Citation Nr: 21031732 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-24 891 DATE: May 24, 2021 ORDER Service connection for chronic sinusitis is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran had chronic sinusitis at any time during or approximate to the pendency of the claim and any reported symptoms do not amount to functional impairment of earning capacity. CONCLUSION OF LAW The criteria for service connection for chronic sinusitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1994 to November 1994 and from November 1996 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case has a long procedural history, to include prior Board decisions and a memorandum decision from the Court of Appeals for Veterans Claims. Most recently this case was remanded by the Board in March 2021 for additional development. The Board finds that the RO has substantially complied with the Board's prior remand order. Dyment v. West, 13 Vet. App. 141 (1999). The Veteran contends that he was treated for chronic sinusitis during his service, and that he is currently receiving treatment for chronic sinusitis. See NOD (July 2012). 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of chronic sinusitis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). STRs show that the Veteran received treatment for sinus issues in November 1994, February 1997, April 1997, September 1998, October 1998, February 1999, and October 1999. Although "chronic sinusitis/bronchitis" was assessed in October 1998, the Veteran's sinus complaints were otherwise assessed (two weeks earlier and in November 1994, April 1997, and October 1999) as viral or environmental in origin. See STR Medical (March 2016). The Veteran reported a history of sinusitis on a September 2000 report of medical history for service separation, but a report of medical examination for service separation shows that the Veteran had a normal physical evaluation of the nose. Id. Private treatment records during the Veteran's service show that allergy testing "suggests the presence of allergy... [but there was n]o evidence of immune defect." See Medical Treatment Record - Non-Government Facility (April 2001). Private treatment records following the Veteran's service show that an attending practitioner opined that the Veteran has chronic sinusitis, and indicated that opinion was based on retracted tympanic membranes, drainage, and poor passage of air through his nasal airways. See Medical Treatment Record - Non-Government Facility (February 2011). Private treatment records following the Veteran's service also show assessments of acute sinusitis and seasonal allergic rhinitis, and that an anti-inflammatory medication was prescribed for "sinus problems." See Medical Treatment Records - Furnished by SSA (December 2018). VA treatment records show that the Veteran complained of sinusitis and reported the use of over-the-counter sinus/allergy medication, but consistently reported having no known allergies to attending clinicians. VA treatment records also show no active medications for a sinus condition, and that medication for allergies and viral infections were only infrequently prescribed during the appeal period. See CAPRI (April 2016), (December 2020). A June 2011 VA examiner opined that there was no evidence of sinusitis based on in-service X-rays and June 2011 computerized tomography (CT) scan results. See VA Examination (June 2011). A May 2016 VA examiner diagnosed sinusitis and rhinitis, based on episodes of sinusitis, and opined that "[t]he most accurate diagnosis for this Veteran's ENT disease is chronic or recurrent rhinosinusitis." See VA Examination (May 2016). That examiner also opined that treatment notes from January 1999 to February 2011 indicated a chronic condition, but further opined that the findings on CT scans in June 2011 and May 2016 did "not indicate a chronic sinus condition... [and were] unlikely to explain the claimed chronic sinus symptoms." Id. A December 2020 VA examiner diagnosed allergic rhinitis and acute sinusitis, with diagnosis dates in 1998, but noted that there was no radiographic evidence of chronic sinusitis and opined that the Veteran had no findings, signs, or symptoms attributable to chronic sinusitis. See C&P Exam (December 2020). Following the most recent Board remand, an opinion addendum was obtained in March 2021. The March 2021 VA clinician opined that is "less likely than not that veteran has any chronic sinus condition that was incurred in, or permanently aggravated beyond, its natural progression by any event or conditon [sic] in service." See C&P Exam (March 2021). The clinician considered the Veteran's October 1996 report of medical history that he had taken sinus medications and his September 2000 report of medical history that he always had problems with sinuses, but opined that such statements did "not rise to the level of "clearly and unmistakably (i.e., it is undebatable) prior to his second period of active duty" regarding any chronic sinus condition." Id. Finally, the examiner reasoned that "CT scanning is the gold standard for diagnosing chronic sinusitis... [and that] according to CT scan reports dated 6/2/2011 and 5/4/2016, veteran DOES NOT HAVE ANY EVIDENCE OF ANY CHRONIC CONDITION." Id. The Board acknowledges that there is conflicting evidence regarding whether the Veteran has a current diagnosis. In instances of conflicting medical opinions, the Board may favor one opinion and assign a higher probative value over another, as long as an adequate statement of the Board's reasoning is given. D'Aries v. Peake, 22 Vet. App. 97 (2008). While private practitioner J.M. stated in a February 2011 letter that the Veteran had chronic sinusitis, there is no indication that J.M. performed any diagnostic tests or reviewed prior imaging results to confirm the presence of sinusitis. While the May 2016 VA examiner diagnosed chronic or recurrent rhinosinusitis, the examiner opined that CT scans in June 2011 and May 2016 showed no chronic sinus condition. Additionally, that examiner opined that treatment notes between January 1999 and February 2011 indicated a chronic condition, but then noted that the findings of imaging results were negative in October 1998 and showed no inflammatory process or fluid accumulation in January 1999. While the December 2020 VA examiner diagnosed allergic rhinitis and acute sinusitis, the examiner opined that the Veteran had no signs or symptoms of a chronic sinus condition and there was no radiographic evidence of chronic sinusitis. The Board finds that the February 2011 private opinion has diminished probative value as it does not support the conclusion reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25 (2007). Additionally, the Board finds that the May 2016 and December 2020 VA opinions have diminished probative value as they contain no reasoned medical explanation connecting the conclusions that the Veteran has a sinus disability diagnosed with the supporting data showing no signs, symptoms, or radiographic evidence of chronic sinusitis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, the May 2016 VA examiner provided no reasoned medical explanation for finding that treatment notes between January 1999 and February 2011 indicated a chronic condition despite negative results on imaging during that same period of time. Id. Ultimately, the February 2011, May 2016, and December 2020 opinions are bereft of thoroughness and detail to support the conclusions reached. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Consequently, the Board gives more probative weight to the March 2021 VA opinion. Although the March 2021 clinician performed no physical examination, the clinician reviewed the Veteran's electronic health record and provided a thorough recitation of the Veteran's complaints and medical findings. Additionally, the opinion is supported by a reasoned medical explanation, which is internally consistent and externally consistent with the negative imaging results of record and the allergy test results from the Veteran's period of service which showed no evidence of immune deficiency. Further, the fact that anti-inflammatory and antihistamine medications for sinus and nasal complaints were prescribed, collectively, for only one and a half years throughout the over ten-year appeal period indicates the lack of a chronic disability, consistent with the March 2021 VA opinion. While the Veteran believes he has a current diagnosis of sinusitis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent March 2021 VA medical opinion. Additionally, the Board notes there is no persuasive evidence showing the Veteran's reported symptoms result in any functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The June 2011, May 2016, and December 2020 VA examinations all report that the Veteran's symptoms do not have any functional impact. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability or functional impairment due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.