Citation Nr: 21020918 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-48 882 DATE: April 8, 2021 ORDER Entitlement to service connection for sinus disability is denied. FINDING OF FACT The Veteran does not have a currently diagnosed disability of his sinuses, to include but not limited to sinusitis. CONCLUSION OF LAW The criteria for service connection for chronic sinusitis 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 May 1967 to May 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) November 2016 rating decision of the Agency of Original Jurisdiction (AOJ). In October 2019 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the October 2019 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. 1. Entitlement to service connection for chronic sinusitis The Veteran alleges that he has a chronic sinus disability, claimed as sinusitis, that is caused by an incident while in service. 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-elements required to establish service connection are: (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). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran most recently underwent a VA examination in December 2019. The examiner found no diagnosable sinus disability. This finding was based on a review of the medical record, which will be discussed further below, and December 2019 x-ray imaging of the Veteran’s sinuses which showed “normal sinus series.” The only instance of a diagnosed sinus condition in service was in June 1970, when the Veteran was diagnosed with an “acute URI [and] sinusitis.” There is no other mention of sinusitis in the Veteran’s service treatment records (STRs). In his April 1971 separation examination, the Veteran specifically denied sinusitis, and a clinical evaluation found that his sinuses were “normal.” The Veteran’s post-service medical history is likewise negative for any diagnosed chronic sinus condition or symptoms of sinus disability. Routine medical evaluations as far back as June 2013, which covers the entirety of the period on appeal, show no evidence of sinus conditions. In June 2013, an examination of his head, ears, eyes, nose, and throat (HEENT) came back as atraumatic and normocephalic. Similar findings were made in March 2014, June 2014, September 2014, December 2014, November 2015, December 2016, May 2017, February 2019, May 2019, and November 2019. The Board notes that an October 2016 VA examiner did provide a diagnosis of “recurrent sinusitis.” However, this diagnosis appears to be based on the Veteran’s own reported “history of the knife injury to his face [that] injured the left maxillary sinus,” and that his “condition began since injury.” The examiner noted that the Veteran did not currently have any symptoms or effects related to sinusitis, and that “there are no records documenting the injury to sinus and recurrent infection.” The examiner also found that “current x-rays” were “negative” for any sinus condition. The Board finds that the October 2016 VA examination findings of a diagnosed sinus condition are not otherwise supported by the medical record. The diagnosis is based solely on the Veteran’s own reporting of his condition, and does not appear to be based on any objective medical findings. This is supported by the fact that for years before and after the October 2016 examination no other diagnosed sinus condition was found. Additionally, the examiner noted that per the Veteran’s own report, the Veteran’s sinus conditions are related to an in-service injury to his “left maxillary sinus,” yet there is no objective medical evidence that shows any type of sinus injury either before, during, or after the Veteran’s active duty service. The Veteran asserts that the symptoms he experiences are a manifestation of sinusitis. However, he is not competent to determine this as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that there is no diagnosed disability. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In this regard, the Board finds that the record provides no competent, credible and probative evidence of a sinus disability during the appellate period.   As there is no current sinus disability, the first Shedden element necessary to establish service connection has not been met, and the Veteran’s claim must be denied. 38 U.S.C. § 5107 (b) (2012); Brammer, 3 Vet. App. 223; Shedden, 381 F.3d 1163; Gilbert, 1 Vet. App. at 55. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.