Citation Nr: 21074099 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-16 603 DATE: December 14, 2021 ORDER Entitlement to service connection for a sinus disorder is granted. REMANDED Entitlement to service connection for allergic conjunctivitis with dry eye syndrome, claimed as a bilateral eye condition, is remanded. Entitlement to service connection for refractive error, claimed as a bilateral eye condition, is remanded. FINDING OF FACT The Veteran's current sinus disorder has been shown to have been incurred in active service. CONCLUSION OF LAW The criteria for service connection for a sinus disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from May 1980 to June 1992. In July 2021, the Veteran testified before the undersigned at a virtual Board of Veterans' Appeals (Board) hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for a sinus disorder The Veteran contends that he suffers from a chronic sinus disorder which developed in service as a result of exposure to various harmful substances. The Board agrees that service connection is warranted, for the reasons discussed below. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the current disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). At the outset, the Board finds that the "current disability" element has been met; the Veteran has been shown to have chronic sinusitis during the appeal period. In June 2016, the Veteran submitted a Disability Benefits Questionnaire (DBQ), authored by a private physician, which reflects diagnoses of chronic sinusitis, rhinitis, and pharyngitis. The DBQ indicated that the Veteran experienced episodes of sinusitis accompanied by headaches and pain and tenderness of the sinuses, characterized by more than seven non-incapacitating episodes over the past 12 months. More recently, an October 2021 VA otolaryngology note reflects a diagnosis of chronic rhinosinusitis with polyps; the note indicates that the Veteran sought treatment every few months for this disorder. The Veteran also submitted an October 2021 letter from a private physician noting a diagnosis of chronic sinus disease. The Board is aware that, in an August 2018 VA Compensation and Pension (C&P) examination report, a VA examiner concluded that the Veteran did not have a chronic sinus disorder but rather experienced only acute episodes of sinusitis. As noted above, the weight of the evidence is not consistent with this finding. Moreover, the VA examiner did not provide a clear explanation for why the Veteran's episodes of sinusitis were best characterized as "acute." As such, the Board will resolve reasonable doubt in the Veteran's favor in concluding that he does have a chronic sinus disorder. As for the "in-service incurrence" element, the Veteran's service treatment records reflect numerous instances of treatment for cold- or flu- like symptoms, to include congestion and headache. There are also specific instances of documented treatment for sinus problems. For example, in December 1985 the Veteran was seen with complaints of sinus drainage, chest congestion, and cough; in January 1988, he complained of sinus congestion and was diagnosed with sinusitis; and on multiple occasions in the early 1990s he sought treatment for congestion, headaches, and similar symptoms. Finally, regarding the "nexus" element, the Veteran has submitted two positive nexus opinions from private physicians, which the Board finds highly probative. The June 2016 DBQ, for instance, reflects the physician's conclusion that the Veteran's exposure to diesel exhaust in cramped spaces with poor ventilation likely resulted in the development of chronic sinusitis (the physician cited service treatment notes reflecting sinus problems as part of the basis for this opinion). More recently, an October 2021 opinion from another physician reflects the physician's determination that the Veteran's chronic sinus disease was at least as likely as not related to his service, again citing the multiple documented instances of sinus-related sick call visits. Furthermore, the Veteran has provided competent and credible lay testimony of both in-service sinus symptoms and continuous symptoms thereafter. There is no probative negative nexus opinion of record. As noted above, the August 2018 VA C&P report concluded that the Veteran did not have a chronic sinus disorder and therefore did not substantively opine as to whether such a disorder was linked to the Veteran's service. In this case, the lay and medical evidence of record demonstrates that the Veteran experienced multiple episodes of sinus-related symptomatology during service. The evidence further shows, notwithstanding the findings of the VA C&P examiner, that the Veteran has a current diagnosis of chronic sinusitis. The Veteran has provided competent and credible lay statements demonstrating ongoing sinus symptoms since service, as well as positive nexus opinions from medical professionals who reviewed the record and determined that it was likely that the Veteran's current sinus disorder was incurred in active service. The Board finds that it is at least as likely as not that the Veteran's current sinus disorder is related to his service. Accordingly, the Board finds that the elements of service connection have been met, and the claim will be granted. As a final matter, the Board notes that the Veteran filed a separate claim for service connection for headaches in October 2021, which has not yet been adjudicated. In November 2021, a VA C&P examiner provided a positive nexus opinion as to this issue, citing an October 1983 service treatment note which reflects a diagnosis of migraine. The evidence of record further demonstrates that the Veteran's sinusitis flare-ups are frequently accompanied by headaches; the June 2016 DBQ identified headaches as a symptom of sinusitis. Although the Board does not currently have jurisdiction over the claim for headaches, the RO, in adjudicating the claim, should consider both the November 2021 positive C&P nexus opinion linking the Veteran's headaches directly to service and the likelihood that the Veteran's headaches are a secondary symptom of sinusitis. REASONS FOR REMAND 2. Entitlement to service connection for allergic conjunctivitis with dry eye syndrome, claimed as a bilateral eye condition 3. Entitlement to service connection for refractive error, claimed as a bilateral eye condition The Veteran contends that his current bilateral eye condition, to include allergic conjunctivitis with dry eye syndrome and vision problems (also characterized as refractive error), originated in service as a result of his exposure to various harmful substances, including chemicals and exhaust fumes. Notably, the Veteran testified at his Board hearing that he first experienced eye-related symptoms in service. He also reported suffering from these symptoms continuously since service, reportedly seeking treatment beginning in the 1990s, shortly after his discharge. The Board is aware that refractive errors, including astigmatism, myopia, hyperopia, and presbyopia, are considered congenital defects, which generally are not diseases for VA compensation purposes. 38 C.F.R. § 3.303(c); see also 38 C.F.R. § 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). Notwithstanding, service connection may be available if such a defect was subjected to a superimposed disease or injury that created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (July 18, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury). Conjunctivitis is not a congenital defect and thus may be service connected in the normal manner. Here, the Veteran has never been afforded a VA examination to determine the nature and etiology of his conjunctivitis with dry eye syndrome, nor is there any competent medical evidence of record that speaks to the nature of his refractive error. The Board further notes that the Veteran is competent to report eye problems in service, and the circumstances of his service corroborate his claims of exposure to harmful substances. In light of the above, the Board finds that a VA eye examination is necessary in this case. See 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006) (describing the circumstances under which VA has a duty to provide a VA medical examination or opinion). The claims will therefore be remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records pertaining to the Veteran, to include all records of treatment dating from October 2021 to the present. 2. Contact the Veteran and request that he provide any outstanding, relevant medical records in his possession regarding his history of treatment for eye-related conditions. If the Veteran has located the address and contact information of any such facilities, he should provide this information to VA by filling out the appropriate authorization forms (such as a VA Form 21-4142) so that VA may attempt to obtain the records. Then make all necessary and reasonable attempts to obtain the records. The Veteran should be notified of all actions in this regard, including if any records are not available. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral eye condition/s, to include allergic conjunctivitis with dry eye syndrome. After reviewing the record, the examiner must respond to the following: (a) Identify any current eye-related diagnoses. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current allergic conjunctivitis/dry eye syndrome began in active service or is otherwise related to active service, to include as due to exposures to harmful substances such as chemicals and exhaust fumes. (Continued on the next page) (c) Opine as to whether it is at least as likely as not that the Veteran's current refractive error was subjected to a superimposed disease or injury in active service that created additional disability. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries, including those that occurred in service, and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinion. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.