Citation Nr: 21074584 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-53 039 DATE: December 15, 2021 ORDER Entitlement to service connection for sinusitis, to include as secondary to service-connected asthma and/or allergic rhinitis, is denied. REMANDED Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for anxiety and panic attacks, claimed as the result of participating in a Chapter 31 vocational rehabilitation training program, is remanded. FINDING OF FACT The preponderance of the evidence does not show the Veteran to have a current diagnosis of sinusitis; his nasal congestion has been attributed to service-connected allergic rhinitis. CONCLUSION OF LAW The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1994 to November 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2017 and August 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board recognizes that the Veteran has not appointed a representative and is proceeding in his appeal pro se. In June 2019, the Board remanded these matters for additional development. The appeal has now returned to the Board for further appellate consideration. With regard to the service connection claim for sinusitis decided herein, the Board notes that additional VA treatment records were associated with the Veteran's claims file subsequent to the issuance of the June 2020 supplemental statement of the case (SSOC). However, this evidence is either not relevant to the Veteran's claim or is duplicative of the existing evidence of record. Therefore, the Board may proceed to adjudicate the claim for sinusitis with no prejudice to the Veteran. Duties to Notify and Assist With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for sinusitis The Veteran seeks service connection for sinusitis, which he contends was caused by in-service exposure to jet fuel fumes and other hazardous chemicals as part of his duties as an airborne mine countermeasures maintenance technician. The Veteran also contends that sinusitis was caused or aggravated by his service-connected asthma and/or allergic rhinitis. Review of the Veteran's VA treatment records show that he has regularly reported symptoms of nasal congestion, sinus discomfort, dry cough, and headaches to his VA physicians during the appeal period. Notably, he has been diagnosed with and treated for allergic rhinitis since approximately July 2015. He is currently in receipt of service connection for asthma and allergic rhinitis with sinus headaches. In April 2016, the Veteran reported to his VA physician that he was concerned he may have chronic sinusitis due to persistent nasal congestion and sinus discomfort. Subsequently, the Veteran underwent a computed tomography (CT) scan of his sinuses. In a May 2016 letter, a VA doctor informed the Veteran of the results of the CT scan, stating: "the CT scan of your sinuses showed slight thickening of your mucous membranes, which can occur with seasonal allergies. Please keep taking your allergy medications as prescribed." In a November 2017 VA otolaryngology note, the Veteran reported bilateral nasal congestion that is worse at night, occasional runny nose and sneezing, and watery eyes. He reported these symptoms occur year-round, but are worse when it is cold. He has headaches between his eyes about twice per week. He also reported allergies to trees, grass, and a variety of other antigens, which he treats with oral medications and nasal sprays. The treating VA physician stated that the Veteran's nasal congestion was due to his allergic rhinitis. The physician also stated, "regarding concern for sinusitis, he has only mild symptoms and findings on CT scan." The physician did not list sinusitis among the Veteran's current diagnoses; however, he did include allergic rhinitis and asthma. A November 2018 letter from the Veteran's VA psychiatrist (concerning an unrelated disability) mentions sinusitis among the Veteran's medical conditions, however, it is clear from the letter that the doctor is basing this finding solely on the Veteran's own reports of having sinusitis, rather than any evidence of a diagnosis in his medical records. According to a January 2020 VA ENT clinic consultation note, the Veteran requested the VA physician to provide a medical statement linking his nasal congestion with his allergic rhinitis, which the doctor provided. In a May 2020 letter, a different VA physician provided a letter to VA in support of an unrelated claim for sleep apnea. In the letter, the doctor listed asthma and allergic rhinitis among the Veteran's current diagnoses; a diagnosis of sinusitis was not documented. The doctor then stated that the Veteran "wants it documented that his allergy symptoms make him congested all the time." The Veteran has been afforded five VA respiratory conditions examinations: in January 2013, September 2015, June 2016, November 2016, and March 2020. At each of these examinations, the Veteran has never been found to have a diagnosis of sinusitis. Rather, his reported symptoms of nasal congestion, headaches, runny nose, watery eyes, and sneezing has always been attributed to his allergic rhinitis and/or seasonal allergies. Based on a careful review of all of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for sinusitis is warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the preponderance of the medical evidence of record does not reflect a current diagnosis of sinusitis, and no such diagnosis has been officially confirmed at any time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In making this finding, the Board acknowledges that the record contains a few references to sinusitis; however, it is clear that these notations are based solely on the Veteran's own reports of having sinusitis. Significantly, five VA examiners have determined that the Veteran has no history or current diagnosis of chronic or recurrent sinusitis. Moreover, the medical evidence of record clearly documents that the Veteran's symptoms of nasal congestion and sinus pressure/headaches are symptoms of his service-connected allergic rhinitis. Finally, the Veteran himself has reported to his VA physicians that his nasal congestion is due to his allergies or rhinitis. Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1110. In the absence of proof of current disability there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. Thus, in the absence of competent medical evidence showing a current diagnosis of sinusitis, it is unnecessary to address the remaining elements of the claim for service connection. See id. Finally, while the Veteran is competent to report symptoms of disability, he does not have the specialized medical training to render a diagnosis of sinusitis. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, the Veteran has not provided any other competent or credible evidence of the existence of a current diagnosis of sinusitis other than his unsupported lay contentions of having the medical condition. Accordingly, the Board finds that a preponderance of the evidence weighs against the Veteran's claim for service connection for sinusitis. Because the evidence fails to establish that the Veteran has a current diagnosis of sinusitis, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Unfortunately, the claim remaining on appeal must be remanded once again because the RO did not substantially comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand). Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for anxiety and panic attacks, claimed as the result of participating in a Chapter 31 vocational rehabilitation training program, is remanded. As an initial matter, the Board notes that subsequent to the June 2020 SSOC, medical evidence pertinent to the claim, to specifically include an August 2020 VA mental disorders examination report, was associated with the claims file. However, the RO did not issue another SSOC as required by 38 C.F.R. §§ 19.31, 19.37. As such, remand is required for the RO to readjudicate the claim, with specific consideration of any additional evidence received since the June 2020 SSOC. The Veteran contends that he began having anxiety and panic attacks as a result of his participation in a vocational rehabilitation program under Chapter 31 of Title 38 of the United States Code (Chapter 31). Chapter 31 provides for the training and rehabilitation of veterans with service-connected disabilities. The Veteran asserts that after he began vocational rehabilitation in May 2015, he enrolled in an MBA Healthcare Management program and he began experiencing anxiety and panic attacks due to the stress he experienced while taking classes and completing assignments. VA treatment records document that in August 2015, the Veteran was admitted to the emergency department for suspected anxiety and panic attacks. He reported at the time that he was working on a paper for class and was under a lot of stress; he was subsequently prescribed medication to treat anxiety. Three days later, it was noted that the Veteran was referred to the mental health clinic in order to establish care for "anxiety likely due to work, family, and school stressors." In October 2015, the Veteran underwent an initial psychiatric assessment at which time he reported experiencing a lot of recent stressors, to include involvement in an MBA program that takes up a lot of his time, as well as multiple uncontrolled medical problems. The VA psychiatrist noted that the Veteran "has been experiencing anxiety, poor sleep, anhedonia, decreased motivation and concentration in the setting of multiple stressors. [He] is likely experiencing multiple different small stressors that are adding up to making his daily life more challenging, consistent with adjustment disorder in the setting of increased workload from school, not fully controlled medical problems, and family and work stressors." Under 38 U.S.C. § 1151, veterans disabled by vocational rehabilitation may receive compensation for a qualifying additional disability as if the additional disability were service-connected. See 38 U.S.C. § 1151(a). A disability is a "qualifying additional disability" if the disability was (i) not the result of the veteran's willful misconduct; and (ii) proximately caused by the provision of training and rehabilitation services as part of an approved rehabilitation program under Chapter 31. 38 U.S.C. § 1151(a)(2). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the training and rehabilitation services upon which the claim is based to the veteran's condition after such services have stopped. 38 C.F.R. § 3.361(b). In its June 2019 remand, the Board directed the RO to obtain a VA medical opinion to ascertain whether the Veteran suffered any additional psychiatric disability that was proximately caused by his participation in a VA vocational rehabilitation program. In March 2020, a VA examiner provided an opinion stating that in the absence of mental health records from before the Veteran began the vocational program, she is unable to compare records; therefore, it would require speculation to try to assess, without documentation, if any additional psychiatric disability occurred. In a separate opinion provided two days later, the same VA examiner again stated that it is unclear from the record exactly what the Veteran's baseline anxiety was before he started his coursework and it would require speculation to assess if participating in the MBA program accelerated the progression of his anxiety. Notably, the examiner failed to discuss the significance of the August 2015 VA records detailing the Veteran's presentation to the emergency department with symptoms of anxiety and panic attacks, which he attributed to stress caused by his MBA coursework. Instead, the examiner erroneously stated that the Veteran initially presented for mental health treatment in 2018. The Board finds the March 2020 opinions to be inadequate. First, the examiner failed to provide a sufficient explanation for why the absence of mental health records prior to the Veteran's participation in vocational rehabilitation prevent her from providing an etiology opinion without resorting to speculation. Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010) (holding an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has considered all procurable and assembled data and offered a reasoned basis for this conclusion). It is clear from the record that the Veteran had never sought mental health treatment prior to August 2015, as evidenced by the August 2015 VA treatment note in which the Veteran was referred to the mental health clinic "in order to establish care." In the Board's view, this alone is compelling evidence that the Veteran may have had "additional disability" when he presented for emergency care in August 2015. Because the VA examiner did not consider these pertinent treatment records, and erroneously stated that the Veteran initiated mental health treatment in 2018, the opinion is based on an incomplete review of the evidence and, thus, is inadequate. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Finally, the Board notes that a medical opinion using the correct legal standard of "at least as likely as not" has not yet been obtained. In light of the above, the Board finds that the record still does not contain a medical opinion that is adequate to allow the Board to fairly adjudicate the Veteran's claim. As such, the claim must be remanded once again because the RO did not comply with the Board's prior remand directives to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 271. On remand, an addendum medical opinion must be obtained from a qualified VA examiner that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matter is REMANDED for the following actions: 1. Forward the Veteran's claims file to a qualified VA examiner, who has not yet provided an opinion in this case, to provide an addendum medical opinion with regard to the Veteran's claim for compensation benefits pursuant to 38 U.S.C. § 1151. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not that the Veteran sustained additional psychiatric disability that was (i) not the result of the Veteran's willful misconduct; and (ii) proximately caused by his participation in a Chapter 31 vocational rehabilitation training program? In addressing the above, the examiner must comment on the Veteran's psychiatric condition immediately prior to receipt of VA vocational rehabilitation services, and compare those findings, if any, to the psychiatric condition after the VA completion of VA vocational rehabilitation services. It is imperative that the requested opinion consider and discuss the significance, if any, of the August 2015 VA medical records detailing the Veteran's treatment for anxiety and panic attacks in the emergency department, as well as the October 2015 VA psychiatric assessment in which the Veteran was diagnosed with adjustment disorder due to multiple life stressors, including school. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must set forth a complete rationale for any conclusion reached, citing to the examiner's clinical experience, medical expertise, and established medical principles, as well as evidence in the Veteran's claims file, as necessary. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. After the requested development has been completed, readjudicate the issue on appeal with consideration of all evidence associated with the claims file since the June 2020 SSOC. If the benefit sought on appeal remains denied, issue an SSOC and allow the appropriate time for response before returning the case to the Board for further appellate review. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.