Citation Nr: 21027424 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 20-15 042 DATE: May 5, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include as secondary to service-connected bilateral eye trachoma, is denied. REMANDED Entitlement to service connection for a sinus disorder (claimed as chronic sinus issues), to include as secondary to service-connected bilateral eye trachoma, is remanded. Entitlement to service connection for a throat disorder, to include as secondary to service-connected bilateral eye trachoma, is remanded. FINDING OF FACT The Veteran has not been shown to have a current respiratory disorder that was incurred in active service or that was proximately due to, the result of, or aggravated by a service-connected disability. CONCLUSION OF LAW A respiratory disorder other than sinusitis was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1103, 1110; 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from August 1947 to June 1950. He had additional service in the United States Air Force Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision. The Veteran's appeal originally included the issue of entitlement to service connection for headaches. However, in a July 2020 rating decision, the RO granted service connection for headaches. The AOJ's grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, that matter is no longer on appeal, and no further consideration is necessary. In February 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). The disorder at issue in this case are not considered chronic diseases for VA compensation purposes. As such, the provisions for continuity of symptomatology after discharge are not for application in this case. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for a respiratory disorder, to include as secondary to service-connected bilateral eye trachoma. In a January 2019 notice of disagreement, the Veteran contended that the his sinus issues developed as a result of his service-connected trachoma, that his respiratory issues stemmed from his sinus issues, and that he was diagnosed with hyperkeratosis pharynx with little to no improvement with treatment during service. The Veteran's service treatment records include treatment for a throat infection during service. Specifically, in a March 1950 service treatment note, it was reported that the Veteran was treated for three months for a throat infection aboard his ship. It was noted that the infection improved considerably on penicillin therapy, but that the last small mucus patches resisted all treatment. It was determined that the Veteran was no longer fit for shipboard duty and he was transferred to the United States Naval Hospital in San Diego for observation and treatment. An April 1950 service treatment note indicated that a laryngoscopy showed a hyperkeratotic filament burying the tonsillar area, which was received for pathology and study. The examining medical officer noted that the Veteran had rather extensive keratosis involving the lingual tonsils and, to less extent, the hypopharynx. It was reported that the Veteran showed only slight improvement on local medications and that x-ray therapy was requested. A May 1950 service treatment note documented that pathology reports showed tonsillar plugs. It was noted that attempts were being made to get cultures to rule out actinomycetic, sporotrichosis, and other mycotic basis. The medical officer indicated that the Veteran continued to improve slowly and that the plugs and keratotic areas were much less prominent. In a May 1950 service treatment note, the examining medical officer reported that the Veteran had received three weeks of chloromycetin empirically with minimal changes and that an indirect laryngoscopy showed a few hyperkeratotic lesions in the lower border of the lingual tonsil. The Veteran was found fit for duty and he was ordered to return to duty. Thereafter, a May 1950 report of medical history showed a negative chest x-ray and the examining medical officer noted that the Veteran was examined and found physically qualified for separation from the Navy with no defects noted. A corresponding May 1950 separation examination report documented a normal examination of the nose, sinuses, mouth, and throat. The examining medical officer did note that the Veteran was diagnosed with hyperkeratosis pharynx in the remarks section of the report. The Veteran was afforded a VA respiratory examination in December 2019. In the December 2019 VA respiratory examination report, the examiner reported that the Veteran did not have a current or past diagnosis of a respiratory condition. In fact, during the examination, the Veteran did not report a lung condition; rather, he stated that he had recurrent nasal congestion and drainage that made it difficult to breathe through his nose. The examiner related that there was no current diagnosis of a throat or pulmonary condition. In addition, during the February 2021 hearing, the Veteran testified that he had a hardening of the area around his throat which caused difficulty breathing, but that his breathing problem did not exist anymore. Moreover, he stated, "I don't think I have respiratory problems." See Bd. Hr'g Tr. at 11. Service connection is possible in the absence of a diagnosis when symptoms are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) ("pain alone can serve as a functional impairment and therefore qualify as a disability"). That Federal Circuit decision qualified that holding, however: "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective [symptoms]. To establish the presence of a disability, the veteran will need to show that [his symptoms reach] the level of functional impairment of earning capacity." Id. at 1365. In this case, however, during the pendency of the appeal, the Veteran did not claim that he had a respiratory problem which resulted in a functional limitation. The Veteran has not submitted lay or medical evidence of a diagnosis of a respiratory disorder or describing the effects of a respiratory disorder resulting in functional impairment. Thus, the Veteran does not have a present disability that could be identified as part of his claim for service connection for a respiratory disorder pursuant to Saunders. Accordingly, the Board finds that the Veteran has not had a disability characterized by respiratory issues at the time a claim is filed or at some point during the pendency of his claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Absent a diagnosis for a respiratory disorder, the Board finds that the probative evidence is against the Veteran's claim for service connection. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a respiratory disorder, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND In the December 2019 VA sinus examination report, the examiner noted diagnoses of chronic sinusitis and non-allergic rhinitis. During the examination, the Veteran stated that his symptoms of recurrent nasal congestion and drainage began in 1948. He stated that his current symptoms were worse than service and that nasal congestion made it difficult to breathe through his nose and affected his ability to keep up with physical work. The examiner noted that the available service treatment records showed evaluation for recurrent throat complaints with findings of pharyngeal hyperkeratoses, but that records did not show any complaints or treatment for chronic sinusitis or rhinitis. In a December 2019 VA addendum opinion, the VA examiner opined that it was less likely than not that the Veteran's diagnosed chronic sinus condition was proximately due to or the result of his service-connected bilateral eye trachoma. Nevertheless, the evidence of record does not include a medical opinion specifically addressing whether the Veteran's service-connected bilateral eye trachoma has caused or aggravated his current sinusitis and non-allergic rhinitis. In addition, as discussed above, during the February 2021 hearing, the Veteran testified that he had a hardening of the area around his throat which caused difficulty breathing, which he believed was related to his in-service diagnosis of hyperkeratosis pharynx. Therefore, the case must be remanded for such opinions. The matters are REMANDED for the following action: The AOJ should refer the Veteran's claims file to a VA examiner for a medical opinion as to the nature and etiology of his sinusitis and pharyngitis. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has sinusitis, non-allergic rhinitis, and pharyngitis that is causally or etiologically related to his military service. In rendering this opinion, he or she should specifically address the 1950 diagnosis of hyperkeratosis pharynx. The examiner should also provide an opinion as to whether it is at least as likely as not that any current sinusitis, non-allergic rhinitis, and pharyngitis is either caused by or aggravated by the Veteran's service-connected bilateral eye trachoma. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected disabilities did not cause his current sinusitis, non-allergic rhinitis, and pharyngitis, the examiner should still address whether those disabilities could have worsened his bilateral eye trachoma. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important that each disability be viewed in relation to its history, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda 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.