Citation Nr: 21029052 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-13 804 DATE: May 12, 2021 ORDER Entitlement to service connection for chronic sinusitis is denied. Entitlement to total disability due to individual unemployability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's chronic sinusitis had its onset in service in the line of duty or was otherwise etiologically related to service. 2. As noted in our prior decision, the weight of the competent evidence shows that the Veteran's in-service head injury, nasal laceration and left finger fracture were not incurred in the line of duty but were incurred as a direct result of an act of willful misconduct 3. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The Veteran's chronic sinusitis was not incurred in active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for a TDIU based upon service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July1979 to July 1982. This case has a long and extensive procedural history. Most recently, the Veteran's claims were remanded by the Board in a November 2020 decision. The Board finds that the RO has substantially complied with the November 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for chronic sinusitis The Veteran contends that his chronic sinusitis is the result of an in-service injury resulting from a November 1981 motor vehicle accident (MVA). Service treatment records and private treatment records show treatment following a November 1981 MVA. The treatment records indicate that the Veteran was in "a very high-speed accident and ran into a pole." The treatment records further indicated that the Veteran had a blood alcohol concentration of 0.21%, which is over twice the legal limit. The Board notes that no compensation shall be paid if the death or disability is a result of a Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1(n). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). In November 2011, the VA issued an administrative decision stating that the Veteran's injuries sustained in the November 1981 MVA were not incurred in the line of duty because they were the result of willful misconduct. As rationale, the decision noted that the Veteran was clearly intoxicated when he made the decision to drive based on the medical treatment records indicating the Veteran had a BAC of 0.21%. The decision further indicated that the Veteran's injuries were not in the line of duty, but rather, the result of his wanton disregard for the probable consequences of driving at an excessive speed while intoxicated. The Board notes that the Veteran has not disputed or specifically appealed the findings of the November 2011 VA administrative decision finding willful misconduct. Other than the November 1981 MVA, the Veteran's service treatment records (STRs) are silent as to any complaints, injuries, diagnoses, or treatment for chronic sinusitis. The Board does note an October 1981 acute complaint of congestion and cold symptoms and indication that sinuses were clear to palpation. In February 2021, the Veteran was afforded an updated VA examination regarding possible chronicity of symptoms. The Veteran reported that his breathing difficulties had their onset with the MVA in 1981. The examiner noted a diagnosis of chronic sinusitis based on X-rays in 2010. The Veteran reported monthly episodes of sinusitis, and the examination revealed tenderness in sinus maxillary regions. The VA examiner opined that it was less likely than not that the Veteran's current chronic sinusitis arose in or is otherwise etiologically related to service. As rationale, the examiner noted that the STRs indicated there was no nasal fracture or septal deviation. The examiner further noted that there were no records for treatment or evaluation of sinus issues for decades after the alleged event occurred. The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). As such, the Board acknowledges the Veteran's lay statements regarding the nature and etiology of his chronic sinusitis. However, while a veteran is competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, they are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of the Veteran's disability. The objective medical evidence does not show that the Veteran's chronic sinusitis incurred in the line of duty or was otherwise aggravated during his military service. Thus, the weight of the evidence is against finding that the Veteran's current sinus disability is related to the injury incurred in service. The Board further notes that even if the Veteran's current chronic sinusitis was related to the November 1981 injury as contended by the Veteran, the disability would not be eligible for service connection as it was due to the Veteran's willful misconduct. 38 U.S.C. § 1110. The benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C. § 5107. 1. Entitlement to total disability due to individual unemployability The Veteran claims that his disabilities prevent him from securing and maintaining gainful employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that an Appellant is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran does not have any service-connected disabilities. Therefore, a TDIU must be denied as there are no service-connected disabilities which could be found to be productive of individual unemployability. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.