Citation Nr: 22011491 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 12-24 372A DATE: March 1, 2022 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a sinus disability is granted. FINDINGS OF FACT 1. The Veteran's current low back disability began in service and has continued since then. 2. The Veteran's current sinus disability began in service and has continued since then. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for a sinus disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1977 to September 1981, and Reserve service from September 1981 to June 1996. In April 2017, he testified at a hearing before a Veterans Law Judge who is no longer employed at the Board of Veterans' Appeals (Board). See December 2021 notice letter to the Veteran. The December 2021 notice letter informed the Veteran that, if he did not respond within 30 days, the Board would assume he did not want another hearing and would proceed accordingly. The Veteran did not respond to this letter. This matter was previously remanded by the Board in August 2017, March 2020, and November 2020 for further evidentiary development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in active service or a continuity of symptoms since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Further, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Low Back Disability The Veteran assets entitlement to service connection for a low back disability. Specifically, she stated that her back pain onset in 1981 when she injured her back working on a flight line. She stated she continued to have lower back pain, stiffness, muscle spasms, and decreased range of motion that is intermittent in nature. See August 2019 VA examination. Service treatment records (STRs) show reports that the Veteran's back was tender to palpation along the left para-vertebral muscles in August 1980. In June 1981, she reported back aches 3 times per week and that she was "pushing, pulling, lifting power units when necessary." Strained muscles were assessed. During her period in the Reserves, the Veteran complained of tenderness along the lumbar spine and low back pain affecting the musculature in October 1985. Pay records confirm this was during a period of training. In an August 1988 Report of Medical Examination, it was noted the Veteran strained her lower back muscles secondary to a falling incident and was still taking medication. Post-service, the Veteran underwent multiple VA examinations, including in September 2010, August 2019, and April 2020. However, prior Board decisions have found these examinations and accompanying medical opinions inadequate as they erroneously based their opinions on a lack of continued treatment for a back disability from the time of active service to the present, and/or provided incomplete rationales for given medical conclusions. Pursuant to the November 2020 Board remand, the Veteran was afforded a new VA examination in April 2021 to determine the nature and etiology of her back condition. The examiner acknowledged the Veteran's diagnoses of degenerative arthritis and degenerative disc disease of the thoracolumbar spine. The examiner, however, opined that it was less likely than not that the Veteran's low back condition incurred in or was caused by active service. The examiner explained that while the Veteran had in-service complaints of back pain, there is a lack of continuing treatment to suggest a chronic condition during service. The examiner found that the complaints in October 1985 and August 1988 were purely subjective, as there were no diagnostics to confirm an injury. Further, the Veteran's complaints of back pain were outside her service dates. There was no evidence of overuse of the back during service and general wear and tear over 4 years of service would not produce a chronic injury. In this regard, the Board finds that the April 2021 VA examiner's opinion improperly based the negative nexus opinion on a lack of evidence for an in-service diagnosis of a back condition and a lack of evidence for continuous treatment for back pain symptoms between the time of the Veteran's separation from service and the current diagnosis. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [a] disability such that a [service connection claim] could be proven without contemporaneous medical evidence"). Additionally, the examiner did not address the Veteran's competent lay testimony that her back pain onset in 1980 when she injured her back while pulling a power unit of a flight line. As such, the examiner's opinion is not probative regarding the onset of the Veteran's back disability, and the Board affords the opinion less probative value than the other evidence of record, specifically the Veteran's lay testimony. Indeed, the weight of the evidence supports a finding that the symptoms of the Veteran's back disability began in service and have continued since then. The Veteran has consistently reported experiencing back pain since her 1981 in-service incident. She is competent to report her symptoms and observations, and the Board finds no reason to question the credibility of her reports regarding the onset of her symptoms. See Layno, 6 Vet. App. at 470. Thus, affording her the benefit of the doubt, the Board finds that she has experienced symptoms of her thoracolumbar spine disability since service. Service connection for this back disability is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. The Board notes that this issue also included a claim for secondary service connection however, as service connection is being granted on a direct basis, consideration of other theories of entitlement is not necessary, as direct service connection is considered to be the greater benefit. Sinus Disability The Veteran asserts entitlement to service connection for sinusitis. At her April 2017 Board hearing, she indicated that she went to sick call in November 1977 for swollen tonsils and mucus and was put on medication. She indicated that after that she kept getting sinus infections and would be prescribed antibiotics to help her feels better. She indicated this had been a chronic problem since entering the military. She indicated having sinus surgery and that it had not "corrected the situation." STRs indicate the Veteran had an upper respiratory infection (URI) in July 1979 and several recurrences of tonsillitis, to include in August 1978 and February 1981. Treatment was also noted for rhinorrhea, pharyngitis/cold symptoms and a viral syndrome in November 1979, December 1979, and April 1981, respectively. The Veteran indicated having sinusitis in an August 1988 Report of Medical History during her time in the Reserves. Post-service treatment records indicate a diagnosis of chronic sinusitis and that the Veteran underwent sinus surgery in January 2009. Private treatment records dated in November 2009 indicated treatment for sinus pressure, headache, and drainage. A history of recurrent sinusitis was noted, post sinus surgery. Additionally, a September 2017 VA treatment record indicates the Veteran had been recently seen by a civilian provider for sinusitis and had experienced improvement after taking medication. A January 2020 VA treatment record lists acute maxillary sinusitis as an active problem for the Veteran. The Veteran underwent multiple VA examinations to determine the nature and etiology of her sinus condition, to include in August 2019 and March 2020. Specifically, the August 2019 VA examiner confirmed a diagnosis of acute sinusitis while the March 2020 VA examiner, instead, diagnosed allergic rhinitis. As such, prior Board decisions have found these examinations and accompanying medical opinions inadequate as they consistently state that the Veteran does not have a diagnosis of sinusitis, despite the medical evidence indicating recurrent sinus issues and diagnoses. In this regard, pursuant to the March 2020 Board remand, the Veteran was afforded VA examination in April 2021. The VA examiner found no diagnosis of sinusitis, but confirmed an allergic rhinitis diagnosis. The examiner opined that it was less likely than not that the Veteran's claimed sinus disability incurred in or was caused by active service. The examiner explained that although the Veteran has had a chronic sinusitis diagnosis and operation in 2009, this occurred more than 20 years after service. As such, the sinusitis condition is considered resolved, and there is no pathology to render a diagnosis. Further, the service treatment records lack any indication of a chronic allergic rhinitis condition and, as such, it is less likely than not that this condition incurred in or was caused by the Veteran's active service. In this regard, the Board finds that the April 2021 VA examiner's opinion improperly based the negative nexus opinion on a lack of evidence for an in-service diagnosis of a sinusitis or allergic rhinitis. Additionally, while the examiner found that the sinusitis condition had resolved after the Veteran's 2009 operation, the examiner failed to discuss the September 2017 and January 2020 VA treatment records indicating sinusitis as an active problem for the Veteran. Additionally, the examiner did not address the Veteran's competent lay testimony that she experienced recurrent sinus problems in service and that her sinus surgery had not "corrected the situation." As such, the examiner's opinion is not probative regarding the onset of the Veteran's sinus disability, and the Board affords the opinion less probative value than the other evidence of record, specifically the Veteran's lay testimony. See Buchanan, 451 F.3d at 1331, 1336. (Continued on the next page) Indeed, the weight of the evidence supports a finding that the symptoms of the Veteran's sinus condition began in service and have continued since then. The Veteran has consistently reported experiencing upper respiratory symptoms, including recurrent sinusitis. She is competent to report her symptoms and observations, and the Board finds no reason to question the credibility of her reports regarding the onset of her symptoms. See Layno, 6 Vet. App. at 470. Thus, affording her the benefit of the doubt, the Board finds that she has experienced symptoms of a sinus disability since service. Service connection for a sinus disability is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.