February 2020 examiner explained that there is insufficient evidence to warrant or confirm a diagnosis of an acute or chronic sinus condition or its residuals. No medical opinion can be rendered as no condition is diagnosed. It was a normal examination, and radiography demonstrated normal sinuses. The Veteran declined current imagery at the time. An addendum opinion was obtained from the same examiner in October 2020 to determine if sinusitis was caused or aggravated by OSA. The examiner indicated that the Veteran is being treated with allergy medication that he named sinusitis. He further stated that while the Veteran is credible to report symptomatology, he is not qualified to make a medical diagnosis or discuss medical nexus. Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence" that a condition existed, particularly when the objective evidence available contradicts the statement. Allergies are not the same as sinusitis, and sleep apnea does not cause sinusitis or vice versa. Contrary to popular belief, there is no scientific evidence supporting the notion that sinusitis causes OSA or vice versa. OSA cannot aggravate a non-existent condition. Another examination was conducted by the same examiner in August 2021. The Veteran reported being treated with daily medication and being constantly congested with headaches. He reported nasal discharge. He reported no use of antibiotics. The Veteran recalled being diagnosed with sinusitis in 2009 at Sacred Heart Hospital, but he did not recall how the diagnosis was formulated. The examiner again found no diagnosis of sinusitis. He referenced the 2013 x-ray and 2018 MRI, as well as additional sinus x-ray series conducted at the time of the examination that were normal. He explained that the gold standard to establish a diagnosis of chronic sinusitis is an MRI/CT scan, and the 2018 MRI was normal. When specifically asked how many episodes of chronic sinusitis the Veteran has had since 2015, he stated none. Review of the treatment records demonstrate that the Veteran has really been treated with allergy medications for a condition that pre-existed service. The examiner addressed the recent notation of sinusitis by his primary medical provider and reiterated that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence" that a condition existed, particularly when the objective evidence available contradicts the statement. Contrary to popular belief, there is no scientific evidence supporting the notion that sinusitis causes OSA or vice versa. OSA cannot aggravate a non-existent condition. Upon careful review of all the evidence, the Board concludes that there is no current diagnosis of sinusitis at any time throughout the pendency of the appeal. The Board acknowledges the notation of a diagnosis in previous Board and rating decisions in finding the evidence warranted reopening and remand; however, the existence of a current disability is a medical determination, and the medical evidence of record is conflicting. It is the Board's duty to evaluate the competency and probative value of medical evidence. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1991); Owens v. Brown, 7 Vet. App. 429, 433 (1995). While the STRs note sinus problems sporadically, these notations are indicated by the Veteran himself. There are no clinical findings of sinusitis made by medical providers, nor is there evidence of radiology findings of sinusitis in service. The Veteran is competent to relay his symptomatology under 38 C.F.R. § 3.159 (a)(2) because he has personal knowledge of those facts. However, there is no indication in the record that he is competent to render such a medical diagnosis, particularly considering that the diagnosis is made through radiographic imagery testing. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has also considered the Veteran's testimony that he was diagnosed with sinusitis in approximately 2009 by a private physician. The Board has no reason to question the Veteran's credibility; nevertheless, it is unwilling to find that the element of a current disability is met in this circumstance, based on a statement that a diagnosis was made prior to the initiation of the appeal without records. The Board acknowledges the unavailability of the records by no fault of the Veteran. However, particularly considering the objective radiographic findings of no diagnosis within the appeal period, as well as the Veteran's testimony that he was unsure how the 2009 diagnosis was rendered, the Board does not afford probative value to the Veteran's statement of the existence of a previous diagnosis. The post-service treatment records reflect sinusitis generally as an active diagnosis, and show prescribed allergy medication, but there are no clinical findings of a diagnosis rendered by a medical provider. Rather, the notation of the diagnosis appears to be from the Veteran's testimony of a prior diagnosis in 2009 by a private provider. The VA opinions of record, on the other hand, are based on clinical findings and thorough examination by interview and physical examination of the Veteran and review of the available medical records. According to the VA examiner, the gold standard for diagnosing sinusitis is by MRI. The 2018 MRI shows no sinusitis, nor do 2013 and 2021 x-rays. In light of the above, the Board finds that the objective findings and most probative medical evidence weigh against the existence of a current disability of sinusitis. Because the Veteran does not have sinusitis, it could not be aggravated by in-service environmental factors nor by OSA. The Veteran does not meet the first element required for service connection for sinusitis. Because the Veteran's pre-existing allergic rhinitis was clearly and unmistakably not aggravated by service, and there is no current diagnosis of another upper respiratory disability, his claim must be denied. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.