Citation Nr: 21012778 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-01 865 DATE: March 5, 2021 ORDER Entitlement to service connection for a sinus disability is denied. FINDING OF FACT A current sinus disability was not incurred during any period of active duty service, has not been chronic or continuous since service, did not manifest within a year of service, and is not due to an in-service disease, injury, or other incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for a sinus disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to August 1975, with additional service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This issue was previously remanded by the Board in July 2016, October 2017, and July 2020. It has now been returned to the Board. The Veteran testified before a Veterans Law Judge at a hearing in January 2016. A transcript of that hearing is of record. In November 2020, the Veteran was sent a letter informing him that the Veterans Law Judge who held the January 2016 hearing was no longer with the Board, and he could request another hearing. To date, he has not responded. As such, his nonresponse is deemed an indication he does not wish to have another Board hearing, and his appeal may now be considered by the Board. Entitlement to service connection for a sinus disability The Veteran seeks service connection for a sinus disability. He asserts such a disability had its onset in service, and service connection is therefore warranted. Specifically, the Veteran has asserted that he developed a chronic sinus disability while stationed in Germany in 1974-75, and continues to experience sinus difficulties. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As noted above, the Veteran had active duty service as a member of the U.S. Army from July 1974 to August 1975. Thereafter, he had unverified periods of service as a member of the Army Reserves and National Guard of various states, until approximately 1993. “Active service” includes active duty, a period of active duty for training (ADT) in which the individual was disabled from a disease or injury incurred or aggravated in the line of duty, and a period of inactive duty for training (IDT) in which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21), (24)(B); 38 C.F.R. § 3.6 (a); see also Brooks v. Brown, 5 Vet. App. 484 (1994). ADT includes full-time duty performed for training purposes by members of the Reserves or National Guard. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). IDT is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6(d). Annual training is an example of ADT, while weekend drills are IDT. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Considering first the service treatment records, the Veteran was without any noted sinus or nasal abnormalities when he was examined and accepted for active duty service in July 1974. The Veteran was treated for upper respiratory infections during service in September 1974 and again in January 1975. In November 1974, he complained of “sinus problems” and was given Actifed. The Veteran was seen in June 1975 for chest congestion, and a mild cough. His sinuses were described as productive. A chest cold was diagnosed. On examination for service separation in July 1975, the Veteran was without any noted abnormalities of the sinuses or nose, and on a concurrent report of medical history, he denied a history of sinusitis, hay fever, or nose or throat trouble. As noted above, the Veteran also underwent periodic examinations for Army National Guard service. March and September 1980 Army National Guard enlistment physical examinations were negative for any abnormalities of the sinuses or upper respiratory system. He also denied any history of nasal or sinus disorders on March and September 1980 medical history reports. On a February 1988 report of medical history, the Veteran reported a history of sinusitis. He described a history of allergic sinusitis in the spring. On a concurrent physical examination, the Veteran was without any noted abnormalities of the nose or sinuses. Thus, based on the above, the Board must conclude that while the Veteran was seen occasionally during his active duty service period from July 1974 to August 1975 for sinus complaints, chest congestion, coughing, and other respiratory symptoms, he was without continuing residuals of a sinus disability based on examination for service separation in July 1975. Moreover, subsequent National Guard examinations were negative for abnormalities of the sinuses, nose, or respiratory system. Post-service, VA and private medical treatment records reflect diagnoses of sinusitis, allergic rhinitis, and allergic rhino conjunctivitis. The medical evidence of record first reflects a diagnosis of a sinus disability, in this case chronic sinusitis, in May 2001. This diagnosis comes over five years after the Veteran’s last duty period of any kind, and more than 20 years after his last period of active duty service. A treatment record from 2001 documents the Veteran’s report that he lives near a “chemical place” and has had trouble breathing and it “used to not be like that.” This evidence weighs against the claim. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). As such, the Board must conclude that the Veteran’s current sinusitis was not incurred in service, and has not been chronic and continuous since service separation. The competent evidence is also against a finding of an etiological nexus between a current sinus disability diagnosis and a disease, injury, or other incident of service. The Veteran was afforded VA medical examinations and opinions in February 2017, August 2019, and October 2020. On VA examination in February 2017, current diagnoses of chronic sinusitis and allergic rhinitis were rendered. Regarding the etiology of these disabilities, the examiner concluded it was less likely than not these were incurred during or otherwise related to active duty service, as the service treatment records were negative for complaints of sinus symptoms at service separation in 1975 and for all subsequent periods of National Guard and Army Reserve training. Because, however, the 2017 examiner did not appear to consider the Veteran’s lay testimony, another VA examination was afforded the Veteran in August 2019. Chronic sinusitis and allergic rhinitis were again diagnosed. This VA examiner again found it was less likely than not the Veteran’s current sinus disabilities were related to service, finding the Veteran’s sinus symptoms were acute and not chronic in service, based on the absence of any reported symptoms at service separation and on subsequent National Guard examination reports. Finally, because the 2019 examiner did not discuss the fact the Veteran’s post-service sinus disabilities were characterized as chronic in nature, another VA examination was afforded the Veteran in September 2020. The claims file was reviewed in conjunction with the examination and diagnoses of chronic sinusitis and allergic rhinitis were confirmed. Regarding the etiology of these disabilities, the examiner concluded they were less likely than not related to or incurred in active duty service. The examiner found no evidence that the Veteran’s in-service sinus complaints were indicative of chronic sinusitis, as he had an extended period following service separation in 1975 in which no symptoms of sinusitis were reported and he denied sinus symptoms on National Guard health assessments and examinations. As this evidence is uncontroverted in the record, the Board finds the preponderance of the evidence to be against an etiological nexus between the current diagnoses of chronic sinusitis and allergic rhinitis and any disease, injury, or other incident of service. The Veteran has himself asserted that he has experienced chronic sinus symptoms since active duty service in 1974. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board does not, however, find the Veteran’s lay assertions to be credible in the instant appeal, as he denied any history of sinus trouble at service separation in 1975 and on multiple National Guard examinations in 1980. Moreover, he has in the past misrepresented the nature of his service. For example, on his initial VA compensation claim filed in December 2008, he claimed service in Vietnam. During a March 2009 VA psychiatric evaluation related to a claim for posttraumatic stress disorder, he also reported service in Vietnam, with exposure to traumatic combat events. During his January 2016 personal hearing, however, the Veteran’s representative confirmed that the Veteran never served in Vietnam. His service personnel records are likewise negative for Vietnam service. Instead, they indicate that his foreign service was conducted in Germany. As such, the Board cannot find the Veteran’s other lay assertions to be credible evidence of ongoing symptomatology, as he has demonstrated a willingness to misrepresent facts for financial gain. (Continued on the next page)   In conclusion, the preponderance of the evidence is against the award of service connection for a sinus disability on any basis, and the claim must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.