Citation Nr: 21009648 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-07 664 DATE: February 23, 2021 ORDER Entitlement to service connection for sinusitis and allergic rhinitis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's sinusitis and allergic rhinitis began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sinusitis and allergic rhinitis are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January1981 to January 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A December 2014 Board decision denied entitlement to service connection for sinusitis. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2015 Order, the Court granted a Joint Motion for Remand (JMR) to vacate and remand the December 2014 decision for action consistent with the terms of the JMR. In May 2020, the Board remanded the claim for further development. The Board observes that the requested development has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As for the characterization of the issue on appeal, in light of the Veteran's reported symptoms and contentions, to encompass all disorders that are reasonably raised by the record, and to take account of the diagnosis of allergic rhinitis, the Board has re-characterized the claim of service connection for sinusitis as claims of service connection for sinusitis and allergic rhinitis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim; a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Entitlement to service connection for sinusitis and allergic rhinitis is granted. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "Active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records (STRs) reflect a dental visit in February 1981 in which the Veteran was complaining of sinus pain on the right side. There was an impacted molar in the sinus area. The dentist noted the Veteran had occasional sinusitis and advised to defer any definitive treatment of the impacted molar. In August 1982, the Veteran was seen for follow up of pneumonia. In a June 1988 clinical examination and Report of Medical History for enlistment in the Army Reserves signed by the Veteran, the sinus examination was normal, and he denied having ever had sinusitis. Post-service treatment records include a January 1999 private treatment note, where the Veteran reported having drainage, dizziness, swollen glands, and sinus pressure and pain. His maxillary and frontal sinuses were tender to palpation. He was diagnosed with sinusitis and upper respiratory infection. In an August 2003 visit nasal congestion was noted. A September 2004 treatment record for other complaints noted sinusitis in the Veteran’s problem list. In November 2004 the Veteran complained of head congestion and drainage. He was diagnosed with an upper respiratory infection and prescribed Flonase. In March 2005 the Veteran reported head congestion with cough and green sputum. He was again diagnosed with an upper respiratory infection and prescribed medication. In June 2010, the Veteran complained of chronic sinus congestion and chronic cough. His active problems at that time included allergic rhinitis, and it was noted that he did not tolerate nasal steroids in 2003 prescribed for a severe sinus infection and headaches. A July 2010 MRI showed mucosal thickening of the ethmoidal, maxillary, and sphenoidal sinuses. In July 2011, the Veteran was diagnosed with allergic rhinitis and prescribed Flonase. In September 2011, the Veteran reported that he had been coughing, which kept him up at night. The clinician noted that he “felt miserable” and had raw-looking lymph nodes and pain on palpation over the frontal and maxillary sinuses. In an October 2011 office visit, the Veteran reported having a history of frequent sinusitis. He was treated for headaches but reported having no sinus pain when the headaches occur. VA received a buddy statement from the Veteran’s mother in July 2011. She noted that in between the time the Veteran returned from Panama and reported to Ft Hood she recalled his problems with sinuses. After returning from overseas he planned travel to visit relatives in the Midwest, but he assumed that his severe headaches, nausea and sinus drainage was a virus and cancelled the visit. He was barely able to travel from their home to Texas because his sinuses would not stop draining. After the Veteran reported to his new unit, he called home indicating that he was still having the same symptoms. Since his discharge from service she is aware that the veteran has sinus problems weekly. She stated that she and her husband rely on Veteran to help because of their age and disabilities but with his headaches, constant nasal discharge and not feeling well he cannot help them as much as they would like. A July 2011 VA examination report reflects a diagnosis of chronic allergic rhinitis without sinusitis. By history, the Veteran had his last episode of sinusitis requiring antibiotics two years earlier. The report reflects that the Veteran had a perennial nasal allergy and that his current symptoms were nasal congestion, excess nasal mucous, and itchy nose. The VA examiner opined that the Veteran did not have sinusitis and that there was no evidence treatment for sinusitis in the preceding two years. He also stated that the Veteran had a long history of allergic rhinitis symptoms, but that there was no evidence of being treated for allergies while in service and that it was less likely than not that the Veteran’s current allergic rhinitis was secondary to military service. In March 2012 the Veteran was seen at the VA for chronic allergic rhinitis noting that cetirizine or loratadine caused drowsiness and that he used nasal sinus rinse and fluticasone daily although he was seeking an alternate nasal steroid as fluticasone caused nasal inflammation. In his claim filed in May 2011, the Veteran reported that his sinus condition began when he was stationed in Panama. He contends that his initial episode of sinusitis progressed into pneumonia treated with a series of antibiotic therapy. He reported that he continued to have sinus problems for the entirety of his time in service as well as since that time. His reoccurring sinus infection led to numerous episodes of bronchitis and upper respiratory infections which he treated with over the counter antihistamines. A couple of times a year he experienced a full-blown infection. He referred to his condition as “reoccurring sinus infections.” He reported current symptoms of daily sinus pressure and sinus headaches for which he medicates himself nightly. In June 2020 the VA examiner provided an addendum opinion with additional rationale for his opinion that the Veteran’s allergic rhinitis was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that the Veteran did not have an allergic rhinitis diagnosis and had in the past been diagnosed with sinusitis. His first noted sinus problem was in 1981 associated with a dental issue. The next sinus issue is documented as occurring in 1999 and was then followed by treatment notes in 2004, 2005, 2010, and 2011. The allergic rhinitis diagnosis did not occur until the 2010/2011-time frame. In the examination report dated July 2011, it was stated that the Veteran had a history of sinusitis while in service in 1981 as seen in the STRs and had been on Flonase for several years for chronic allergic rhinitis/sinusitis. Other than the one sinus problem in 1981, there are no other documented sinus/allergic rhinitis problems treated while in the service. A nexus could not be established because the medical evidence provided does not show that the condition began while in service other than the one episode which was dormant until 1999, some 17 years later. The Board observes that on remand the examiner was not explicitly requested to address the Veteran’s competent reports of in-service sinus problems as the onset of his current disability in the addendum opinion. See Jandreau v. Nicholson,492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran is competent to report continuous allergic rhinitis symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, the statement of the Veteran’s mother is competent evidence that supports a sinus condition and rhinitis beginning with the Veteran’s separation from service. There is no evidence that explicitly contradicts the Veteran's reports and his reports are generally credible and consistent with the evidence of record. Therefore, the Board concludes that his reports of continuous sinusitis and allergic rhinitis symptoms in the years since service are credible. Thus, the evidence indicates that the Veteran has a current disability of sinusitis and allergic rhinitis and the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sinusitis and allergic rhinitis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Accordingly, with the most probative lay and medical evidence being in relative equipoise, all doubts are resolved in favor of the Veteran. Service connection for sinusitis and allergic rhinitis is warranted. See Gilbert, supra. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.