Citation Nr: 21074456 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-28 606 DATE: December 15, 2021 ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for residuals of a rhinoplasty/turbinoplasty is denied. REFERRED The issue of entitlement to service connection for a dental disability for treatment purposes only has been raised by the record, but this issue does not appear to have been adjudicated. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. Specifically, the RO should refer the claim for dental treatment to the appropriate VA Medical Center. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had chronic sinusitis and/or residuals of a rhinoplasty/turbinoplasty at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW The criteria for service connection for sinusitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. The criteria for service connection for residuals of a rhinoplasty/turbinoplasty are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from March 1981 to December 2000. He served honorably in the United States Navy, including sea service in Southwest Asia during the Persian Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Procedural Background The issues of entitlement to service connection for obstructive sleep apnea, periodontal disease, sinusitis, and residuals of a rhinoplasty/turbinoplasty were previously before the Board in July 2019, when the Board denied entitlement to service connection for obstructive sleep apnea and periodontal disease and remanded the issues of entitlement to service connection for sinusitis and for residuals of a rhinoplasty/turbinoplasty. The Veteran appealed the denial of his obstructive sleep apnea and periodontal disease claims to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, granting a June 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the decision on the obstructive sleep apnea and periodontal disease claims consistent with the terms of the JMPR and dismissed the appeal as to the remaining issues. With respect to the claim for service connection for periodontal disease, the parties to the JMPR explicitly noted the parties did not intend to disturb the portion of the Board's July 2019 decision that denied service connection for periodontal disease for compensation purposes. Rather, the parties to the JMPR noted that the underlying claim for service connection for compensation had been adjudicated by the RO in its March 2016 rating decision but that the issue of service connection for treatment had been raised by the record but not yet adjudicated. See Mays v. Brown, 5 Vet. App. 302, 304-306 (1993) (finding that the Board must address service connection for a dental condition as both a claim for compensation and a claim for treatment when the issue is reasonably raised). The case was returned to the Board for further appellate review and readjudication consistent with the terms of the JMPR. In November 2020, the Board remanded both claims for additional evidentiary development. The Board recharacterized the dental claim as "entitlement to service connection for periodontal disease for outpatient dental treatment purposes as a Class II dental disorder." Subsequently, in an April 2021 rating decision, the RO granted the claim of entitlement to service connection for obstructive sleep apnea. Claims on Appeal As noted above, the claim of entitlement to service connection for obstructive sleep apnea was granted by the RO in its April 2021 rating decision. Because the RO's actions constitute a full grant of benefits sought by the Veteran, the claim is no longer on appeal before the Board. Regarding the Veteran's claim seeking entitlement to service connection for periodontal disease for outpatient dental treatment purposes as a Class II dental disorder, the Board notes that the RO did not take action to refer the claim to the proper Agency of Original Jurisdiction (AOJ)/VA Medical Center. Accordingly, the issue is referred again for appropriate action. The only claims that remain on appeal before the Board at this time are (1) entitlement to service connection for sinusitis and (2) entitlement to service connection for residuals of a rhinoplasty/turbinoplasty. The Board finds that the RO has substantially complied with its July 2019 Remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47. Thus, the Board finds that these claims are ready for appellate review. SERVICE CONNECTION The Veteran is seeking entitlement to service connection for sinusitis and for residuals of a rhinoplasty/turbinoplasty. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In this case, service connection is not warranted because there is no evidence that the Veteran has current diagnosis of chronic sinusitis or any residuals of a rhinoplasty/turbinoplasty. Likewise, the evidence of record does not demonstrate that the Veteran had diagnoses of these claimed disabilities when he filed his claim or at time during the pendency of the appeal. At an October 2020 VA examination, the Veteran reported that he began experiencing frequent episodes of sinus congestion when he wore gas masks during his Persian Gulf deployment; that he had surgery on his nose after coming back from that deployment; and that he has been having ongoing sinus problems since military service, to include constant nasal congestion and difficulty breathing through his nose. He also indicated that his onset of treatment involved nasal surgery. He mentioned that he wanted to get nasal reconstructive surgery but never got around to it. He indicated that he was frequently diagnosed with sinus infections or allergies and given medications to control his symptoms. After reviewing the evidence of record and conducting a thorough evaluation of the Veteran, the VA examiner diagnosed the Veteran as having allergic rhinitis. However, the examiner did not find that the Veteran had sinusitis or any residuals of his rhinoplasty/turbinoplasty operations. The examiner noted that a February 1996 sinus x-ray showed three views of the paranasal sinuses and mild deviation of the nasal septum but that the study was otherwise normal. Likewise, the examiner noted that a current x-ray from October 2020 showed three views of the paranasal sinuses and revealed no opacification, mucosal thickening, or air-fluid levels. The examiner also indicated that no bony of soft tissue pathology was seen on the film and that there was no evidence for sinusitis. In an addendum opinion, the examiner provided additional clarification that the Veteran had previously experienced acute sinusitis but that the condition was not chronic. The examiner indicated that the Veteran's current nasal/respiratory disorder was allergic rhinitis. Under these circumstances, the Board concludes that the Veteran does not have a current diagnosis of sinusitis or any residuals of a rhinoplasty/turbinoplasy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran may believe that he has a current diagnosis of sinusitis or a residual disability resulting from a prior nasal operation, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence than to the Veteran's lay statements. There is no other medical or lay evidence which indicates a diagnosis of sinusitis and/or residuals of a rhinoplasty/turbinoplasty proximate to the Veteran's claim for service connection. While the Veteran may have experienced sinusitis or sinusitis symptoms since he separated from military service, the October 2020 VA examiner opined that these episodes were acute and were not indicative of chronic sinusitis. Likewise, the examiner compared x-rays from 1996 and 2020 and found that the Veteran essentially had a "negative paranasal sinus exam." The examiner found that the Veteran had allergic rhinitis (which may have accounted for his symptoms) but that he did not have chronic sinusitis or residuals of his past nasal operations. As there is no current disability, there can be no valid claim for service connection. McClain, 21 Vet. App. at 321; Brammer v. Derwinski, 3 Vet. App. 223 (1992). Entitlement to service connection for sinusitis and residuals of a rhinoplasty/turbinoplasty is therefore denied. 38 C.F.R. §§ 3.102, 3.303. Without evidence of the claimed nasal/respiratory disabilities, the Board need not address the other elements of service connection. As a final matter, the Board notes that the Veteran is already in receipt of service connection for allergic rhinitis, deemed 0 percent disabling (noncompensable) from March 26, 2015. Thus, even if service connection were granted for chronic sinusitis or residuals of a rhinoplasty/turbinoplasty, any symptomatology associated with the Veteran's service-connected allergic rhinitis cannot be considered in evaluating the severity of the disability, as such would constitute pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). That said, if the Veteran believes that his service-connected rhinitis has worsened or that his allergic rhinitis symptoms have increased in severity, he is encouraged to file an increased rating claim with the RO. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.