Citation Nr: 21012618 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 12-27 007 DATE: March 4, 2021 ORDER Service connection for sinusitis (claimed as a sinus disability) is denied. REMANDED The claim for a rating in excess of 10 percent for post-traumatic myositis ossificans, left wrist (previously claimed as left wrist) is remanded. FINDING OF FACT The most competent, credible evidence of record does not establish a link between the Veteran’s claimed chronic sinus disability and his active service. CONCLUSION OF LAW The criteria for service connection for a sinus disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to March 2000. This appeal before the Board of Veterans’ Appeals (Board) arose from the May 2010 and March 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in the time since the Board’s prior March 2020 decision, the Veteran has appointed a new representative in this case. The new representative is identified on the cover page of this decision. In May 2015, the Veteran testified at a video-conference hearing before a Veterans Law Judge regarding his increased left wrist rating claim. The Judge is no longer with the Board. A transcript of the hearing is associated with the claims file. The Board notes that the law requires that the VLJ who conducts a hearing must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Board sent a letter dated January 12, 2021 to the Veteran which explained that the VLJ who conducted his hearing was not available to participate in the appeal and offered the Veteran a hearing before a different VLJ. He was informed that if the Board did not receive a response to that notification within 30 days, it would presume he did not want an additional hearing. The Veteran has not responded. As such, the Board presumes that the Veteran does not want an additional hearing. In addition, in October 2019, the Veteran withdrew a request to testify at a Board hearing as to the service connection claim for a sinus disability. See 38C.F.R. §20.603(e). This claim was previously before the Board in March 2020, at which time it was remanded for further development, to include VA examinations, opinions and outstanding treatment records discussed in detail below. This claim has now returned to the Board for further appellate action. Service Connection 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). 1. Service connection for claimed sinus disability is denied. The Veteran contends that his sinusitis had its onset while he was in active service. By way of history, in the March 2015 rating decision, the RO, inter alia, reconsidered and continued to deny the Veteran’s claim of entitlement to service connection for sinusitis. The Veteran filed a NOD in April 2015, the RO issued an SOC in October 2016, and the Veteran filed a substantive appeal (via a VA Form 9) in November 2016. Although the Veteran also appealed the denial of a higher rating for hypertension in the March 2015 rating decision, he specifically excluded that issue from his November 2016 substantive appeal. Thus, the issue is not on appeal before the Board. The question for the Board is whether the Veteran has a current sinus disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s entrance examination found the nose, sinuses, mouth/throat, and ears to be normal. His service treatment records reflect three episodes of sinus problems with treatment, and there is no indication from the Veteran’s service treatment records that such episodes did not fully resolve without residuals prior to his separation from service. A review of the post-service evidence of record reflects that the Veteran was diagnosed in January 2006 (approximately six years after service) with chronic sinusitis, however, not documented on diagnostic imagining. In December 2006 the record shows allergic rhinitis diagnosis. While the post-service treatment records clearly indicates that the Veteran has received somewhat regular treatment for rhinitis and sinusitis since at least 2005, there is no indication from the treatment notes of record that the Veteran has reported that his symptoms had their onset during his active service and have continued since that time. The Veteran was afforded a VA examination for the claimed disability in October 2014. The examiner noted that the Veteran had a diagnosis of allergic rhinitis, but concluded that he did not have chronic sinusitis. The examiner provided the opinion that the Veteran’s claimed disability was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. In providing the opinion, the examiner reported that while the record indicated a history of sinusitis while on active duty, he did not currently have bacterial sinusitis. Thus, the examiner concluded that an opinion was not warranted with respect to whether a current diagnosis was related to a condition while serving on active duty. Notably, the VA examiner did not specifically opine as to the nature and etiology of the Veteran’s allergic rhinitis. In addition to having been diagnosed with rhinitis in March 2017, the Veteran underwent a paranasal sinus series three view x-ray. Impression results: there may be a minimal air-fluid level versus mucous retention cyst or polyp at the floor of the left maxillary sinus. Otherwise, unremarkable paranasal sinus series. However, an April 2017 CT scan report noted that the Veteran was shown to have acute sinusitis; thus, the Veteran is shown to have current sinus disability and treatment in service. As such, the Board remanded the Veteran’s claim for a new VA examination to obtain an adequate etiology opinion for his claimed sinus disability. In July 2020, upon review of the file and examination, the examiner diagnosed the Veteran with allergic rhinitis, with onset December 2006. The examiner did not diagnose the Veteran with a current sinusitis condition and remarked that allergic rhinitis is not medically related to sinusitis. Furthermore, the examiner noted that the Veteran did not have a nose, throat, larynx or pharynx current condition. The examiner opined that the Veteran’s claimed sinus condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that during service, the Veteran’s sinus disability, was acute only, noting three acute episodes of sinusitis with treatment noted in the Veteran’s claims file. Ultimately, the examiner concluded that there is no evidence of record of chronicity of care in treatment for sinusitis from 2000 to 2006. Therefore, a nexus has not been established. Moreover, during service, the claims file is silent for a diagnosis of allergic rhinitis. However, there is a diagnosis of allergic rhinitis of record beginning in 2006. The examiner noted that the Veteran’s dates of active service were from March 1980 to March 2000. As there is no chronicity of care for allergic rhinitis while serving in the military, therefore no nexus has been established. Furthermore, the examiner reported that she considered the lay evidence in the process of formulating this medical opinion, however, she found that the lay evidence does not have a direct correlation to acute sinusitis that was identified in the claims file while the Veteran was in service. For example, the Veteran asserted in several statements that his sinus problem is year-round, but during the examination, it was determined that he had a problem due to it being the fall season. The examiner concluded that the Veteran was diagnosed with allergic rhinitis and chronic sinusitis in 2006, which is six years post his military service and from 2000-2006 there is no established chronicity of care regarding the claimed conditions. The examiner noted (supported by the treatment records), the Veteran has a thirty-year history of smoking. The VA examiner opined that his history of smoking more than likely has impacted his claimed sinus condition. Upon remand for outstanding private treatment records, the Board received the Veteran’s private sinus treatment notes received in May 2020, which include a diagnosis of acute non-recurrent maxillary sinusitis. The Board assigns probative weight to the 2020 examiner’s conclusions that there is no indication from the record that the Veteran has a sinus disability or allergic rhinitis that is related to his active service. As the examiner reviewed the claims file and her detailed conclusions are supported by the record with examples, to include the Veteran’s currently diagnosed allergic rhinitis and previously diagnosed sinus condition had onset six years after separation of service. Here, there is no evidence that the Veteran’s claimed condition was a chronic qualifying disability nor was caused by service, nor does the evidence support a showing that this condition existed to a compensable degree within the specified timeframe. While the Veteran is competent to report observable symptoms of sinusitis, he is not competent to diagnose a chronic disability such as sinusitis or allergic rhinitis, or to provide an opinion linking such a disability to active service, as that requires medical expertise and training. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds that available evidence does not show that the Veteran’s sinus condition was incurred during or aggravated by military service. Further, the evidence of record does not show the Veteran were diagnosed with a condition under 38 C.F.R. § 3.309 at a compensable level within the time period specified under 38 C.F.R. § 3.307 which would warrant service connection on a presumptive basis. Accordingly, the Board finds that the evidence is against the claim and service connection for a sinus condition to include a chronic qualifying disability is denied. REASONS FOR REMAND In the May 2010 rating decision, the RO, inter alia, denied a disability rating higher than 10 percent for post-traumatic myositis ossificans, left wrist. The Veteran filed a notice of disagreement (NOD) in January 2011, the RO issued a statement of the case (SOC) in September 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) also in September 2012. In July 2015, the Board remanded the claim for a higher rating for the left wrist for additional development. In March 2020, the Board again remain the Veteran’s higher rating claim for the left wrist disability for additional development. Pursuant to the July 2015 and March 2020 Board remands, the Veteran was provided VA examinations in April 2018 and July 2020 to determine the current severity of his left wrist disability. In July 2020, the examiner noted that the Veteran’s service-connected left wrist condition was previously diagnosed post-traumatic myositis ossificans, left and reported a new diagnose of arthritis, degenerative of the left wrist. As directed in the Board remands, the July 2020 examiner evaluated the Veteran’s left wrist and conducted the appropriate range of motion testing, to include both wrist, flare-ups, functional loss, pain on motion, weakness, excess fatigability, and/or incoordination. 38 C.F.R. §§ 4.40, 4.45, Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. However, as asserted in the Veteran’s September 2020 brief, the March 2020 remand directives in part, directed that a neurological assessment be performed to assess whether there are any neurological impairments (nerve conditions) associated with the Veteran’s left wrist disability and separately compensable. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding this issue and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, another remand is required. While the Veteran’s represenative submitted a private Nerve Rating Questionnaire and positive nexus opinion by his private physican, the form questionnaire failed to offer sufficient detailed supporting rationale or clinical evidence to justify its conclusion. For example, the private medical professional does not approximate the Veteran’s reduction in range of motion in degrees during flare-ups or symptoms, as directed by the questionnaire. See Veteran’s representatives brief received in September 2020 with attached private Nerve Rating Questionnaire. The matters are REMANDED for the following action: 1. Obtain any outstanding Veteran’s VA treatment records for the period from April 2020 to the present. 2. Schedule the Veteran for an examination to identify any neurological impairment associated with the service connected left wrist disability, indicate whether such constitutes a separately ratable disability, and, if so, assess the severity of the impairment. The examiner should specifically answer the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran has a nerve disability in his left wrist as a result of his service connected left wrist disability? Why or why not? The examiner must review the claims file, to include considering the Veteran’s complaints of experiencing nerve pain in his left wrist, VA wrist examinations and September 2020 private Nerve Rating Questionnaire reflecting left ulnar moderate incomplete disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, 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.