Citation Nr: 21024574 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-34 685 DATE: April 23, 2021 ORDER Service connection for sinusitis is denied. Service connection for intervertebral disc syndrome is denied. Service connection for a bilateral hips disorder is denied. FINDINGS OF FACT 1. The Veteran does not have a current sinusitis disability. 2. The Veteran’s intervertebral disc syndrome manifested many years after service, after a motor vehicle accident, and is not related to his in-service duties. 3. The Veteran’s bilateral hip arthritis manifested many years after service, without continuity of symptomatology from service to diagnosis, and is not related to his in-service duties. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The Veteran’s bilateral hip arthritis manifested many years after service, without continuity of symptomatology from service to diagnosis, and is not related to his in-service duties. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303., 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1998 to February 2002. The matter is on appeal from a December 2017 rating decision. In March 2020, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript is of record. In July 2020, the Board remanded the matter to obtain outstanding private and VA treatment records and addendum medical opinions. The RO contacted the Veteran in July 2020, September 2020, and October 2020 for authorization to obtain his private records, but he did not respond. Additionally, the RO obtained the outstanding VA treatment records and adequate medical opinions. Accordingly, the remand instructions were completed, and remand is not necessary. To the extent the evidence is incomplete, that is a direct result of the Veteran’s failure to cooperate in VA’s efforts to develop his claims. 1. Service connection for sinusitis is denied. The Veteran seeks service connection for sinusitis. He contends that his condition began in service due to constant exposure to dust. His service treatment records are associated with the claims file and appear to be complete. In November 1998, the Veteran sought treatment for a 7-day history of nasal congestion, drainage, sinus pain, and cough, and he was diagnosed with acute sinusitis. In August 1999, he complained of a long history of throat irritation and cough since childhood and described his symptoms as a constant head cold. The assessment was possible congenital upper airway obstruction or dysphagia. He was assessed with possible sleep apnea in April 2001. In May 2001, he was treated for a chronic stuffy nose, sore throat, and snoring, and he was diagnosed with allergic rhinitis. The Veteran denied recurrent sinusitis, chronic/frequent colds, bronchitis, and ear, nose, or throat trouble on his December 2001 report of medical history. In the remarks section, it was noted that he complained of sinus problems that existed prior to service as well as loud snoring and difficulty breathing at night. A report of medical examination that suggests it was completed at separation is in the claims file, but the relevant evaluation sections are blank. Post-service private treatment records show that he was taking Flonase and Zyrtec as of August 2006. In July 2014, he sought treatment for sleep apnea symptoms, and he was diagnosed with suspected obstructive sleep apnea, seasonal allergies, and allergic rhinitis. The Veteran presented to VA in December 2015 with complaints of sinus pressure and he was diagnosed with sinusitis a few days later. In January 2016, the Veteran complained of intermittent headaches which his physician noted clinically presented as sinusitis. He underwent a CT scan which revealed a left maxillary sinus mucus retention cyst. He was referred to an ENT, who determined that the cyst was non-pathological, and the Veteran had no evidence of a sinus problem. Subsequent VA treatment records do not show treatment for sinusitis but do show treatment for nasal congestion. The Veteran was afforded a VA examination in October 2016. While the examination report notes a diagnosis of chronic sinusitis, x-rays were negative for evidence of sinusitis. In a July 2017 addendum opinion, a separate VA examiner noted the negative examination and, after a review of the claims file, concluded that the Veteran’s x-rays do not support a finding of chronic sinusitis and the case of acute sinusitis in service was not chronic and resolved in service. The Board thus finds that service connection is not warranted for sinusitis because the evidence is negative for a current disability. While the October 2016 VA examiner documented a diagnosis of chronic sinusitis from 2016, the Board finds that the other evidence outweighs the report. Specifically, the Veteran has undergone several diagnostic tests that were negative for evidence of sinusitis, his VA otolaryngologist determined he did not have a sinus problem, and his VA treatment records do not show a diagnosis of chronic sinusitis. To the extent the Veteran contends that he has experienced sinusitis since service, he is not competent to render such a diagnosis and nexus opinion. Accordingly, the Board finds that the evidence weighs against service connection for sinusitis and the claim is denied. 2. Service connection for a spine disorder is denied. The Veteran seeks service connection for intervertebral disc syndrome. He contends that his condition began in service and is related to his in-service duties. The Board finds that evidence shows it manifested many years after service and is not related to service. His service treatment records are associated with the claims file and appear to be complete. In April 1998, the Veteran complained of back pain that was not related to trauma, and he was diagnosed with minor mechanical right upper back pain. In September 1999 the Veteran complained of upper back spasms for four days. He was diagnosed with left upper back muscle spasms. The Veteran denied recurrent back pain on his December 2001 report of medical history. While he complained of snoring and difficulty breathing at night, he did not complain of back problems. A report of medical examination that suggests it was completed at separation is in the claims file, but the relevant evaluation sections are blank. Post-service private treatment records show treatment for pain in the right scapula, upper back, and chest wall following a motor vehicle accident in June 2015. He presented to VA in December 2015 and complained of upper and lower back pain but denied trauma. He underwent x-rays which revealed scoliosis, degenerative changes, and multiple compression fractures to the T-spine and L-spine, degenerative disc disease with bilateral hip degenerative changes. In August 2017, however, he underwent further x-rays based on suspected back and hip arthritis, but the results were negative for fracture and arthritic change. The Veteran was afforded a VA examination in August 2017, at which time he was diagnosed with intervertebral disc syndrome based on January 2016 and August 2017 imaging results. The examiner’s medical opinion is inadequate because it is speculative, and the Board did not rely on it for this decision. Per the Board’s remand, VA obtained an addendum medical opinion in December 2020. After review of the claims file, to include the positive private medical opinion, the examiner concluded that the Veteran’s back disability was less likely than not related to service. The examiner explained that the Veteran’s service records showed acute complaints that resolved, his separation records were negative for back complaints, and private treatment records were negative for back complaints and diagnoses until the 2015 motor vehicle accident. The examiner further noted that the Veteran’s civilian work, which he performed for 13 years, required the same duties as his service MOS. Because the examiner considered the favorable evidence and provided a detailed rationale, the Board finds that this opinion is highly probative. The Board considered the Veteran’s statements that he has experienced back pain since service but finds that his statements are contradicted by his separation report of medical history, in which he denied recurrent back pain and other back problems, and his post-service medical records, which do not show back pain complaints until the 2015 motor vehicle accident. The fact he took the time at separation to report other medical issues he was having, but denied having back pain, weighs heavily against any allegation he had back pain at separation. Furthermore, the fact he was receiving private medical care after service (beginning in 2006) but did not complain of back pain until after the accident weighs heavily against any claim he had continuous symptoms of back pain after service but before the accident. The Board also considered the February 2020 private medical opinion but accorded it little probative value because the opinion did not address the Veteran’s intervening motor vehicle accident nor his post-service occupation. Instead, the Board finds that the Veteran’s contention and the private opinion are outweighed by the VA examiner’s opinion, service treatment records, and post-service medical records. Accordingly, the Board finds that the weight of the evidence is against service connection and the claim is denied. 3. Service connection for a bilateral hip disorder is denied. The Veteran seeks service connection for a bilateral hip disorder. Although the evidence conflicts as to the diagnosis, resolving reasonable doubt in favor of the Veteran, the Board assumes he has current bilateral hip arthritis. The Veteran contends that his condition began in service and is related to his in-service duties. Because arthritis is a “chronic disease,” the Board considered entitlement to presumptive service connection as well as direct service connection. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. The Board finds that evidence shows, however, his condition manifested many years after service and is not related to service. His service treatment records are associated with the claims file and appear to be complete. While he sought treatment for back pain in service, he did not complain of right or left hip pain. The Veteran denied recurrent back pain, swollen and painful joints, and impaired used of the legs on his December 2001 report of medical history. A report of medical examination that suggests it was completed at separation is in the claims file, but the relevant evaluation sections are blank. Post-service private treatment records show treatment for upper body pain following a motor vehicle accident in June 2015. He presented to VA in December 2015 and complained of upper and lower back pain but denied trauma. He underwent x-rays which revealed scoliosis, degenerative changes, and multiple compression fractures to the T-spine and L-spine, degenerative disc disease with bilateral hip degenerative changes. In August 2017, however, he underwent further x-rays based on suspected back and hip arthritis, but the results were negative for fracture and arthritic change. The Board thus finds that the hip arthritis was not chronic in service and did not manifest to a compensable degree within one year of service separation. Because nothing was noted in service, presumptive service connection based on continuity of symptomatology is not warranted. The Board further finds that the bilateral hip arthritis is not related to his in-service duties. The Veteran was afforded a VA examination in August 2017, at which time he was diagnosed with bilateral hip arthritis because the January 2016 imaging results showed degenerative changes. The examiner noted that x-rays from the day of the examination were normal, however. The Board did not rely on the examiner’s negative nexus opinion because it was inadequate. Per the Board’s remand, VA obtained an addendum medical opinion in December 2020. After review of the claims file, the examiner concluded that the Veteran’s bilateral hip disability was less likely than not related to service. The examiner explained that the Veteran’s service and post-service records were negative for hip injuries and complaints until the January 2016 x-rays following the motor vehicle accident. The examiner further noted that the Veteran’s civilian work, which he performed for 13 years, required the same duties as his service MOS. Finally, the examiner noted that the Veteran’s chiropractor had treated him since 2017 and did not discuss a hip condition. Because the examiner considered the favorable evidence and provided a detailed rationale, the Board finds that this opinion is highly probative. The Board considered the Veteran’s statements that he has experienced hip pain since service but finds that his statements are contradicted by his separation report of medical history, in which he denied all relevant symptoms, and his post-service medical records, which do not show evidence of injuries or complaints until the January 2016 x-rays taken after the 2015 motor vehicle accident. Again, the fact he took the time at separation to report other medical issues he was having, but denied having painful joints, coupled with the fact he was receiving private medical care after service (beginning in 2006) but did not complain of hip pain until 2015, weigh heavily against any allegation he had hip pain at separation and continuous symptoms thereafter. Instead, the Board finds that the Veteran’s contention is outweighed by the VA examiner’s opinion, service treatment records, and post-service medical records. Accordingly, the Board finds that the weight of the evidence is against service connection and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan 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.