Citation Nr: 21009928 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-48 700 DATE: February 23, 2021 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for allergic rhinitis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s sinusitis and allergic rhinitis are related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for allergic rhinitis are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Navy from October 2006 to November 2007 and from August 2014 to November 2015. The Veteran also served in the Navy Reserves (Guard/Reserve Active Service). This matter comes to the Board of Veterans Appeals’ (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020 the Veteran testified at a virtual hearing in front of the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claim file.  Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As defined by statute and regulation, active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a), (d) (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis Military personnel records document that that the Veteran was on active duty orders in February 2002 at Camp Pendleton in California for a period of 12 days. A December 2003 treatment record noted a prescription for Flonase. The Veteran underwent a VA examination in February 2014. The examiner noted a diagnosis of allergic rhinitis. The Veteran reported that he had not had any sinus problems until January or February of 2002 when he developed sinus pressure and pain that lasted for several months. The examiner noted that the Veteran reported that his initial symptoms began while he was deployed at Camp Pendleton for 2 weeks. In an August 2014 correspondence, a fellow soldier who was also a physician, noted that he was with the Veteran on 2-week active duty orders at Camp Pendleton in February 2002. The fellow soldier noted that the exercises were conducted in very cold temperatures and that as a physician, he attended many participants for cold related injuries as well as upper respiratory infections and bronchial disease. The Veteran was one of the soldiers that he treated during this time and his symptoms were still unresolved at the time of their departure. The fellow soldier noted that several months later, he saw the Veteran as a patient and his sinus symptoms were still unresolved at that time. In an August 2014 statement, the Veteran indicated that his current sinusitis and allergic rhinitis were triggered by unexpectedly cold temperatures in a field exercise at Camp Pendleton beginning on January 2002. The Veteran noted that the training was later dubbed “Operation Deep Freeze” and that he had never experienced any sinus or rhinitis symptoms prior to his time at Camp Pendleton for the field exercise. On an August 2015 health questionnaire, the Veteran indicated that he had sinus difficulties. The Veteran underwent a VA examination in November 2015. The examiner indicated that the Veteran had diagnoses of chronic sinusitis and allergic rhinitis which were first diagnosed in 2002. The Veteran reported that he had sinus and allergy problems since 2002 when he was stationed at Camp Pendleton. In a December 2015 opinion, the VA examiner opined that the Veteran’s allergic rhinitis and sinusitis clearly and unmistakably existed before service and was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner noted that the Veteran was diagnosed with sinusitis and allergic rhinitis prior to active duty and while the Veteran may have had a temporary exacerbation while on active duty, there was no evidence that the condition was permanently aggravated beyond its natural progression by military service. At his November 2020 hearing, the Veteran testified that he was at field training at Camp Pendleton, California when it got unseasonably cold. The materials provided did not provide adequate insulation and as a result a lot of people got sick. The Veteran testified that he developed a sinus problem and an upper respiratory infection which had both continued to this day. The Veteran indicated that he had never had any of these symptoms prior to his experience at Camp Pendleton. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for sinusitis and allergic rhinitis is warranted. Initially, the Board notes that there are current diagnoses of sinusitis and allergic rhinitis. Accordingly, the first element of service connection is satisfied. As noted above, military personnel records document that that the Veteran was on active duty orders in February 2002 at Camp Pendleton in California for a period of 12 days. As a result, the Board finds that the evidence indicates that the Veteran was under active duty orders at the time of his February 2002 complaints regarding congestion and sinus difficulties due to cold conditions at Camp Pendleton. The Board notes that there are conflicting opinions as to whether the Veteran’s current chronic sinusitis and allergic rhinitis disabilities are related to his service. As noted above, the November 2015 VA examiner opined that the Veteran’s allergic rhinitis and sinusitis clearly and unmistakably existed before service and was not aggravated beyond its natural progression by an in-service event, injury or illness. However, the Board notes that this is opinion is only referring to the Veteran’s active service from October 2006 to November 2007 and from August 2014 to November 2015. When determining that the Veteran’s allergic rhinitis and sinusitis disabilities clearly and unmistakably preexisted service, the examiner was referring to the time period prior to October 2006 to November 2007 and from August 2014 to November 2015. However, as noted above, the evidence indicates that the Veteran was under active duty orders at the time of his February 2002 complaints regarding congestion and sinus difficulties due to cold conditions at Camp Pendleton. The Board notes that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461(1993). Conversely, in an August 2014 correspondence, a fellow soldier who was also a physician, noted that he was with the Veteran on 2 week active duty orders at Camp Pendleton in February 2002 and that the Veteran was one of the soldiers that he treated during this time. The Board also finds that the Veteran’s assertions and statements regarding his in-service sinusitis and rhinitis symptoms in this case are credible. As noted above, the Veteran testified that he did not have these sinus and rhinitis symptoms prior to his time at Camp Pendleton and that these conditions continued to the present day. Here, the Board finds that the Veteran is competent to report the type and frequency of his sinus and allergic rhinitis problems during service. Further, the Board notes that the Veteran is a physician, and is therefore competent to provide a nexus opinion between his in-service condition and current disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Veteran, as a medical professional, at his November 2020 hearing, opined that his sinusitis and allergic rhinitis resulted from his in-service cold exposure in February 2002 at Camp Pendleton. The Veteran is again a VA physician and as such is qualified and competent to provide a medical opinion regarding his own disability. Therefore, the Board finds the Veteran’s medical opinion probative and the Board finds his opinions to be competent, credible and highly probative. See Pond v. West, 12 Vet. App. 341, 345 (1999). As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran had a current chronic sinusitis and allergic rhinitis disability that was caused by his service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for allergic rhinitis and chronic sinusitis disabilities is granted. See 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.