Citation Nr: 21028511 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-27 481A DATE: May 11, 2021 ORDER Entitlement to service connection for sinusitis is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for an eye disability is remanded. FINDING OF FACT The most probative evidence establishes that the Veteran's current sinusitis, variably diagnosed as allergic rhinitis, is not etiologically related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1971 to March 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2014 and May 2015 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The claims seeking entitlement to service connection for bilateral knee, right ankle, and eye disabilities were denied in a November 2018 Board decision and appealed to the United States Court of Appeals for Veterans Claims (Court). The Court issued a memorandum decision in August 2020 vacating the matters and returning them to the Board for additional consideration. The bases for the vacatur of each claim are discussed in the "Reasons for Remand" section below. The November 2018 Board decision also remanded a claim seeking entitlement to service connection for sinusitis for a VA examination. This matter has returned to the Board for appellate consideration, and there has been substantial compliance with the November 2018 Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have alleged otherwise. Service Connection for Sinusitis The Veteran seeks entitlement to service connection for sinusitis, alleging that he experienced this disability during service and on a continuous basis since service. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. The Veteran's VA and private treatment records confirm a current diagnosis of sinusitis within the appellate period. Additionally, a September 2019 VA examiner variably diagnosed the Veteran with allergic rhinitis and noted that the Veteran experienced episodes of sinusitis, although chronic sinusitis was not established based on a normal radiograph of the sinuses. The current disability element of a service connection claim under Shedden is satisfied. Regarding in-service incurrence, the Veteran's service treatment records contain an April 1973 notation of "possible sinusitis." Resolving reasonable doubt in the Veteran's favor, the evidence demonstrates that the Veteran experienced an in-service incurrence of disease or injury and the second Shedden element is satisfied. The Board now turns to the dispositive issue of medical nexus. The Veteran has alleged that he has experienced sinusitis on a continuous basis since service. The Veteran is competent to report the onset and continuity of his perceived symptoms as these are within the realm of his personal experience. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board does not find the Veteran's lay reports of continuity to be credible based on the current evidentiary record. The Veteran's service treatment records document an acute episode of "possible sinusitis" in April 1973. At the February 1975 separation examination, the Veteran's sinuses were found to be clinically normal. In the February 1975 Report of Medical History (dated in the European style of 04/02/75), the Veteran affirmatively denied the presence of sinusitis. At a November 1975 National Guard examination, the Veteran's sinuses were clinically normal, and at the corresponding Report of Medical History, the Veteran again affirmatively denied the presence of sinusitis. At another Report of Medical History from April 1976 (dated in the European style of 14/04/76) the Veteran affirmatively denied the presence of sinusitis. For more than a year following separation from service, the Veteran consistently denied the presence of sinusitis, which runs contrary to his later statementsmade exclusively in the course of seeking VA compensation benefitsalleging continuity of symptoms since service. Accordingly, the Board finds the Veteran's lay reports regarding continuity of symptoms since service lack credibility based on the current evidentiary record. To be clear, in reaching the above conclusion, the Board does not rely solely on the absence of contemporaneous evidence corroborating the Veteran's reports of continuity. Instead, there is evidence in the February 1975, November 1975, and April 1976 Reports of Medical History, where the Veteran, himself, affirmatively denied the presence of sinusitis. The Board places greater evidentiary weight on the affirmative denials issued by the Veteran decades prior to the filing of his service connection claim, than his later statements alleging continuity of symptoms since service separation, which may be influenced by the Veteran's pecuniary interest in obtaining VA benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest may affect the credibility of testimony); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The Board acknowledges the Veteran's lay reports that he was unaware of the VA health system until years after service, and thus, he did not get follow-up treatment for his conditions, which he alleges he has continuously experienced since his active duty service. See e.g. February 2016 Notice of Disagreement, June 2016 VA Form 9. This explanation, made in attempt to explain the large evidentiary gap in treatment, does not explain why the Veteran denied the presence of sinusitis in the February 1975, November 1975, and April 1976 Reports of Medical History, and such statements do not impact the Board's credibility finding. Pursuant to the November 2018 Board remand, the Veteran was afforded a VA examination in September 2019. The VA examiner acknowledged the service treatment record from April 1973, which diagnosed the Veteran with "possible sinusitis." Following a complete review of the electronic claims file, and an in-person physical examination, the VA examiner issued a negative medical nexus opinion. The VA examiner explained that the Veteran's chronic sinusitis, variably diagnosed as allergic rhinitis, was less likely than not related to his active duty service because the April 1973 episode of "possible sinusitis" was acute only, and there was no evidence of chronicity of care. The Board finds this VA medical opinion to be factually accurate and supported by the current evidentiary record. Indeed, the record shows an acute episode of "possible sinusitis" in April 1973, but the sinuses were deemed clinically normal at the February 1975 separation examination and at the November 1975 National Guard examination. The record does not show treatment for sinusitis again until March 2013a gap of nearly 40 yearswhere VA treatment records state that the Veteran's sinuses were cleared with Claritin medication. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). Additionally, the Board has determined the Veteran's lay reports of continuity of symptoms since service to be lacking in credibility; thus, the VA examiner was correct in asserting there was no chronicity of care following service. For these reasons, the Board finds the September 2019 VA medical opinion to be probative and sufficient to resolve the appeal. In light of the above analysis, the preponderance of the evidence weighs against the Veteran's claim seeking entitlement to service connection for sinusitis. The Veteran's lay reports of continuity of symptoms since service are entitled to little probative value, and the September 2019 VA medical opinion is probative and weighs against the claim. As the third Shedden element has not been met, the Veteran's appeal seeking service connection for sinusitis must be denied. REASONS FOR REMAND Service Connection for Bilateral Knees The August 2020 Court decision vacated the November 2018 Board decision's denial of entitlement to service connection for left and right knee disabilities. The Court accepted the Secretary's concession that the November 2018 Board decision lacked sufficient reasons and bases to facilitate judicial review. In the Secretary's brief, he indicated that the Board erroneously determined that the Veteran did not experience a bilateral knee disability for VA compensation purposes, as a December 2013 VA treatment record and a September 2013 radiograph documented the presence of degenerative joint disease in both knees. Additionally, the Secretary noted that the Board erred in concluding there was no competent evidence indicating that the Veteran's knee pain was related to service, as VA treatment records in December 2013 and September 2013 memorialized the Veteran's complaints that he had experienced knee pain since service. The Secretary agreed that vacatur was warranted as to these claims, and suggested that the Board should conduct an analysis pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), to determine whether a VA examination is necessary to resolve the appeal. Here, the record shows that the Veteran has experienced a current left and right knee disability during the appellate period. Additionally, the Veteran's service treatment records contain a notation from April 1974 indicating that the Veteran experienced a history of arthralgias with running, to include symptoms in the left knee. The Board finds that this evidence, combined with the Veteran's competent reports of experiencing bilateral knee pain on a continuous basis since service, satisfies the low threshold needed to trigger VA's duty to obtain a VA examination. McLendon, 20 Vet. App. at 83. The Board intimates no opinion at the current juncture regarding the credibility of the Veteran's lay reports of continuity of symptoms since service. In light of the above, the Veteran's claims are remanded for the RO to schedule a VA examination. Service Connection for Right Ankle Disability The August 2020 Court decision vacated the November 2018 Board decision's denial of entitlement to service connection for a right ankle disability. The Court held that the Board implicitly determined the Veteran's reports of intermittent heel pain to be credible, and thus, the May 2015 VA examination report was inadequate, as it was based, in part, on the conclusion that the Veteran had no ongoing sequelae following an October 1972 in-service right Achilles contusion and the injury was self-limiting, despite the Veteran's lay reports to the contrary. Accordingly, this claim shall be remanded for an addendum VA medical opinion that fully considers the Veteran's lay reports. Service Connection for Eye Disabilities The August 2020 Court decision vacated the November 2018 Board decision's denial of entitlement to service connection for an eye disability. First, the Court held that the Board failed to discuss two of the Veteran's eye conditionspinguecula and dry eye syndromeand whether these disabilities were incurred in service. Second, the Court determined that the November 2017 VA medical opinion, which was relied upon to deny entitlement to service connection for an eye condition, was inadequate. The Court explained that the VA examiner diagnosed the Veteran with a "minor opacity of the cornea, right eye" but then explained that the Veteran's in-service battery acid injury could not have caused the Veteran's glaucoma because he did not have telltale "damage to the surrounding structures, including opacification of the cornea." The Court found these statements to be internally inconsistent and concluded that the November 2017 VA examination was inadequate. The internal inconsistency in the VA examination report, as implied by the Court, appears to involve the VA examiner's use of the present tense as opposed to the past tense. The VA examiner diagnosed the Veteran with a right eye corneal opacity, but when explaining why the Veteran's in-service battery acid injury did not result in the Veteran's glaucoma, the VA examiner explained, "if the acid had caused enough damage to the interior of the eye to cause glaucoma, there would have been a decrease in visual acuity and damage to surrounding structures, including opacification of the cornea and conjunctival adhesions (both of which are not present)." (emphasis added). Despite the use of the present tense in the boldened portion of the statement above, and based on contextual clues in the remainder of the opinion, it is clear to the undersigned that the VA examiner diagnosed the Veteran with a current minor opacity of the cornea in the right eye, but concluded that the Veteran's current glaucoma was unrelated to his in-service battery acid injury because at the time of the accident in December 1973, he did not exhibit damage to the interior of the eye, such as opacification of the cornea or conjunctival adhesions, and there was no decrease in visual acuity. This conclusion is accurate, as the Veteran's injury was immediately irrigated with water and three days later there were no complaints. At the service separation examination in February 1975, the Veteran's eyes were clinically normal, and his uncorrected vision was 20/20. Nevertheless, the Board will remand the claim in compliance with the Court's decision as to this aspect of the claim. Third, the Court requested that the Board consider whether the VA examiner's conclusion that many of the Veteran's eye conditions were related to age rather that his in-service injury was adequate for adjudicative purposes. The Board finds no inadequacy in the November 2017 VA medical opinion in this regard. As a medically trained optometrist, the VA examiner was qualified to determine whether the Veteran's clinical presentation was suggestive of age-related deterioration as opposed to trauma. The VA examiner conducted a thorough physical evaluation of the Veteran's eyes and determined that his cataracts, presbyopia, hyperopia, and astigmatism were consistent with what would be medically expected in a person of the Veteran's age. In this regard, the Board finds these medical opinions to be supported by a rational explanation based on the VA examiner's medical expertise and established medical principles. No further evidentiary development is required in this regard. In compliance with the Court's decision, the Board shall remand this matter for an addendum VA medical opinion that addresses the etiology of the Veteran's pinguecula and dry eye syndrome, and clarifies the VA medical opinion regarding the Veteran's glaucoma and in-service battery acid injury. Lastly, the RO is requested to obtain updated VA treatment records from June 2020 to the present, if such evidence exists. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2020 to the present, if such evidence exists. 2. Schedule the Veteran for a VA examination before an appropriate VA examiner to assess the nature and etiology of the Veteran's claimed left and right knee disabilities. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner must address the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left and right knee disabilities (diagnosed as bilateral degenerative joint disease) were incurred in or are otherwise etiologically related to the Veteran's active duty service? The VA examiner is requested to consider the Veteran's competent reports of experiencing continuous pain in his knees since service. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, then the examiner must state so, with a complete explanation in support of such a finding. 3. Obtain an addendum VA medical opinion from an appropriate VA examiner to address the etiology of the Veteran's current right ankle disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner must address the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current right ankle disability was incurred in or is otherwise etiologically related to his active duty service, to include an October 1972 in-service right Achilles contusion? The VA examiner is requested to address the Veteran's competent and credible lay reports of experiencing intermittent heel pain since service. 4. Obtain an addendum VA medical opinion concerning the Veteran's current eye disabilities from the November 2017 VA examiner, or, if unavailable, another appropriately qualified VA examiner. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner must address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current pinguecula and dry syndrome are etiologically related to the Veteran's active duty service, to include his December 1973 battery acid injury to the eyes? (b.) The VA examiner is requested to review the November 2017 VA medical opinion declining to link the Veteran's current bilateral glaucoma to his in-service battery acid injury to the eyes, and reconcile the current diagnosis of minor opacity of the cornea of the right eye, with the negative medical nexus statement, based in part, on the conclusion that the Veteran did not experience opacification of the cornea. 5. The RO is requested to ensure that all medical opinions are supported by a complete explanatory rationale based on the respective VA examiner's medical expertise; the VA examiner's clinical experience; current medical principles; and citations to the record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante 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.