Citation Nr: 21014238 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-01 452 DATE: March 11, 2021 ORDER Entitlement to service connection for a sinus disability is denied. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran’s current sinus disability is not causally related to an injury, event, or disease in service. 2. The most probative evidence shows that during the pendency of the appeal, the Veteran did not have PTSD, or another acquired psychiatric disorder that was caused by a corroborated in-service stressor. CONCLUSIONS OF LAW 1. The criteria for service connection for a sinus disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disability to include PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active military duty from March 1976 to August 1976; and from January 1991 to June 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) RO. In July 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. In a January 2020 decision, the Board denied the Veteran’s claims for, among others, service connection for sinusitis and an acquired psychiatric disability to include PTSD. Thereafter, the Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court), and the parties entered into a Joint Motion for Partial Remand (JMPR). In the October 2020 JMPR, the parties limited their appeal to the denial of the aforementioned issues; they specifically did not want to disturb the denials of the other issues. See October 2020 JMPR. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a sinus disability In the October 2020 JMPR, the parties agreed the Board failed to provide an adequate statement of reasons or bases regarding whether the October 2015 VA sinus opinion was adequate to address whether the Veteran’s current sinus disability is related to service, including reported exposure to burn pits. The Veteran asserts that he has a chronic sinus disability because of his military service. Indeed, he indicates that his sinusitis started after his return from Desert Storm due to him breathing all the smoke from them having to burn all their feces. The Veteran’s service treatment records (STRs), to include the March 1991 separation examination report, do not reflect treatment for symptoms of sinusitis and/or a diagnosis of sinusitis. During the October 2015 VA examination, the Veteran reported that he started to experience sinusitis within the past few years. He also indicated that in 1990 to 1991 while he was overseas, he was told it was due to the weather change and the dry heat. The examiner diagnosed chronic sinusitis and allergic rhinitis with cyst/polyps that started in October 2015. He opined that the current sinus disability was less likely than not incurred in or caused by an in-service injury, event, or illness. He reasoned that the Veteran reports onset was within the past few years. He indicated that the Veteran did not have chronic disability due to sinusitis on active duty. The examiner also found the Veteran did not experience an acute onset of sinusitis/allergic rhinitis due to any in-service event upon separation from service that progressed to be chronically disabling. It is not in dispute that the Veteran has sinusitis. What must be resolved is whether his current disability is etiologically related to his service. The Board finds that the preponderance of the evidence is against the Veteran’s claim. As noted, the STRs are silent for symptoms of a chronic sinus disability and post-service treatment records reflect a sinus disability in 2015. Further, there is no probative medical evidence that chronic sinus disability is related to an in-service event, illness, or injury. Indeed, the Board finds that the October 2015 VA examination report is the most probative evidence of record. This opinion was definitive, based upon a complete review of the Veteran’s entire claims file, and considered the Veteran’s reported history. Furthermore, the October 2015 examiner provided a complete and thorough rationale in support of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s lay statements concerning his current sinus disability and that such is related to service. Although he is competent to report when he experienced symptoms of sinusitis, and the Board does not doubt the credibility of his assertions. He is, however, a lay person and is not competent to determine the etiology of his sinusitis. That determination is a complex etiological question not susceptible to lay analysis. As such, the Board affords little probative value to his statements and testimony. The Board finds that the most probative evidence of record shows that there is no nexus between the Veteran’s current sinus disability and service, and therefore, the nexus requirement for service connection is not met. For these reasons, service connection for a sinus disability is denied. 2. Entitlement to service connection for an acquired psychiatric disability to include PTSD In the October 2020 JMPR, the parties agree the Board erred by failing to provide an adequate statement of reasons or bases for its findings that the Veteran’s report that he experienced two SCUD missile attacks while stationed in Saudi Arabia were not credible. Further, the parties found that the Board failed to explain why the lack of documentation found by U.S. Joint Services Records Research Center (JSRRC) was clear and convincing evidence against the credibility of the Veteran’s reported in-service stressors experiencing two SCUD missile attacks while stationed in Saudi Arabia. Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the Veteran was engaged in combat with the enemy. If the evidence establishes that a Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such Veteran’s service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). If a stressor claimed by a Veteran is related to that Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that Veteran’s service, a Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). The Veteran asserts that he has a current psychiatric disorder, to include PTSD, due to stressful events he experienced while stationed in Saudi Arabia from January 1991 to March 1991. Indeed, he reports that two SCUD missiles came into the area where he was located, and one hit a building behind him that resulted in 28 soldiers killed and 90 wounded. The Veteran did not specify names of a soldier killed or dates of seeing a solder die from a shrapnel wound. The STRs show no complaints of or treatment for psychiatric disability. On his March 1991 service separation examination, the Veteran denied any psychiatric complaints and reported that he was in excellent health. Post-service VA treatment records show ongoing mental health treatment to include PTSD and depression/anxiety. In December 2015, the RO sent a request to the JSRRC seeking to verify the Veteran’s claimed in-service stressors. In January 2016, the JSRRC responded, in part, that it researched the 1990-1991 Information Paper submitted by the 223rd Military Police Company. The Information Paper did not document any incidents in which the company was subjected to an Iraqi Scud attack. Regarding the Veteran’s claimed incident of traveling through his unit, the RO observed that per the JSRRC Stressor Verification Guide, JSRRC was unable to verify what a veteran witnessed unless the Veteran’s involvement with the traumatic event was officially documented. The Veteran also mentioned that they were transporting POWs, however he did not provide a stressor statement referencing the POWs themselves. Consequently, the RO found it was unable to conduct any further research. During the July 2019 Board hearing, the Veteran reiterated the SCUD missile attack and he also indicated that he was stuck in a civilian airplane. The RO has researched the Veteran’s stressors during the applicable period and has been unable to verify his claimed stressor. The Board finds the objective findings provided by the JSSRC to be more probative than the Veteran’s statements regarding stressors. Indeed, relevant to the stressor that addresses the SCUD missile attacks, the Board finds that for the period from 1990 to 1991 there would reasonably be documentation of Government buildings destroyed as well as dozens of soldiers killed and/or injured by hostile fire (i.e., Iraqi Scud attack). Further, relevant to the other reported stressors, the Veteran was notified as to what information was necessary for him to provide, in order for the JSSRC to conduct a thorough search. As noted above, he did not supply sufficient information to allow for meaningful archival research. Indeed, given the lack of information provided by the Veteran, as well as the fact that there is nothing documented with regards to an Iraqi missile attack in official government documents, to include the Information Papers of the Veteran’s military unit for the identified 1990-1991 time period, the Board finds the Veteran’s stressor statements lack credibility and are; therefore, unverifiable. Consequently, the Veteran does not meet the necessary service connection for PTSD criterion of having credible supporting evidence that a claimed in-service stressor occurred. Regarding psychiatric disorder other than PTSD, the Veteran was diagnosed with depression. The weight of the evidence is against service connection for such psychiatric disorders or any other that may be of record. As the above analysis reflects, service connection is not warranted for any non-PTSD, diagnosed psychiatric disorder because there is no credible supporting evidence that any in-service injury or disease occurred, including the claimed in-service stressful events. The most probative evidence of record demonstrates that the Veteran has reported that his chronic psychiatric symptoms began after service. See November 2015 VA examination report. Indeed, he denied any psychiatric symptoms during service, to include during the March 1991 separation examination, and reported he was in excellent health. As the Veteran has not met the necessary criterion for service connection for PTSD—credible supporting evidence that the in-service stressor occurred, the Board finds that the claim for service connection for PTSD must be denied. Additionally, the preponderance of the evidence is not supportive of finding that service connection for an acquired psychiatric disorder, other than PTSD, is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.