Citation Nr: 21024806 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-20 351 DATE: April 26, 2021 ORDER Entitlement to service connection for a chronic respiratory disorder, to include sinusitis, bronchitis, and allergic rhinitis, is denied. FINDING OF FACT The Veteran's chronic respiratory disorder did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for a chronic respiratory disorder, to include sinusitis, bronchitis, and allergic rhinitis, have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) and serve in the Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, this matter was previously before the Board in August 2017, when it was remanded for additional development. The Board notes that the August 2017 Board remand included the issues of entitlement to service connection for a lower respiratory disorder, a skin disorder of the scalp, pes planus, and athlete’s foot. See August 2017 BVA Decision. However, during the pendency of the appeal, a January 2021 rating decision granted service connection for restrictive lung disease, seborrheic dermatitis with tinea pedis, and pes planus. See January 2021 Rating Decision – Narrative. Accordingly, as the aforementioned service connection claims have been granted, those issues are no longer in appellate status as there are no cases or controversies presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board further notes that the Veteran submitted a Decision Review Request: Higher-Level Review, seeking increased initial evaluations for his service-connected restrictive lung disease, seborrheic dermatitis with tinea pedis, and pes planus in March 2021. See March 2021 VA Form 20-0996 Request for Higher-Level Review. Those issues are still pending development and have yet to be addressed by the RO. Lastly, as noted above, the August 2010 rating decision denied service connection for sinusitis. In characterizing the issues on appeal, the Board recognizes that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, the Board notes that the Veteran has also been diagnosed with allergic rhinitis and bronchitis. See December 2010 Medical Treatment Record – Non-Government Facility; June 2018 C&P examination. Therefore, the Board has broadened the Veteran’s sinusitis claim and recharacterized the issue as a claim for entitlement to service connection for a chronic respiratory disorder to include sinusitis, bronchitis, and allergic rhinitis, as identified on the cover page. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a chronic respiratory disorder, to include sinusitis, bronchitis, and allergic rhinitis, is denied. During his February 2017 Board hearing, the Veteran testified that his chronic respiratory symptoms manifested after he was exposed to tear gas during basic training. Specifically, he reported that he began experiencing sinusitis symptoms, to include irritation, discharge, and a cough, after he participated in gas chamber training, and stated that he has continued to experience such symptoms since service. In this regard, the Veteran testified that he was initially diagnosed with sinusitis during service, directly after basic training. The Veteran further testified that he began experiencing nosebleeds and heart palpations after Hurricane Katrina, which were found to be caused by sinusitis. In this regard, the Veteran reported that he received treatment for sinusitis from a private physician, Dr. Blanchet, for approximately five years. The Veteran further testified that he continues to experience periodic nosebleeds and takes medications, to include corticosteroids, for sinusitis. See February 2017 Hearing Transcript, pages 3, 23-29. In support of his claim, the Veteran submitted photographs, which he stated were taken after he exited the gas chamber during training. The photographs, in pertinent part, appear to show the Veteran coughing and expelling a line of discharge from his mouth. See December 2020 Buddy/Lay Statement; see also February 2017 Hearing Transcript, page 24. In addition, the Veteran submitted letters from his sister and brother, dated in February 2017, which state that the Veteran began reporting chest pain, shortness of breath, lack of energy, and dizziness when he returned from training in February 1984. See November 2017 Correspondence. A review of the service treatment records (STRs) shows that the Veteran reported that he had been experiencing nose bleeds for three weeks in November 1983. The Veteran also stated that he had vomited twice and reported chest pains and coughing causing shortness of breath and tight sharp pains in his chest. On physical examination, the examiner found that the Veteran’s shortness of breath was worse when he laid down and that he had sudden halts. The examiner also found that the Veteran had a runny nose, clear mucus, and a harsh, moist cough. The assessment was an upper respiratory infection cough and bronchitis, and the Veteran was treated with Ampicillin. In addition, the Veteran endorsed sinusitis on a July 1987 quad report of medical history, and the examiner noted that the Veteran sneezed at times but found that sinusitis did not impair the Veteran’s ability to work. Notably, however, the examiner found the Veteran’s nose and sinuses to be normal on the corresponding report of medical examination. See January 2015 STR – Medical. A review of the post-service treatment records shows a March 2010 private treatment record which notes that the Veteran had a history of sinus problems going back to at least 1983 and a history of sinusitis. The assessment included history of sinus problems going back to at least 1983, history of frequent respiratory infections, and history of sinusitis. See March 2010 Medical Treatment Record – Non-Government Facility. In addition, a December 2010 private treatment record shows that the Veteran was diagnosed with, and treated for, bronchitis in March 2010. See December 2010 Medical Treatment Record – Non-Government Facility. During a private April 2017 pulmonary consultation, the Veteran reported frequent “bronchitis attacks” when he was sick. He also described a nightly dry cough, which was productive of a thick sputum. The private physician noted that the Veteran had a history of sinusitis but did not diagnose him with sinusitis at that time. Rather, after performing an examination, the private physician prescribed Albuterol for dyspnea with exertion and chest pain related to the Veteran’s pneumothorax. The private physician further noted that the Veteran had an intermittent cough, which was consistent with a post-nasal drip or gastroesophageal reflux disease, and prescribed Flonase, a corticosteroid nasal spray, and an arnuity inhaler. See December 2017 Medical Treatment Record – Non-Government Facility. The Veteran underwent a VA examination in June 2018. The examiner diagnosed the Veteran with allergic rhinitis but found that he did not have chronic sinusitis. During the examination, the Veteran reported that his symptoms began spontaneously in November 1983 with congestion and nose bleeds. He stated that the condition stayed the same, though the severity of the pain diminished over time. However, the Veteran also reported that he was now experiencing recurrent episodes of sinusitis that did not respond to Fluticasone spray. Following the examination, the examiner opined that it was less likely than not that the Veteran’s claimed chronic sinusitis was incurred in or caused by the claimed in-service event or illness. In support of his opinion, the examiner stated that there was no objective medical evidence of chronic sinusitis. As such, the examiner found that there was no sinusitis to render an opinion. The June 2018 examiner did not proffer an opinion as to whether the Veteran’s diagnosed allergic rhinitis was etiologically related to his service. See June 2018 C&P examination. After a review of the evidence of record, the Board finds that service connection for a chronic respiratory disorder is not warranted. In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, the June 2018 VA examiner diagnosed the Veteran with allergic rhinitis. See June 2018 C&P examination. Accordingly, the remaining question is whether the Veteran’s diagnosed chronic respiratory disorder is related to service. With respect to an in-service injury or disease, the Veteran’s STRs show that he was diagnosed with an upper respiratory infection cough and bronchitis in November 1983. See January 2015 STR – Medical. Thus, the Board finds that the Veteran had respiratory symptoms and findings in service, and the second Shedden requirement for service connection has been satisfied. As to whether the Veteran’s current respiratory disorder is related to service, the Board finds the June 2018 VA examination report to be the most probative evidence of record. The examiner diagnosed the Veteran with allergic rhinitis but found that he did not have chronic sinusitis, and after completing the examination and reviewing the Veteran’s claims file, the examiner opined that it was less likely than not that the Veteran’s claimed sinusitis was related to his active military service. In coming to this conclusion, the examiner noted that there was no objective medical evidence of chronic sinusitis. See June 2018 C&P examination. The Board finds that the June 2018 VA examiner’s opinion was based on a thorough review of the record, is supported by a reasoned analysis of medical facts, and is consistent with the evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (20a07); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board recognizes that the medical opinions of record do not address whether the Veteran’s diagnosed allergic rhinitis and bronchitis are etiologically related to his service. However, the Board finds that no opinion was required because the evidence does not indicate that the diagnosed allergic rhinitis, or symptoms thereof, may be associated with his active duty service. Moreover, there is no indication that the Veteran was diagnosed with chronic bronchitis at any time during the period on appeal. To the contrary, private treatment records show that the Veteran was diagnosed with, and treated for, bronchitis in March 2010, and there is no evidence of recurrence or to suggest that the diagnosis represented a chronic disorder. See December 2010 Medical Treatment Record – Non-Government Facility. As such, the Board finds that the Veteran’s claim does not meet the low threshold requirements of McLendon, and therefore VA’s duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (explaining that something more than conclusory, generalized statements is needed to trigger the VA’s duty to assist); Duenas v. Principi, 18 Vet. App. 512, 517 (2004). The Board acknowledges the Veteran’s assertion that he has been experiencing sinusitis symptoms, to include irritation, discharge, and a cough, since he participated in gas chamber training during service. See February 2017 Hearing Transcript, pages 23-24. However, the Board finds that the lay evidence of record regarding continuity of symptomatology lacks credibility because it is contradicted by contemporaneous medical evidence. To this end, the Board notes that the Veteran reported nose bleeds and was diagnosed with an upper respiratory infection and bronchitis in November 1983, more than two years before his in-service gas chamber training, and that the post-exposure July 1987 report of medical examination shows the Veteran’s sinuses to be normal. See January 2015 STR – Medical. In addition, the Board finds that the most probative evidence of record reflects that the Veteran was not diagnosed with chronic sinusitis during the period on appeal. Although a March 2010 private treatment record states that the Veteran had a history of sinusitis and of sinus problems going back to at least 1983 and a private treatment record dated in April 2017 shows that the Veteran had a history of sinusitis, there is no indication that the Veteran was diagnosed with chronic sinusitis during the period on appeal. See March 2010 Medical Treatment Record – Non-Government Facility; December 2017 Medical Treatment Record – Non-Government Facility. The Board also finds it significant that, although the Veteran was prescribed Flonase and an arnuity inhaler in April 2017, the medical evidence of record shows that both medications were prescribed to treat the Veteran’s intermittent cough, which was found to be consistent with a post-nasal drip or gastroesophageal reflux disease, and not with sinusitis. See December 2017 Medical Treatment Record – Non-Government Facility; see also Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). In this regard, contemporaneous evidence may have greater probative value than history as reported by the Veteran at a later date. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Thus, the Board finds that the medical evidence of record weighs against the credibility of the Veteran’s assertions that he has been experiencing chronic sinusitis symptoms since service. The Board further recognizes the Veteran’s assertion that his claimed chronic respiratory disorder is related to his active duty service. In addition, the Board acknowledges the February 2017 statements from his sister and brother, which describe the respiratory symptoms the Veteran exhibited when he returned from training in February 1984. See February 2017 Hearing Transcript, pages 23-24; November 2017 Correspondence. In this regard, the Veteran and his siblings are considered competent to report the observable manifestations of his claimed disability. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). However, they are not shown to be competent to relate any in-service respiratory findings to his current post-service symptoms and diagnoses, and neither is the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Therefore, the Board concludes that the Veteran’s lay assertions in the present case are outweighed by the medical evidence of record, including the June 2018 VA medical opinion. In this regard, the Board finds that the June 2018 VA examiner has training, knowledge, and expertise on which she relied to form her opinion and provided a persuasive rationale. Importantly, there is no medical evidence to the contrary. Based on the foregoing, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a chronic respiratory disorder. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990).) S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, 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.