Citation Nr: 21025368 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-20 450 DATE: April 28, 2021 ORDER Entitlement to service connection for sinusitis and rhinitis is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran did not experience chronic symptoms of a sinus or rhinitis condition during his first period of service and his sinus symptoms have not been etiologically linked to his first period of service or any incident therein. 2. A sinus and rhinitis condition clearly and unmistakably existed prior to the Veteran's second period of active duty service (July 2005 to July 2007). 3. Preexisting sinus and rhinitis condition clearly and unmistakably was not aggravated by the Veteran's second period of active duty service. 4. Hypertension was not shown during the Veteran’s first period of active service, did not have onset during the first year after discharge from the first period of active service, and has not been etiologically linked to the Veteran’s first period of active service. 5. Hypertension clearly and unmistakably existed prior to the Veteran's second period of active duty service (July 2005 to July 2007). 6. Preexisting hypertension clearly and unmistakably was not aggravated by the Veteran's second period of active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis and rhinitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to May 1980 and from July 2005 to July 2007 with additional service in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and December 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s claim for service connection for sinusitis has been expanded to include allergic rhinitis based on the November 2013 VA examiner’s findings and diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1(2009) (the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim). This matter was remanded by the Board in July 2018 and September 2020 for additional development. Service Connection 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-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, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under 38 U.S.C. § 1111, the presumption of soundness applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." Thus, it is required that there be an examination prior to entry into the period of service on which the claim is based. However, in the absence of such an examination made contemporaneous with the veteran's entry into service, the presumption of soundness could not apply. See Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In this case, the Board finds that the Veteran's service treatment records for his second period of service are complete. Indeed, the Board observes that the Veteran made multiple submissions of his service treatment records from his second period of service to VA in support of his claim. Notably, the claims file contains no evidence to suggest that any service treatment records from his second period of active service are missing or lost. Moreover, there is no evidence indicating that the Veteran was examined in conjunction with his entry into active service in July 2005. The Board also finds that there are no medical records contemporaneous to his entry into active service in July 2005 that could be sufficiently construed as a medical examination at the time of acceptance and enrollment to satisfy 38 U.S.C.§1111. Based on the foregoing, the Board finds that the presumption of soundness has not attached and the provisions of 38 U.S.C.§1111 are not applicable. As the Veteran's service treatment records do not indicate that he was examined prior to entrance onto active duty in July 2005, and medical evidence shows the Veteran's sinusitis and hypertension preexisted his second period of active service, the central question is whether the Veteran's disabilities were as likely as not aggravated by service. Here, the provisions of 38 U.S.C.§1153 are applicable and state that any preexisting disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The provisions of 38 C.F.R. § 3.306(b) pertain to the aggravation of preservice disabilities and state that aggravation may not be conceded unless the preexisting disease increased in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. An important distinction between 38 U.S.C.§1111 and 38 U.S.C.§1153 is the burden of proof. Under 38 U.S.C.§1111, the burden is on the government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). However, under 38 U.S.C.§1153, the veteran bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2014). 1. Entitlement to service connection for sinusitis and rhinitis A review of the Veteran’s service treatment records from his first period of active service show no reports or diagnosis of any sinus or rhinitis conditions. Notably, the Veteran’s November 1976 enlistment examination showed clinically normal sinuses and the Veteran’s own self reports of no sinus conditions. On separation examination dated August 1980 from his first period of active service, the Veteran’s was clinically assessed with normal sinus but self-reported seasonal allergies. The examining physician also noted that the Veteran had frequent upper respiratory infections during the winter causing coughing, runny nose, and fever. A review of private treatment records from December 1994 show that the Veteran had sinus drainage and it was noted that his sinuses were still a problem and in October 1997, he was noted to have sinus flare-ups. Private treatment records dated in March 1999 shows that the Veteran was diagnosed with a sinus infection and prescribed Augmentin (antibiotic). Private treatment records from January 2000 show the Veteran was again diagnosed with a sinus infection and prescribed Augmentin. Private treatment records from September 2000, show that the Veteran was noted to have chronic sinus problems and in October 2003, he was diagnosed with chronic sinus congestion. In February 2004, he was diagnosed with sinusitis and prescribed Levaquin (antibiotic) for seven days. A report of medical examination conducted after the Veteran’s second period of active service in April 2008 shows he was clinically assessed with normal sinuses. The Veteran self-reported sinus headaches, congestion, and runny nose. He also reported his ears being “stopped up” and mucus drainage from ear to throat. A December 2020 VA examination report shows that after a review of the evidence or record shows that the Veteran’s service treatment records for his first period of service showed no diagnosis or symptoms of sinusitis from June 1977 to May 1980, and that the had his sinuses draining in 1994, fourteen years after separation from service. Regarding the Veteran’s second period of active service from July 2005 to July 2007, the examiner noted that the Veteran had an acute episode on sinusitis in 2005 treated with antibiotics, and was then next treated for sinusitis in 2008. The examiner then opined that it was less likely than not that the Veteran’s sinusitis was incurred during active service. A January 2021 VA addendum examination report shows that the examiner opined regarding the Veteran’s second period of active service, that it was less likely than not that the preexisting allergic rhinitis, was aggravated beyond the natural progression by the Veteran’s second period of active service. The examiner also opined that based on the review of the Veteran medical record, no event or exposure during the Veteran’s secondary period of active service showed that the preexisting allergic rhinitis was aggravated. The examiner also remarked that the Veteran condition developed during a 25-year absence from active duty thus the condition development of his allergic rhinitis and acute sinusitis did not manifest in or is etiologically related to military service. The examiner reported that given the long gap between active service and the Veteran’s condition were indicative that the conditions were likely due to environmental factors outside his active service. First Period of Active Service Regarding the Veteran’s first period of service, based on a direct theory of entitlement to service connection, the Board finds that the preponderance of the evidence is against such a finding. A review of the Veteran’s service treatment records from June 1977 to May 1980 show no diagnosis of sinusitis or rhinitis and it was not until 1994, 14 years after separation from his first period of service, that he was diagnosed with a sinus condition. Additionally, evidence weighing against the claim is the December 2020 VA examiner’s opinion that it was less likely than not that his diagnosed sinus and rhinitis conditions were related to or incurred in the first periods of active service. The VA examiner based this finding on a review of the medical record and examination of the Veteran and concluded that the condition did not have its onset until many years after separation from service. The VA examiner also considered the Veteran’s separation examination which noted a history of upper respiratory infections, but still came to the conclusion that the currently diagnosed sinusitis and rhinitis did not onset in, nor was related to, the first period of active service. The Board places substantial weight on this opinion as it provides a rationale that reflects knowledge of the Veteran's history and medical records and explains the disability in sufficient detail. There is also no contrary opinion of record on this aspect of the claim. The Board has considered the Veteran's lay statements that his sinus and rhinitis conditions are related to his first period of active. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of the common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places the most probative value on the December 2020 VA examiner’s opinion and finds it persuasive of a conclusion that the current sinus and rhinitis condition, was not incurred in or otherwise related to the Veteran's first period of active service. Second Period of Active Service Since the Veteran was not examined prior to his July 2005 to July 2007 period of service, a presumption of soundness prior to that service as may otherwise attach under 38 U.S.C. § 1111, may not be granted. However as noted above, 38 U.S.C. § § 1153 provides that a pre-existing injury will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent in increase in severity during service. 38 C.F.R. § 3.306 Here, the medical evidence, the most probative evidence on the medical questions on which this case turns, shows the claimed disability existed prior to service and was not aggravated during the July 2005 to July 2007 period of service. At most, there was a temporary increase in symptoms during that time noted in October 2005 service treatment records. These records show he was seen for congestion and sinus infection and diagnosed with allergic rhinitis and sinusitis. This is supported by the January 2021 VA examiner’s findings that considered the October 2005 treatment report and concluded that during his second period of active duty service (from 2005- 2007), the veteran had an episode of acute sinusitis in 2005 that was treated with antibiotic. However, the Veteran’s service treatment records during second active duty did not show a chronic sinusitis condition and chronic sinusitis usually lasts 12 weeks or more and the next episode of sinusitis occurred in 2006. Because this evidence shows the claimed disability existed prior to service and was not aggravated by service, a basis upon which to establish service connection has not been presented. The Board concludes that the preponderance of the evidence is against the claim for service connection for a sinus and rhinitis condition. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for hypertension A review of the Veteran’s service treatment records shows no diagnosis or indications of hypertension. The April 1980 separation examination reports shows his blood pressure measured 112/80. An April 1984 report of medical history for his Reserve service shows his blood pressure was measured as 114/60. A March 1988 report of medical history his Reserve service shows his blood pressure was measured as 124/72. A November 2004 private treatment note shows that that the Veteran had some evidence of early hypertension with a notation to the Veteran's blood pressure during an August 2004 visit measured 140/100 and during the current visit measured 142/98. A December 2004 private treatment record shows that the blood pressure measured 132/104 and he was started on Benicar. One week later, the Veteran's blood pressure measured 134/88 and in late December 2004, his blood pressure measured 122/80. A March 2005 private treatment records shows the Veteran's blood pressure was measured as 122/84 and he was diagnosed with high blood pressure that was noted to be controlled. An October 2005 service treatment record shows that the Veteran’s medical history noted hypertension. A November 2005 service treatment record shows that the Veteran’s medication list noted medications for treatment of high blood pressure. A January 2006 service treatment record notes that the Veteran’s blood pressure was measured as 137/66. An October 2007 service treatment record shows that the Veteran’s was assessed with isolated elevated blood pressure. An April 2008 service treatment record shows that the Veteran’s blood pressure was measured as 142/81. A November 2013 VA examination report shows that the examiner opined that the Veteran hypertension was less likely than not related to the first period of active service. The examiner remarked that hypertension had its onset between 2000 and 2005. A December 2020 VA examination report shows that the examiner opined that the Veteran’s hypertension, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that the medical evidence indicates that the Veteran was prescribed antihypertensive medication prior to his secondary period of active service, and a review of the service treatment records did not show any event, exposure, nor evidence that the Veteran’s preexisting chronic hypertension condition was aggravated beyond its natural progression. The examiner reviewed the Veteran’s medical records and noted the Veteran’s history of and onset of hypertension in the examination report. First Period of Active Service Regarding the Veteran’s first period of service, on the basis of direct theory or presumptive theory of entitlement to service connection for hypertension, the Board finds that the preponderance of the evidence is against the claim. A review of the Veteran’s service treatment records from June 1977 to May 1980 show no diagnosis of hypertension and it was not until 2004, 24 years after separation from his first period of service, that he was first assessed with a hypertension condition, which is more than one year after separation from service. Additionally, there is no evidence on continuity of symptomology since separation of service. The Board also finds that the November 2013 VA examiner’s opinion that it was less likely than not that his diagnosis of hypertension was related to or incurred in the first periods of active service probative. The VA examiner based this finding on a review of the medical record and examination of the Veteran. He ultimately concluded that the condition did not onset in service and was not until many years after separation from service. The Board places substantial probative value on this opinion as it provides a rationale that reflects knowledge of the Veteran's history and medical records. There is also no contrary opinion of record on this aspect of the claim. The Board has considered the Veteran's lay statements that his hypertension condition is related to his first period of active. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of the common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places the most weight of probative value on November 2013 VA examiner’s opinion and the absence of a diagnosis of hypertension until 24 years after service, that the current hypertension, was not incurred in or otherwise related to the Veteran's first period of active service, or was diagnosed within one year after separation from service. Second Period of Active Service Since the Veteran was not examined prior to his July 2005 to July 2007 period of service, a presumption of soundness prior to that service as may otherwise attach under 38 U.S.C. § 1111, may not be granted. However as noted above, 38 U.S.C. § § 1153 provides that a pre-existing injury will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent in increase in severity during service. 38 C.F.R. § 3.306 Here, the medical evidence, the most probative evidence on the medical questions on which this case turns, shows the claimed disability existed prior to the second period of active service (March 2005) and was not aggravated during the July 2005 to July 2007 period of service. At most, there was a temporary increase in symptoms. During that time, service treatment records showing increased blood pressure readings. This is supported by the service treatment records from the second period of active service and the December 2020 VA examiner’s opinion that considered evidence of record and noted that the Veteran has used antihypertensive medication since prior to his secondary active duty service. The examiner remarked that the service treatment records did not show any event, exposure, nor evidence that the Veteran’s preexisting chronic hypertension condition was aggravated beyond its natural progression, and concluded that hypertension was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness service. This evidence shows the claimed disability existed prior to the second period of active service and was not aggravated by service. The Board concludes that the preponderance of the evidence is against the claim for service connection for hypertension. The claim for service connection for hypertension disability must there be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.