Citation Nr: 21026341 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 12-08 125 DATE: April 30, 2021 ORDER Entitlement to service connection for chronic sinusitis is denied. FINDING OF FACT The Veteran’s chronic sinusitis condition was not manifested during service or within one year of service; the preponderance of the evidence is against a finding that the Veteran has a chronic sinusitis condition nor is it etiologically related to an event, injury, or disease in service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1973 to April 1975. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of background, this claim was previously before the Board in September 2016 and was remanded for further development. In February 2018, the Board denied the Veteran’s claim for service connection for sinusitis with headaches. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (Court) contesting the Board’s February 2018 decision. Through a Joint Motion for Remand (JMR) dated December 2018, the Court vacated the Board’s decision and remanded the case to be readjudicated. The JMR found that the Board erred in its prior decision because it did not make reasonable efforts to obtain private medical records. The JMR also found that the Board erred in its reliance on an October 2016 VA examination that was deemed inadequate because: (1) it did not contain a reasoned medical explanation that considered the Veteran’s medical history; (2) the examiner’s conclusion that the Veteran has never been diagnosed with a sinus condition is generally inconsistent with the evidence; and (3) the examiner did not comment on several diagnoses contained in the Veteran’s medical records. The case was subsequently returned to the Board for further development and readjudication of the issue in this appeal. In June 2019, the Board issued a decision remanding the matter for additional development consistent with the terms of the JMR. Since then, the private medical records were associated with the record, however, in December 2020, the Board once again found the VA examination of December 2019 along with the August 2020 addendum opinion to be inadequate for failure to address the Veteran’s medical record as required in the previous June 2019 Board remand. Once more, the case was remanded by the Board in December 2020 to obtain an addendum medical opinion to appropriately address all medical evidence of record. A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran 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). Entitlement to service connection for chronic sinusitis A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disease diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran contends that she currently suffers from chronic sinusitis with headaches that began during service. The Veteran’s service treatment records include reports of sinusitis with frequent headaches including a hospitalization for two weeks with headaches in August 1973. The Veteran’s entrance examination in May 1972 noted no past history of sinus problems or headaches and her separation exam from March 1975 notes that her sinuses were clear. After service, the first documented report of medical treatment for any sinus related condition occurred in 2003, nearly 28 years after service. There are no other treatment records in the file pertaining to a sinus condition until this time. Further medical records continue to show sinusitis, congestion, and headaches. Upon remand by the Board, the VA examiner provided an addendum medical opinion in January 2021 to his prior in-person examination from August 2020. The examiner opined that the Veteran does not have chronic sinusitis but instead has acute sinusitis which was less likely than not caused by or a result of military service. The examiner made specific mention of the Veteran’s service treatment records, namely the treatment in 1974 for acute sinusitis with notations of recurrent episodes of sinus symptoms. He also noted that treatment in February 1974 was for an upper respiratory infection which is not considered acute sinusitis. Lastly, the examiner noted that the Veteran’s separation examination noted her sinuses were “clear”. The examiner then discussed post service medical records noting that the earliest medical documentation began in 2003 for signs or symptoms of sinusitis. He considered private medical records indicating “they all are conceded as valid” however, noting that they too began decades after service and were made prior to a 2016 CT scan of the Veteran’s sinuses. In addition, the examiner discussed the results of the 2016 CT scan explaining that it showed no evidence of chronic sinusitis “which requires imaging evidence” to diagnose. The examiner concluded that without diagnostic testing confirming the presence of chronic sinusitis, the Veteran’s diagnosis was limited to acute or episodic sinusitis which are “self-limited”. The examiner then opined that the Veteran’s acute or episodic sinusitis is less likely than not due to or incurred while in service further noting that there was no treatment, complaints, or diagnosis within one year of separation. In fact, it was almost twenty-eight years after service when the first reports of sinusitis began. The examiner previously explained in his August 2020 examination that “any condition arising in service, more likely than not, would have manifest clinically in the interim, and certainly prior to 25+ years, there is no evidence of a chronic sinus condition, to include chronic sinusitis". In determining whether the record reflects that the Veteran’s current sinusitis condition is related to service, the Board acknowledges the Veteran’s belief that there is such a causal connection as well as her own description of in-service incurrence of a chronic sinusitis condition. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as headaches and congestion. See Layno v. Brown, 6 Vet. App. 465, 469(1994). The Veteran is certainly competent to describe the circumstances of her military duties, the symptoms she felt during service, and the symptoms she felt since service. She is not competent, however, to relate those symptoms to a specific diagnosis because she has not established she has the medical knowledge to support such competency. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In any case, the Board finds the idea that the Veteran “suffered” with twenty-eight years of continuous symptoms of chronic sinusitis and never sought treatment to be on its face incredible. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (distinguishing between competence and weight and credibility and explaining that the “former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”); cf. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (a lack of notation where such notation would normally be expected may be relied on as evidence against the existence of the fact or facts that ordinarily would have been noted). At a minimum, this lay evidence is of far less probative value than the medical evidence of record finding it unlikely that her symptoms described were anything less than “acute” episodes with no evidence supportive of a chronic condition until decades after service with no etiological link to service. Therefore, the Board finds the January 2021 VA medical opinion to be significantly more credible and overall persuasive than statements made by the Veteran to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board can consider bias in lay evidence, the significant time delay between the affiants’ observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). The Board has also considered whether the Veteran is entitled to service connection for sinusitis as a “chronic disease.” See 38 C.F.R. § 3.303(b). The Board notes that the Veteran has been diagnosed with acute or episodic sinusitis with complaints and treatment at the earliest, twenty-eight years after her separation from active service. Thus, the record does not show that the Veteran’s acute sinusitis manifested to a compensable degree within one year of separation. While the Veteran has later reported onset of acute or episodic sinusitis in and since service, the prolonged period from separation from service until 2003, without complaints and/or treatments for her alleged disability is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). (Continued on the next page)   The Board finds the preponderance of the evidence is against a finding that the Veteran’s sinusitis manifested within one year after separation, was continuous since service, or is otherwise due to service and, therefore, finds no provision in which service connection can be granted. The evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.