Citation Nr: 21015869 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-41 888 DATE: March 18, 2021 ORDER Service connection for sinusitis is denied. An initial compensable rating for allergic rhinitis is denied.   FINDINGS OF FACT 1. The Veteran does not have sinusitis. 2. The Veteran’s allergic rhinitis has not resulted in greater than 50 percent obstruction of nasal passage on both sides, complete obstruction of one side, or nasal polyps. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to December 1979. The case is on appeal from a July 2009 rating decision. In September 2016, the Veteran testified at a Board hearing. In a June 2018 decision, the Board remanded the case for additional development. When the case was in remand status, in an April 2020 rating decision, the RO granted service connection for arthritis of the lumbar spine. As the benefit sought was granted in full, that issue is no longer before the Board. The Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for sinusitis. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Pertinent to a service connection claim, such a determination requires a finding of a current disability as one of the elements. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Facts The Veteran contends he has a diagnosis of sinusitis that is related to the sinusitis symptoms he experienced during service. As noted above, the claim was remanded by the Board in June 2018 for further development. In that decision, the Board also found that the claim for service connection for sinusitis has been pending since the original claim filed in May 1987. The Veteran’s service treatment records (STRs) reveal that he had complaints and treatment for sinusitis in service. An April 1976 record showed chronic maxillary sinusitis. A June 1976 record indicated the Veteran received treatment for maxillary sinusitis on numerous occasions and a July 1979 service record noted sinusitis and treatment related to the warm climate he was exposed to. Following the initial May 1987 claim, the Veteran was afforded a July 1987 VA examination in which radiographic studies were obtained. Such studies revealed “essentially unremarkable paranasal sinuses.” A lesion was identified which was compatible with an osteoma in the area of the nasal bone and frontal process. Despite the diagnostic test results, the examiner reported a diagnosis of chronic sinusitis. The Veteran submitted a November 2008 claim for service connection in which he indicated he has suffered from sinusitis since service. He was afforded a February 2009 VA examination in which the examiner indicated there was no evidence of sinus disease. The Veteran reported chronic sneezing, head/maxillary congestion, runny eyes and headaches. Further, February 2009 diagnostic testing associated with the examination of his sinuses showed hypoplastic left frontal sinuses and revealed “the remainder of the paranasal sinuses are normally aerated.” The examiner concluded the Veteran does not have sinusitis and the symptoms reported are related to his service-connected allergic rhinitis. Thereafter, a June 2013 statement from N.S. was submitted which indicated the Veteran suffers from a recurrent sinus condition. A June 2013 medical opinion from Dr. P.K. stated he treated the Veteran for multiple problems, including sinusitis between 1989 and 1993. He stated the history from the Veteran was that this problem developed during service. The Veteran has received treatment through the VA Medical Center. A January 2009 VA treatment record indicated the Veteran reported symptoms of episodic nasal congestion and maxillary sinus pressure that is unrelated to outdoor and indoor allergens and does not change much from season to season. A May 2010 VA record noted the Veteran reported increased sinus pressure, sneezing and itchy eyes since he ran out of his nasal spray. Later VA records dated November 2012, August 2013, March 2019 and August 2019 listed chronic sinusitis as a disorder. The Board notes a November 2019 VA record indicated the Veteran had no nasal congestion or sinus tenderness bilaterally. At the September 2016 Board hearing, the Veterans asserted that he suffered from sinusitis, which began in 1974 and continued throughout service. He stated the in-service symptoms led to his current sinusitis disorder and that his symptoms are separate and distinct from his service-connected rhinitis. Following the June 2018 Board remand, the Veteran was afforded an October 2019 VA examination. The examiner determined there is no objective evidence to warrant a diagnosis for sinusitis. The VA physician indicated the symptoms the Veteran experiences and the treatment he receives is for his allergic rhinitis. He restated there is “no objective evidence to warrant a diagnosis for the claimed sinusitis.” The Veteran’s representative submitted a February 2021 brief in support in which he asserts the Veteran has a diagnosis of sinusitis. He reported although the October 2019 VA examiner indicated the Veteran does not have a diagnosis of sinusitis, that examiner is a radiologist. He reported an otolaryngologist, as well as the Veteran have documented sinus symptoms, including those noted in a May 2010 VA treatment record, which has been addressed above. The representative stated with regard to the question of a diagnosis, the otolaryngology specialist would have more knowledge and skill. The representative further cited to medical literature provided by the Mayo Clinic, stating “there is such a thing as chronic rhinosinusitis.” Analysis In consideration of all the evidence of record since the initial claim for service connection, including the recent October 2019 VA examination report, the Board finds that the Veteran does not have a current sinusitis disability and has not had one at any time during the pendency of the claim. See Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 321; Romanowsky, 26 Vet. App. at 289. The Veteran’s sinus symptoms reported, including chronic sneezing, head/maxillary congestion, runny eyes and headaches are related to his service-connected allergic rhinitis. The Board has accorded the greatest probative value to the October 2019 VA examination report. The examiner’s opinion is based on review of the relevant evidence, as well as his examination of the Veteran, and the physician determined no sinusitis disability is present. The examiner’s opinion is clear and unequivocal in determining the Veteran has no sinusitis diagnosis and pathology, and that the current nasal symptoms are related to allergic rhinitis. As such, the opinion is found to be highly persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the evidence in support of the claim, including the June 2013 medical opinion from Dr. P.K. While this physician indicated that he provided treatment to the Veteran for sinusitis, he did not adequately establish a diagnosis of sinusitis for the Veteran. Moreover, he did not reference any objective test results which tend to support that the Veteran has sinusitis. Additionally, while the initial VA examiner in July 1987 indicated a diagnosis of chronic sinusitis, the associated radiographic test results revealed “essentially unremarkable paranasal sinuses,” which tends to suggest no condition was present, which would include sinusitis. The Board also acknowledges the lay assertions in support of the claim provided by the Veteran, as well as his representative in the February 2021 brief. As noted, the representative referenced a May 2010 VA treatment record which reported symptoms of increased sinus pressure, sneezing and itchy eyes. In this VA record, however, the physician that examined the Veteran did so in follow-up for vertigo and tinnitus. Further, while increased sinus pressure was reported, there is no clear indication of a diagnosis of sinusitis provided by the examiner. With regard to a potential diagnosis of sinusitis, as lay persons, the Veteran and his representative have not shown that they have specialized training sufficient to render such a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, providing a diagnosis for sinusitis is a matter not capable of lay observation and requires medical expertise to determine. Therefore, the Board accords more probative weight to the October 2019 VA examination report than to the lay statements of record. In sum, the Board finds that the Veteran does not have sinusitis and has not had sinusitis during the appeal period. He has had rhinitis for which service connection has been granted. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for sinusitis is not warranted. 2. An initial compensable rating for allergic rhinitis. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran’s allergic rhinitis has been rated under DC 6522, which provides that a 10 percent disability rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. For a 30 percent disability rating, the allergic or vasomotor rhinitis would be accompanied by polyps. 38 C.F.R. § 4.97, DC 6522. Analysis The Veteran contends that an increased rating is warranted for his service-connected allergic rhinitis. Following his November 2008 claim, the Veteran was afforded a February 2009 VA examination. The examiner stated the Veteran was suffering from symptoms of chronic sneezing, head/maxillary congestion, runny eyes and headaches related to his allergic rhinitis. She indicated there were no signs of nasal obstruction and no nasal polyps, as well as no septal deviation, hypertrophy of turbinates from bacterial rhinitis or rhinoscleroma present. VA treatment records include the May 2010 record discussed above, which indicated symptoms of increased sinus pressure for the Veteran, along with sneezing and itchy eyes. VA records dated September 2010 and December 2010 indicated the Veteran’s nasal turbinates appeared normal and no polyps were found. Further, a November 2012 record noted the examination showed no anterior nasal polyps or obstructions. During the September 2016 Board hearing, the Veteran claimed worsening rhinitis symptoms, including a potential blockage and/or nasal polyps. The Board remanded the claim in June 2018 for a VA examination to determine the severity of the disability. Pursuant to the Board’s remand, the Veteran was afforded an October 2019 VA examination in which he reported persistent runny nose with some swelling of the face, as well as ongoing blockage of the nose. The examination revealed no nasal polyps, no obstruction of the nasal passage greater than 50 percent on both sides or complete obstruction on either side. The examiner further noted no permanent hypertrophy of the nasal turbinates and no granulomatous conditions. The examiner reported, however, the Veteran’s allergic rhinitis affects his speech and vision when the disorder is acute. The Board finds a compensable rating for the Veteran’s allergic rhinitis is not warranted at any point during the appeal period. The two VA examination reports of record, from February 2009 and October 2019, revealed no nasal polyps, no obstruction greater than 50 percent of the nasal passage on both sides or complete obstruction on either side. Further, VA treatment records showed ongoing symptoms related to allergic rhinitis, including increased sinus pressure, sneezing and itchy eyes. However, there are no VA treatment records which suggest the presence of nasal polyps or nasal obstruction which would warrant a compensable rating under DC 6522. 38 C.F.R. § 4.97. The Board acknowledges the Veteran’s lay statements and sympathizes with the symptoms he experiences related to his rhinitis. While he is competent to report observable symptoms, the medical evidence of record is most probative as to whether symptoms are present which support a compensable rating for his service-connected allergic rhinitis, and such symptoms have not been identified. This DC is the proper DC for evaluating rhinitis as it is expressly for that condition. Thus, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine does not apply. As such, an initial compensable rating for allergic rhinitis is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.