Citation Nr: 21007846 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-58 371A DATE: February 10, 2021 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for allergic rhinitis is granted. REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to service connection for ear fullness with pain is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bronchitis is remanded. Entitlement to service connection for a right ear hearing loss disability is remanded. Entitlement to service connection for a sinus headache disability is remanded. FINDINGS OF FACT 1. The Veteran’s recurrent acute sinusitis had its onset in service and has continued since service. 2. The Veteran’s allergic rhinitis had its onset in service and has continued since service. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have been met. U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for allergic rhinitis have been met. U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to December 1990. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a July 2017 hearing. The transcript of the hearing is of record. A January 2019 Board decision remanded the issues on appeal for further development. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). When there are conflicting statements or opinions from medical professionals, it is within the Board’s province to weigh the probative value of those opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). Moreover, the Board may give greater probative weight to one examiner’s opinion over another’s based on its reasoning and whether the examiner reviewed prior clinical records and other pertinent evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, “the preponderance of the evidence must be against the claim.” Id. at 54. 1. Entitlement to service connection for sinusitis The Veteran contends that her sinusitis began in service after she was exposed to mold. The Board concludes that the Veteran has a current diagnosis of recurrent acute sinusitis that began during active service and that service connection is therefore warranted. 38 C.F.R. § 3.303(d). May 1990 service treatment records show treatment for flu-like symptoms, including a stuffy head. July 1990 service treatment records noted stomach pain and headache. August 1990 service treatment records show treatment for abdominal pain. September 1990 service treatment records show complaints of congestion, earache and runny nose. The provider diagnosed a sinus infection and prescribed antibiotics. The November 1990 separation examination was silent for sinus complaints. The Board notes that the January 2019 Board decision found the July 2014 and August 2016 VA examinations to be inadequate. They will therefore not be addressed herein. February 2019 private treatment records show a diagnosis of acute recurrent maxillary sinusitis. The provider noted that the Veteran was allergic to molds. A November 2016 VA opinion found that sinusitis was not due to asbestos inhalation, stating as a rationale that there was no evidence of sequelae of asbestos inhalation and no evidence of a causal relationship between asbestos and sinusitis. The Board notes that the opinion did not address the question of onset. A June 2017 private opinion found that the Veteran’s sinus problems began in service and continued after service, and that mold sensitivity was exacerbated by service and likely contributed to her repeated episodes of sinusitis. As a rationale, the provider cited the May 1990, August 1990 and September 1990 service treatment records noted above as well as the Veteran’s lay statements regarding mold in her quarters. The provider also noted 14 episodes of treatment with antibiotics between 2006 and 2017, mostly for clinical diagnosis of sinusitis, as well as a positive allergy test for mold mix. Based on this record, the provider opined that the Veteran’s sinus problems “started up during her military service” and she had recurring episodes of sinus infection after service. A March 2019 VA examination diagnosed recurrent acute sinusitis and noted onset of symptoms in May 1990. The examiner found that the disability was not likely due to service, stating as a rationale that while the Veteran was allergic to mold, exposure in service would not cause symptoms unless the Veteran was currently exposed to mold. The examiner opined that the sinus infection could be due to reflux from sleep apnea or to the Veteran’s deviated septum and daily use of Sudafed. The examiner did not provider an opinion regarding the onset of the Veteran’s disability. A May 2020 VA opinion found that the Veteran’s sinusitis was not likely due to mold exposure in service. As a rationale, the provider stated that there was no documentation that the Veteran complained of or was treated for sinusitis or was exposed to mold during service, and sinusitis was therefore not likely due to service. The Veteran submitted a July 2020 private opinion from the same provider who gave the June 2017 private opinion. The opinion noted the May 2020 opinion and its finding that there was no mold exposure in service. However, the provider disagreed, noting that there were no sinus or allergy problems prior to service and the Veteran’s report of mold sensitivity while stationed in Germany was “highly plausible.” The provider specifically noted that “the documentation of sinus problems started in 1990 and has been ongoing since that time,” noting pressure, congestion and numerous treatments for episodes of sinusitis. The Board finds that the private and VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the July 2017 Board hearing, the Veteran testified that her sinus issues began when she was stationed in Germany and have continued to the present. She reported that she began to have symptoms in May 1990, specifically reporting congestion, earache, coughing and nausea, as well as cramping in her side from repeated coughing. She reported that symptoms continued into September and that she was finally diagnosed with sinusitis. She also reported that her symptoms continued after service and that she goes to the doctor at least three times per year for antibiotics due to her sinus issues. The Board notes that the Veteran is competent to report lay observable symptoms such as a runny nose and congestion as well as treatment she receives and accords her statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds her to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the Veteran’s recurrent acute sinusitis had its onset during active service. Service treatment records show symptoms of congestion, runny nose, earache and headache as well as a diagnosis of sinus infection and treatment with antibiotics. The competent lay evidence of record indicates that the Veteran’s symptoms persisted after service. Based on this history as well as the Veteran’s ongoing treatment for sinusitis, the June 2017 and July 2020 private opinions found that the Veteran’s recurrent sinusitis began in service and had been ongoing since that time. The November 2016 and March 2019 VA opinions did not address the question of onset and are therefore not inconsistent with this finding. The Board acknowledges that the May 2020 VA opinion found that the Veteran did not have sinusitis in service. However, the opinion did not reconcile this finding with the September 1990 diagnosis of sinus infection, and the opinion is silent for any indication that the provider considered the May 1990 service treatment records of congestion and flu-like symptoms. The Board therefore assigns more weight to the June 2017 and July 2020 private opinions, as they specifically reference and discuss the significance of the Veteran’s in-service symptoms. The Board therefore finds that the preponderance of the competent evidence of record indicates that the Veteran’s acute recurrent sinusitis had its onset during service and has continued since service. Service connection is therefore warranted. 2. Entitlement to service connection for allergic rhinitis The Veteran contends that her allergic rhinitis began in service after she was exposed to mold. The Board concludes that the Veteran has a current diagnosis of allergic rhinitis that began during active service and that service connection is therefore warranted. 38 C.F.R. § 3.303(d). May 1990 service treatment records show treatment for flu-like symptoms, including a stuffy head. July 1990 service treatment records noted stomach pain and headache. August 1990 service treatment records show treatment for abdominal pain. September 1990 service treatment records show complaints of congestion, earache and runny nose. The provider diagnosed a sinus infection and prescribed antibiotics. The November 1990 separation examination was silent for allergy complaints. The Board notes that the January 2019 Board decision found the July 2014 and August 2016 VA examinations to be inadequate. They will therefore not be addressed herein. April 2013 private treatment records show a diagnosis of allergic rhinitis and treatment with allergy medication. A May 2013 private opinion found that the Veteran had allergic rhinitis with recurrent sinusitis. The provider also opined that she “may have suffered from allergy symptoms while in the military and been unaware of it.” June 2017 private records show that allergy testing was performed and showed that the Veteran was significantly positive to mold spores. The provider diagnosed perennial allergic rhinitis due to mold and prescribed allergy medication. A June 2017 private opinion found that the Veteran’s allergic rhinitis symptoms began in service and continued after service. As a rationale, the provider cited the May 1990, August 1990 and September 1990 service treatment records noted above as well as the Veteran’s lay statements regarding mold in her quarters. The provider noted a May 2017 diagnosis of likely allergic rhinitis as well as June 2017 allergy testing that was positive for mold mix but negative for all the other individual allergens. Based on this record, as well as the lack of a history of nasal symptoms prior to service, the provider opined that the Veteran’s problems “started up during her military service.” A March 2019 VA examination diagnosed recurrent allergic rhinitis and noted onset of symptoms in May 1990. The examiner found that the disability was not likely due to service, stating as a rationale that while the Veteran was allergic to mold, exposure in service would not cause symptoms unless the Veteran was currently exposed to mold. The examiner opined that the allergic rhinitis could be due to reflux from sleep apnea or to the Veteran’s deviated septum and daily use of Sudafed, noting that when nasal passages become accustomed to Sudafed it makes allergic rhinitis very hard to treat. The examiner did not provider an opinion regarding the onset of the Veteran’s disability. A May 2020 VA opinion found that allergic rhinitis was not likely due to sleep apnea or a deviated septum. As a rationale, the provider stated that there was no medical rationale correlating sleep apnea or a deviated septum with the development of allergic rhinitis. The provider did not offer an opinion regarding onset. Another May 2020 VA opinion found that the Veteran’s mold allergy was not likely due to mold exposure in service. As a rationale, the provider stated that there was no documentation that the Veteran complained of or was treated for mold sensitivity or was exposed to mold during service, and mold sensitivity was therefore not likely incurred during service. The Veteran submitted a July 2020 private opinion from the same provider who gave the June 2017 private opinion. The opinion noted the May 2020 opinion and its finding that there was no mold exposure/mold sensitivity in service. However, the provider disagreed, noting that there were no allergy problems prior to service and the Veteran’s report of mold sensitivity while stationed in Germany was “highly plausible.” The provider specifically stated that the Veteran’s problems started in 1990 and has been ongoing since that time,” specifically noting ongoing issues of rhinitis. The Board finds that the private and VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the July 2017 Board hearing, the Veteran testified that her rhinitis issues began when she was stationed in Germany and have continued to the present. She reported that she began to have symptoms in May 1990, specifically reporting congestion, earache, coughing and nausea, as well as cramping in her side from repeated coughing. She also reported that her symptoms continued after service. The Veteran also testified regarding her housing conditions in Germany, stating that there were mold issues throughout the building and was inches thick on the walls. The Board notes that the Veteran is competent to report lay observable symptoms such as a runny nose and congestion as well as treatment she receives and her living conditions and accords her statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds her to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the preponderance of the competent evidence supports the conclusion that the Veteran’s allergic rhinitis had its onset during active service and has persisted since service. Service treatment records show symptoms of congestion, runny nose, earache and headache as well as a diagnosis of sinus infection and treatment with antibiotics. The competent lay evidence of record indicates that the Veteran’s symptoms persisted after service. June 2017 private treatment records found a mold allergy and diagnosed allergic rhinitis due to mold. Based on this history as well as the Veteran’s ongoing treatment for allergic rhinitis, the June 2017 and July 2020 private opinions found that the Veteran’s mold sensitivity and allergic rhinitis began in service and had been ongoing since that time. The March 2019 VA opinion and the May 2020 VA opinion regarding secondary service connection did not address the question of onset and are therefore not inconsistent with this finding. The Board acknowledges that a May 2020 VA opinion found that the Veteran did not have mold sensitivity in service. However, the Board assigns more weight to the private opinions as they are based on a more complete review of the Veteran’s medical history and the competent lay evidence of record. There is no indication in the May 2020 VA opinion that the provider considered the May 1990 service treatment records showing a stuffy head as well as other flu-like symptoms, which were specifically referenced in the private opinions. The May 2020 opinion also specifically stated that its finding of no mold exposure in service was based on a review of available medical records and the Board remand letter, while the private opinions explicitly considered not only the medical records but the Veteran’s competent lay evidence of record regarding mold exposure and symptoms in service. The Board therefore assigns more weight to the June 2017 and July 2020 private opinions, as they specifically reference and discuss the significance of the Veteran’s in-service symptoms and are based on a more complete consideration of the competent evidence of record. The Board therefore finds that the preponderance of the competent evidence of record indicates that the Veteran’s allergic rhinitis had its onset during service and has continued since service. Service connection is therefore warranted. REASONS FOR REMAND 1. Entitlement to service connection for vertigo 2. Entitlement to service connection for ear fullness with pain 3. Entitlement to service connection for tinnitus 4. Entitlement to service connection for bronchitis The Veteran contends that her vertigo, ear fullness, tinnitus, right ear disability, bronchitis and sinus headaches are due to her now service-connected sinusitis and allergic rhinitis. A September 2016 VA examination diagnosed acute bronchitis was not due to service but did not address the question of secondary service connection. April 2013 private treatment records showed diagnoses of episodic vertigo, ear fullness, tinnitus and noted a history consistent with allergic rhinitis. The provider opined that the Veteran’s symptoms may be due to the allergy and the resultant eustachian tube dysfunction. The Board finds that the opinion is speculative due to the use of conditional language and therefore inadequate for review, but that it nevertheless indicates that there may be a connection between those disabilities Veteran’s service-connected allergic rhinitis. Remand for a VA examination regarding whether vertigo, ear fullness and bronchitis are caused or aggravated by the service-connected sinusitis and allergic rhinitis is therefore required. 5. Entitlement to service connection for a right ear hearing loss disability The Veteran contends that she has a right ear hearing loss disability that is secondary to her service-connected sinusitis and allergic rhinitis. May 2014 and August 2016 VA examinations found that the Veteran did not have right ear hearing loss that met the threshold criteria to be considered a disability for VA purposes. The August 2016 VA examination diagnosed normal hearing bilaterally. However, August 2020 VA treatment records show an active problem of bilateral sensorineural hearing loss. Due to the remoteness of the most recent VA examination and as the evidence of record suggests that she may now be diagnosed with bilateral hearing loss, there is a possibility that she may now meet the disability threshold. The Board therefore finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 6. Entitlement to service connection for a sinus headache disability The Veteran contends that she has a sinus headache disability that is secondary to her service-connected sinusitis. The Board finds that it is unclear from the record whether the Veteran has a separate and distinct sinus headache disability or whether it is a symptom of the service-connected sinusitis. December 2008 VA treatment records noted frontal headaches every 10 days. The provider noted differential diagnoses of tension headaches, migraine and sinusitis. May 2013 private treatment records noted frequent to severe headaches, but the diagnoses were limited to allergic rhinitis and sinusitis. August 2016 private treatment records noted sinus pain and headache. The provider diagnosed sinusitis. The September 2016 VA examination included headaches among the symptoms of sinusitis, but they were not noted among the symptoms at the March 2019 VA examination. Remand for a new VA examination to clarify the nature of any current sinus headache disability is therefore required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current vertigo, ear fullness with pain, tinnitus or bronchitis disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current vertigo, ear fullness with pain, tinnitus or bronchitis disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include whether it was caused or aggravated by the Veteran’s service connected sinusitis or allergic rhinitis. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of her symptoms. 2. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current right ear hearing loss disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right ear hearing loss disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include whether it is caused or aggravated by the Veteran’s service connected sinusitis or rhinitis. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of her symptoms. 3. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any sinus headache disability. The examiner should review the file and provide a complete rationale for all opinions expressed. The following opinions are requested: a) Does the Veteran have a separate and distinct headache disability, or are her sinus headaches a symptom of her service-connected sinusitis and/or allergic rhinitis? The basis for any finding should be clearly explained. b) If a separate and distinct headache disability is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is related to the Veteran’s active service, to include whether it is caused or aggravated by her service connected sinusitis or rhinitis. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of her symptoms. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.