Citation Nr: 22016271 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 14-07 742 DATE: March 21, 2022 ORDER Entitlement to service connection for a sinus condition, to include allergic rhinitis or sinusitis, (sinus condition) is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's sinus condition is causally related to service. CONCLUSION OF LAW The criteria for service connection for a sinus condition have been 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 January 1977 to June 1981. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran was notified of the date, time, and location of a Board hearing he requested in connection with the present appeal. See 38 C.F.R. § 20.704(b). He did not appear for the hearing, request rescheduling of hearing, or provide good cause for his failure to appear. Accordingly, his hearing request has been deemed withdrawn. 38 C.F.R. § 20.704(d). In August 2015 and November 2017, the Board remanded the case for further development. Specifically, in November 2017, the Board remanded the matter to obtain an addendum VA medical opinion. The Board notes that the requested addendum medical opinion was obtained in December 2017, and a copy has been associated with the claims file. Accordingly, after reviewing the actions of the agency of original jurisdiction (AOJ), the Board finds there has been substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Board notes that additional evidence has been added to the claims file following the last adjudication by the AOJ in the October 2018 supplemental statement of the case (SSOC) including a private medical opinion and VA treatment records. However, as the Veteran's substantive appeal was received in February 2014, which is after February 3, 2013, an automatic waiver of evidence submitted by the claimant is presumed. Additionally, in the October 2021 brief, the Veteran's representative, on the Veteran's behalf, waived AOJ consideration of any evidence not previously considered by the AOJ. Moreover, a review of the VA treatment records added to the claims file following the October 2018 SSOC shows they are cumulative or duplicative of evidence previously of record. Accordingly, the Board will proceed with adjudication. Entitlement to service connection for a sinus condition. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (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, 1167 (Fed. Cir. 2004). The Veteran seeks entitlement to service connection for a sinus condition. Specifically, he asserts that he has had chronic sinus problems since 1977. See July 2011 VA Form 21-4138, Statement in Support of Claim. The evidence of record includes an October 1976 enlistment examination which noted normal nose and sinuses. In February 1978, a service treatment record (STR) revealed that the Veteran was diagnosed with an acute viral syndrome. A September 1978 STRs showed he sought treatment for a chest cold and was diagnosed with an upper respiratory infection. A November 1978 STR showed that he reported having upper respiratory symptoms for two to three days. He underwent an ear, nose, and throat (ENT) consultation that revealed normal results and was diagnosed with viral syndrome. A December 1980 separation examination noted normal nose and sinuses. The Veteran reported chronic or frequent colds; ear, nose, or throat trouble; and asthma. He responded "don't know" for sinusitis and chronic cough. The clinician noted recurring sore throats and ear problems due to frequent colds possibly brought on by exposure to cold weather. Thereafter, a June 1995 VA medical record revealed moderate size density arising from the lateral wall of the right maxillary sinus, possibly due to mucocele non-secreting cyst or poly, as well as some degree of chronic right maxillary sinusitis. Further investigation, such as a CT scan, was recommended. A July 1995 CT scan of the paranasal sinuses revealed no definitive air fluid levels involving the maxillary sinus, ethmoid air cells, sphenoid sinus, or the frontal sinus to suggest acute sinusitis. The radiologist noted right maxillary retention cysts and/or mucosal thickening; otherwise, unremarkable CT of the paranasal sinuses. See July 1995 VA medical records. An October 1997 VA medical record indicated that the Veteran reported sneezing, rhinorrhea, congestion, coughing, and occasional emesis from postnasal drainage. A November 1997 CT of the paranasal sinuses revealed a polyp in the right maxillary sinus; the study was found to be otherwise unremarkable. See November 1997 VA medical records. In February 2000, the Veteran reported having constant, year-round nasal drainage. The clinician noted that based on the Veteran's history and symptoms, the most likely diagnosis was chronic allergic rhinitis. See February 2020 VA medical records. A February 2005 CT scan of the paranasal sinuses revealed mild localized mucosal thickening in the anterior lateral aspect of the right maxillary sinus; no evidence of sinusitis was noted. See February 2005 VA medical records. A December 2011 VA ENT consult note indicated that the Veteran reported having chronic sinusitis and infections every three months. The physician noted a review of a September 2011 CT scan, which was negative, and opined that it was more likely that his symptoms might be allergic in nature. A January 2012 VA allergy consult note revealed a diagnosis of perennial allergic rhinitis. A November 2015 VA treatment record noted a diagnosis of chronic rhinitis that is more than likely multifactorial. The allergist noted evidence of a dust mite sensitivity, and ENT suggested that possibly gastroesophageal reflux disease and/or medication inducted rhinitis could be an issue. The Veteran was afforded a VA examination in April 2016. However, the Board notes that the associated VA opinion was determined to be inadequate, and therefore, will not be considered. The Board will only note that the examiner diagnosed the Veteran with allergic rhinitis at that time. A December 2017 VA addendum medical opinion concluded that the Veteran's condition was less likely than not incurred in or etiologically related to service. The examiner indicated that a September 1976 STR noted that the Veteran had tender frontal sinuses and was diagnosed with upper respiratory tract infection, which is not sinusitis. He further indicated that the Veteran was diagnosed with an upper respiratory infection in September 1978, no diagnosis of sinusitis was given at that time. During the 1980 separation examination, the Veteran reported having ear, nose, and throat trouble and the examiner noted "recurring sore throats and ear problems due to frequent colds possibly brought by exposure to cold weather." The examiner noted that a cold is caused by a virus and also upper respiratory infections and diagnosis of chronic sinusitis is not found in the STRs. The examiner stated that a chronic disease lasts three months or more, generally cannot be prevented by vaccines or cured by medication, nor just disappear. Thus, the examiner noted that there were no criteria consistent with a chronic sinus disorder found in the STRs. He indicated a 2011 CT scan of the sinuses, and 2016 nasal endoscopy did not reveal evidence of a chronic sinus disorder. The examiner noted that, by definition, chronic diseases do not disappear, and the Veteran's 1995 medical records do not support a chronic sinus disorder. The examiner further reasoned that, even if, the chronic sinusitis noted in 1995 is supported, it was still years after the Veteran's active service for which there is no documentation of a chronic sinus disorder that lasted three months and that did not resolve with treatment. Thus, he concluded that the Veteran does not have a diagnosis of a sinus condition that was incurred in or caused by his time on active service. He further opinioned that it was less likely than not that the Veteran's sinusitis was manifested in, caused by, or otherwise etiologically related to his service. In contrast, the Veteran submitted a private medical opinion, dated September 2021, from Dr. M.R, who opined that his upper respiratory symptoms during service were consistent with perennial allergic rhinitis. She indicated that the Veteran's STRs revealed multiple complaints of upper respiratory symptoms, including nasal congestion as well as other symptoms of allergic rhinitis. Specifically, a February 1978 note revealed acute viral syndrome with upper respiratory complaints; a September 1978 note revealed tender frontal sinuses with diagnosis of upper respiratory infection; a November 1978 note revealed upper respiratory infection for two to three days with normal upper respiratory examination and diagnosis of viral syndrome; a December 1980 complaint of chronic cold and asthma; and a January 1981 separation examination revealed complaints of recurring sore throat and ear problems due to frequent colds, possibly brought on by exposure to cold weather. Dr. M.R. stated that rhinitis is inflammation of the mucous lining of the nose and that distinction between sinusitis and rhinitis is without difference, medically, since the two conditions very frequently coexist, they are contiguous areas anatomically, and the pathology is the same for both. She further stated that allergic rhinitis is often misdiagnosed as frequent colds. She indicated that despite having symptoms consistent with allergic rhinitis dating back to active duty, the Veteran was not diagnosed with chronic perennial allergic rhinitis until February 2000. Thus, she concluded that it was at least as likely as not that the Veteran's allergic rhinitis with symptoms started during active service. After considering all the evidence of record, the Board finds that it is at least in equipoise that the Veteran's sinus condition is related to service. There is both negative and positive evidence. Although the December 2017 VA examiner provided a negative medical opinion, the reliance partly on no evidence of a chronic sinus condition shown in service renders the medical opinion insufficient since lack of contemporaneous records is not an absolute bar to service connection. Finally, the private physician stated that the Veteran's sinus condition is related to service and considered the service treatment records as well as the Veteran's competent lay statements. Thus, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for his sinus condition is warranted. See 38 C.F.R. § 3.102. In conclusion, the Board resolves reasonable doubt in the Veteran's favor that his sinus condition is related to his service. Service connection for sinus condition is, therefore, granted. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.