Citation Nr: 21041409 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-56 820 DATE: July 9, 2021 ORDER Entitlement to service connection for chronic bronchitis is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for deviated nasal septum, status post septoplasty, is remanded. FINDING OF FACT The Veteran's currently diagnosed chronic bronchitis has not been shown to be at least as likely as not causally related to his service or an incident of service origin. CONCLUSION OF LAW The criteria for service connection for chronic bronchitis are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to October 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board remanded the case for further development in September 2019, at which time it also remanded the claim of entitlement to service connection for rhinitis. Subsequently, in an October 2020 rating decision, the RO granted service connection for allergic and non-allergic rhinitis. This constitutes a full grant of the benefit sought on appeal. Therefore, that issue is no longer on appeal before the Board. Service Connection 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). 1. Entitlement to service connection for chronic bronchitis. Then Veteran contends that the onset of his bronchitis was during his military service. During a June 2014 RO hearing, he stated that he first experienced bronchitis while he was serving in Germany. During his June 2017 hearing testimony, the Veteran stated that while in service, he was treated for bronchitis. Service treatment records note bronchitis in December 1989 and August 1991. In September 2013, the Veteran was afforded a VA respiratory examination. The examiner opined that the Veteran has chronic obstructive pulmonary disease (COPD), a.k.a. chronic bronchitis, but his current respiratory issues are less likely than not related to his time in service. The examiner noted that this is not what the Veteran had while in service and he had a self-limited illness in service. The Board found that this rationale is not sufficient as the examiner did not clearly indicate 'what the Veteran had in service,' particularly given notations of bronchitis in December 1989 and August 1991on his service treatment records. In December 2019, a VA examiner noted a diagnosis of COPD and opined that the Veteran less likely as not has a diagnosis of chronic bronchitis that is incurred in or caused by the respiratory condition during service. The examiner explained that the Veteran's lung condition in active duty was treated as an acute condition which responded to treatment and resolved per chest X-rays. To that effect, in 1991 and 1994, chest X-ray was within normal limitsan no acute process. In December 1989, there were infiltrates consistent with pneumonia. In 2003, the Veteran was diagnosed with asthma; COPD was diagnosed in 2013 with chest X-ray showing "interstitial prominence which may be fibroemphasematous." The examiner further noted that the Veteran had a smoking history of up to four packs per day, and per major medical literature, the most important cause of COPD is cigarette smoking. This VA examiner's opinion is probative because it is based on a thorough review of the Veteran's claims file and his complete and accurate medical history, and provides clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds that the December 2019 VA opinion is well-reasoned and based on an objective, independent review of the relevant evidence. While the Veteran believes he has chronic bronchitis that had onset in service, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it does not lie within the range of common experience or common knowledge but requires special knowledge or special experience in the field of pulmonary pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2019 VA examiner's opinion. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sinusitis is remanded. 2. Entitlement to service connection for deviated nasal septum, status post septoplasty, is remanded. In September 2019, the Board remanded these claims to clarify current diagnoses for the claimed disabilities. To that effect, in an August 2013 VA examination repot, the examiner noted that the Veteran currently had symptoms attributable to chronic sinusitis, i.e., episodes of sinusitis, pain and tenderness of affected sinus, and purulent discharge or crusting. However, in the end the examiner remarked that the Veteran does not appear to exhibit signs of sinusitis. In October 2020, another VA examiner stated that the Veteran had sinusitis during military service but did not have a current diagnosis of sinusitis. It was also noted that the Veteran had deviated septum, that did not exist prior to service but did not occur in service and had surgery to correct it during service but did not have a current diagnosis of deviated septum. However, the Board finds that the medical opinion continues to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The October 2020 VA examiner merely reiterated that the Veteran currently does not have a diagnosis of sinusitis or deviated septum, but does not have offer any rationale of such opinion. For example, the examiner does not address the August 2013 VA examiner's finding the Veteran currently had symptoms attributable to chronic sinusitis, i.e., episodes of sinusitis, pain and tenderness of affected sinus, and purulent discharge or crusting. Additionally, there are inconsistent diagnoses regarding the deviated septum. Private treatment records show that the Veteran underwent a septoplasty in December 2013 for chronic nasal obstruction, deviated septum, and turbinate hypertrophy. However, the examiner did not provide any meaningful discussion of such evidence. In this regard, the Board also emphasizes that the definition of current disability for VA compensation purposes is broad and includes intermittent manifestations. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McLain on a recent diagnosis even predating the filing of a claim). The Board therefore needs more medical comment to assist in making critical determinations in these claims. The matters are REMANDED for the following actions: 1. Obtain any updated VA treatment records, since March 2021, from the VA Medical Center in Columbia, South Carolina, to include all associated outpatient clinics, and associate these records with the claims folder. All attempts to obtain these records must be documented. 2. Schedule the Veteran for an appropriate VA examination by a VA examiner other than the August/September 2019 VA examiner, to determine the etiology of the claimed sinusitis and deviated septum. The claims folder and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should first opine as to whether the Veteran, at least as likely as not (50 percent probability or more), has any current chronic sinusitis or deviated septum. If any chronic sinusitis or deviated septum disorder is found, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that such disorder is related to the Veteran's military service. The examiner is asked to fully consider the Veteran's lay statements regarding the onset and symptoms of the claimed disabilities in detail. If the examiner finds no current sinusitis or deviated septum, the examiner must address any conflicting medical evidence of record, in particular, the examiner must reconcile this finding with the record showing these diagnoses. A complete rationale for any opinion expressed should be provided. 3. After completing the above, readjudicate the claims. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.