Citation Nr: 21014843 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-46 135 DATE: March 15, 2021 ORDER Entitlement to service connection for residuals of smallpox vaccination is denied. Entitlement to service connection for sinusitis with chronic headaches and sinus infections is denied. Entitlement to service connection for reflux disease is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that residuals of smallpox vaccination began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that sinusitis with chronic headaches and sinus infections began during service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that reflux disease began during service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals from the smallpox vaccination are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sinusitis with chronic headaches and sinus infections are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for reflux disease are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from August 1965 to August 1969. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office. This claim has been before the Board twice, the first time in September 2018 and the second time in January 2020. Both times the claims were remanded for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 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, 1167 (Fed. Cir. 2004). When considering more than one medical opinion, the Board may weigh each opinion differently, and favor one opinion over another. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). The probative weight of medical opinion evidence is based on, among other things, the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for residuals of smallpox vaccination. The Veteran contends he is entitled to service connection for residuals from the smallpox vaccination. He received the vaccination in August 1965, and afterward he was taken to the hospital via ambulance due to a reaction to the vaccine. He claims ever since the vaccination, he has suffered swelling and weakness in his right arm, and that the muscle in his right arm has slowly deteriorated. In private treatment medical notes, the Veteran reported issues with his right arm. In June 2001, the Veteran noted arm numbness, and the doctor opined that his pain was from radiculopathy stemming from his (nonservice-connected) cervical neck issues. A March 2002 nursing follow-up note shows that the Veteran reported having pain behind his neck radiating to his right side of the shoulder toward his right hand. In June 2002, the Veteran complained of having worsening pain in his right arm that he said he knew stemmed from his cervical spine. In September 2003 and June 2004, the Veteran complained of inflamed sebaceous cysts under his right arm due to his rheumatoid arthritis medications. The Veteran underwent a VA examination in October 2011. The examiner confirmed the note in his service treatment records (STRs) suggesting he had a reaction to the smallpox vaccination. The Veteran reported having pain, swelling and muscle weakness after the vaccination, but also stated that he was able to return to his duties as an aircraft mechanic. It is noted by the examiner that the Veteran had a diagnosis for degenerative joint disease of the right shoulder. The examiner opined that the Veteran’s account of returning to work and even excelling suggests that any deficit in strength and function of the right arm resolved in 1965. She further opined that his current symptoms were more likely related to his diagnosed rheumatoid arthritis and degenerative joint disease and not due to residuals from the smallpox vaccine. In July 2013, a private treatment physician, Dr. RJJ, provided a statement opining as to the Veteran’s arm disability and its relation to his receiving the smallpox vaccination. He reported that the Veteran had atrophy of the triceps muscle, although not extreme, it was noticeable, and he seemed to have constant swelling of the right axillary region. He continued saying that the arm issues were likely not related to the problems with his neck, but instead believed that the weakness and pathology is related to the smallpox vaccine he received in service. In the November 2018 Board decision, the Board considered this opinion to be inadequate, and thus, remanded for another VA examination to address the Veteran’s statements regarding his symptomatology, his STRs, and this opinion by Dr. RJJ. Due to lack of sufficient rationale provided by this private practitioner, little probative value is accorded to this opinion. The Veteran underwent another VA examination for his arm and shoulder in September 2019. The Veteran reported his current symptoms as muscle weakness, loss of strength and power, and that he has a lowered threshold of fatigue that leads to fatigue pain. The examiner determined the he had injury to his muscle groups I and II. The Veteran’s muscle strength test was normal and there were no signs of atrophy. The examiner addressed Dr. RJJ’s statement explaining that Dr. RJJ’s explanation was insufficient and clinical research does not significantly corroborate his statement. The examiner opined that the Veteran’s muscle group I and II weakness is less likely than not incurred in or caused by the smallpox vaccination during service. It is noted, this examination was considered to be inadequate, as well, by the Board in 2020, since it failed to meet the prior Board remand instructions of discussing the Veteran’s lay statements and not discussing relevant STRs. In June 2020, the Veteran had another VA examination for his arm and shoulder disability. The Veteran claimed that since the onset of the condition in 1965, he continues to have loss of muscle tone that effects his ability to work overhead, push, pull, carry, or lift with the right arm. He also reported intermittent pain when doing such activities. The Veteran had abnormal range of motion, but there was no objective evidence of localized tenderness or pain on palpation. His muscle strength test showed normal strength with no reduction nor any atrophy or ankylosis. His right arm circumference was measured at 32.5cm and his left at 32cm, demonstrating no evidence of muscle atrophy. The examiner discussed the Veteran’s STRs, noting the emergency stamp in his records suggesting there was an adverse reaction to the smallpox vaccine requiring medical attention. She noted following the emergency note in service, there were no other complaints or mentions of arm pain, swelling, or weakness. Also, the Veteran was diagnosed with DJD of the right shoulder in October 2011. She opined that it was less likely than not that the Veteran’s right arm condition was caused by or related to service. The Board accords high probative value to this opinion. Finally, the Veteran contends that the September 2019 VA examination was inadequate because the examiner spent a short amount of time with him and that the VA should not consider the opinion of a doctor that has never seen him before, nor has reviewed his records; however, the examiner indicated he had reviewed the VA e-folder. While the Board acknowledges the Veteran’s contentions, the Veteran is not a medical professional, and has not demonstrated that the exam was unnecessarily short or that he is qualified to speak to how long an adequate examination should last. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In light of the above, the Board finds the preponderance of the evidence is against a nexus between the Veteran’s current disability and his in-service event, the smallpox vaccine. Specifically, the VA examiners opinions are more probative because they are based on a complete review of the claims file, including the lay statements and the medical opinion of Dr. RJJ, and they provide an explanation that contains clear conclusions and a supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board considered the benefit of the doubt rule; however, as the 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); 38 C.F.R. § 3.102. Therefore, service connection for residuals of smallpox vaccination is not warranted and the claim must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Entitlement to service connection for sinusitis with chronic headaches and sinus infections. The Veteran seeks entitlement to service connection for his sinusitis. He claims that symptoms of sinusitis were treated on numerous occasions during service, and those symptoms led to his later diagnosed chronic sinusitis condition. In a June 2020 VA examination, the examiner confirmed the Veteran’s diagnosis of chronic sinusitis. Thus, the Board finds the requirement for current disability is met. See Shedden, 381 F.3d at 1167. As discussed below, the Veteran underwent treatment for sinus congestion, upper respiratory infections, and headaches during service. The Board finds that the Veteran’s treatments for sinus issues sufficient to satisfy the second element of the claim. See Shedden, 381 F.3d at 1167. The Board finds that the preponderance of the evidence is against a nexus between his sinusitis and his treatments during service. The Veteran’s STRs show he entered the military with no mention of a sinus condition. During service, the Veteran was treated for sinus issues, to include treatment for a headache over the eye area for which he was given Darvon in August 1966, sinus congestion and an upper respiratory infection in January 1968, sinus congestion in May 1968; an upper respiratory infection in January 1969, and he presented as “stopped up” in February 1969. The Veteran’s separation examination was silent as to any sinus condition or symptoms. After service, the records do show the Veteran has a history of treatment for sinusitis and allergic rhinitis. Post-service, the earliest mention of sinusitis is in a private treatment note from November 1993, where the entry says the Veteran has a history of recurrence of his sinus congestion and fullness around his sinus area, with a diagnosis of sinusitis. The medical notes from this time do not discuss the onset or the etiology of the Veteran’s sinus conditions. The Veteran underwent a VA examination in October 2011. The examiner diagnosed him with seasonal allergic rhinitis, not the same as incurred in or related to sinus congestion and/or pharyngitis that occurred over 44 years before. She concluded that since there was no evidence of chronic sinusitis on radiologic exam and the Veteran’s separation examination was silent as to sinus conditions, that the current and recent sinus condition is not related to the sinus condition shown during service. As for his headaches, the examiner determined they are part and parcel of sinus infections that occur seasonally and therefore there is no additional diagnosis of a headache condition. However, in the 2018 Board decision, the Board found this examination to be inadequate as it failed to address the Veteran’s relevant STRs. Little probative value is accorded to this opinion. The Veteran provided statements from his private physician Dr. QT. Dr. QT said that the Veteran has had infections even dating back to his time in service, and he has had two surgeries for his sinus condition, once in 2012 and again in 2019. At a September 2012 appointment with the same doctor, the record indicates that the Veteran has a long recalcitrant history of nasal congestion, postnasal drip, rhinorrhea, coughing, headaches, ear fullness, and alteration of his sense of taste and smell. However, Dr. QT did not provide an opinion as to the etiology of the Veteran’s chronic sinusitis. In a September 2019 VA examination, the Veteran said that he believes the onset of his sinusitis was in 1965. He reported his current symptoms as sinus congestion, phlegm, runny nose and headaches. The examiner noted that the Veteran suffered from headaches, pain, and tenderness at sinuses associated with sinusitis episodes. The examiner referenced the Veteran’s separation examination being silent for complaints of sinus issues to include allergic rhinitis or sinusitis, concluding that the Veteran’s sinusitis was less likely than not incurred in or caused by the recurring complaint of sinus issues with headache in service. However, once again, the Board found this examination to be inadequate as it failed to discuss the Veteran’s lay statements regarding his symptomatology and the relevant STRs. The Board accords little probative value to this opinion. The Veteran underwent another VA examination in June 2020. After reviewing the record, the examiner noted the Veteran was seen in the clinic with complaints of sinus congestion in May 1968, and that his separation examination was silent as to a diagnosis or complaints of sinus issues. The examiner opined that the Veteran’s sinusitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, and that there is no objective evidence that the Veteran was diagnosed with sinusitis during service. A clarification of the June 2020 VA examination opinion was added to the file in August 2020. This examiner reviewed the Veteran’s file, to include his lay statements, his STRs, and all previous VA examinations. She discussed the Veteran’s treatments for sinus congestion, upper respiratory infections, and headaches during service. She said that both of the instances where the Veteran was diagnosed with upper respiratory infections during service were during the winter and typical of the common cold, also known as an upper respiratory infection. As to his documented headache in service, she said it was in the occipital region and not in the sinus region, and his head, eyes, ears, nose, and throat examinations were all negative. She opined that while it was possible the Veteran suffered from sinusitis in service, his healthcare provider at the time diagnosed him with upper respiratory infections, instead, and there is no evidence to show that those upper respiratory infections progressed into sinus infections. The examiner continued by saying the Veteran said he was diagnosed with chronic sinusitis without radiological evidence, but that a diagnosis of sinusitis must be made using radiological evidence which was not obtained while the Veteran was in service. She concluded by saying there is not enough evidence in the record to say the Veteran was suffering from sinusitis and not with upper respiratory infections during his time in service without resorting to speculation; therefore, for that reason, the opinion stands that the claimed condition is less likely than not caused by or incurred in service. In assessing whether the Veteran is entitled to service connection for his sinus disability, the Board has considered the Veteran’s assertions regarding his symptoms and lay statements concerning the onset, which he is certainly competent to provide. However, as the examiner in the August 2020 clarification discussed, in order to diagnose chronic sinusitis, it requires medical findings from radiological evidence, within the province of trained medical professionals. As such, the lay assertions that the Veteran has made concerning the onset of his sinusitis are not considered more persuasive than the objective medical findings which, as indicated above, do not establish a nexus for service connection. Accordingly, the Board finds the preponderance of the evidence is against a nexus between his sinusitis and his treatments in service. The Board considered the benefit of the doubt rule; however, as the 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); 38 C.F.R. § 3.102. Therefore, service connection for sinusitis with chronic headaches and sinus infections is not warranted and the claim must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. Entitlement to service connection for reflux disease. The Veteran contends he is entitled to service connection for reflux disease. He says he was not diagnosed with reflux disease in service, but he was treated for symptoms that began in service and have continued since, leading to his diagnosis of reflux disease in 2005. He claims that from 1970-1983, he had been seen at the hospital emergency room approximately 35-40 times for severe nausea or vomiting. The Veteran’s STRs reflect two separate occasions of nausea and vomiting in service, once in October 1968 and the other in January 1969. However, his separation examination was silent for reflux, heartburn, or any other reflux symptom. The Veteran underwent a VA examination in September 2019 for his reflux disease. He told the examiner that he believes the onset of his reflux disease began in 1966 with frequent heartburn after meals, and reflux leaving a sour taste in his mouth. His current symptoms include intermittent reflux, regurgitation, and mild chest pain. The examiner said that the Veteran’s STRs are silent for complaints, assessment, or treatment for gastroesophageal reflux disease (GERD), and that his treatment for GERD with proton pump inhibitors (PPIs) began more than 30 years after separation. Concluding that the Veteran’s GERD was less likely than not incurred in or caused by the acid reflux complaints during service. In the January 2020 Board decision, the Board decided this examination was inadequate as it failed to address the Veteran’s lay statements regarding his symptomatology and the relevant STRs. Little probative value is therefore accorded to this VA opinion. In June 2020, the Veteran underwent another VA examination for his reflux disease. The Veteran told the examiner that he has experienced symptoms since service and currently suffered from acid reflux, substernal pain, and regurgitation. The examiner confirmed his diagnosis of GERD and opined that it was less likely than not that his GERD was caused by or incurred in service. She concluded that the Veteran had no objective evidence of symptoms or signs associated with GERD or acid reflux in service. While during service he had complaints of stomach cramps, nausea, and vomiting, he was neither diagnosed with GERD nor given medication to treat GERD in service. She also said that the STRs do not reflect in-service complaints of the most common symptoms of GERD, such as heartburn, chest pain, difficulty swallowing, regurgitation of food or sour liquid, and a sensation of a lump in the throat. She opined that since the first diagnosis of GERD was in May 2000, more than thirty years after service, that it was less likely than not that the Veteran’s reflux disease was caused by or incurred in service. In reviewing the record, the Board finds that the preponderance of the evidence is against a nexus between the Veteran’s current disability and his in-service treatment for stomach cramps, nausea, and vomiting. The VA medical opinions clearly reflect consideration of the Veteran’s lay statements, the relevant STRs, and provided reasoned opinion concluding that his GERD was not incurred in or caused by the claimed in-service event. (Continued on the next page)   The Board considered the benefit of the doubt rule; however, as the 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); 38 C.F.R. § 3.102. Therefore, service connection for reflux disease is not warranted and the claim must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A.M. CLARK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.