Citation Nr: 22018384 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-20 593 DATE: March 29, 2022 ORDER Entitlement to service connection for chronic bronchitis is denied. Entitlement to service connection for a recurring pilonidal cyst is denied. REMANDED Entitlement to a nose disability other than sinusitis is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left jaw disability is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that chronic bronchitis began during active service or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran has had recurring pilonidal cyst at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic bronchitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for recurring pilonidal cyst have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Navy from January 1979 to August 1980. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in September 2021. This matter was originally on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of that hearing is of record. 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 The Veteran contends that she has bronchitis as due to an in-service surgery to repair a residual cleft of the left anterior maxilla. On her application for compensation received in October 2015, the Veteran indicated that she sought service connection for bronchitis secondary to nose condition. On her Notice of Disagreement received in January 2017, the Veteran stated, "The fact that I have Bronchitis now is directly related [to] surgeries that were performed on my nose." On her substantive appeal received in April 2018, the Veteran stated that she had "Bronchitis as secondary to nose condition/surgery build up. I had surgery on my sinuses while I was in service 1979." The Veteran essentially testified in March 2021 that her bronchitis had persisted since service but that she did not see a doctor for it until "maybe ten years after." The question for the Board is whether the Veteran has chronic bronchitis 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 although the Veteran has a current diagnosis of chronic bronchitis, and evidence shows that she underwent a bone grafting procedure to the left maxilla for closure of an oral nasal fistula in conjunction with an osteotomy of the left maxilla during service. The Veteran underwent VA examination in October 2021 at which time she was diagnosed as having chronic bronchitis; however, the examiner opined that such chronic bronchitis was less likely than not due to an in-service event or injury. The examiner explained that the surgical repair of the Veteran's craniofacial abnormalities would not affect lung function and that the Veteran's symptoms of intermittent viral infections and subjective shortness of breath were more likely than not related to her smoking/tobacco use history rather than in service surgical repair of cleft palate and left maxilla. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical opinion to the contrary of record. Although the Veteran believes her chronic bronchitis is related to an in-service injury, event, or disease, she is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran because the record does not show that she 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 VA examiner's reasoned medical opinion. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection is warranted for chronic bronchitis. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. Entitlement to service connection for a recurring pilonidal cyst The Veteran contends that she has a recurring tailbone cyst that originally developed in late 1979 and which was removed. On her Notice of Disagreement received in January 2017, the Veteran stated, "It reoccurs at least an[n]ually and I am unable to sit when it occurs." The Veteran testified in March 2021 that the cyst comes back the size of a swollen pimple in the same spot where she had surgery during service. The question for the Board is whether the Veteran has a chronic disability manifested by a recurrent cyst that began during service or is at least as likely as not related to an in-service injury, event, or disease. The evidence shows that the Veteran underwent excision of a previously infected pilonidal cyst during service. The Board, however, concludes that the Veteran does not have a current diagnosis of a recurring pilonidal cyst 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). VA treatment records are absent complaints, findings or diagnoses of any pilonidal cysts; in fact, they consistently indicate that the Veteran had no wounds, pressure ulcers, or other skin problems except for knee surgical incisions. The Veteran underwent VA examination in October 2021 at which time she stated that she has had intermittent flares of erythema and tenderness but that such resolves. The Veteran denied any treatment including incision/draining or surgical excision. The examiner noted that the Veteran did not have a current skin condition and that the pilonidal cyst in service had been surgically excised and resolved with no scarring. The examiner noted that there were no records to show that a pilonidal cyst recurred after service and that there was no evidence on physical examination of a pilonidal cyst, abscess, cleft, cavity, or sinus tract. There is no medical opinion to the contrary of record. Although the Veteran's contentions that she suffers from recurring pilonidal cysts on her tailbone have been considered carefully, they are outweighed by the medical evidence, as such a diagnosis is medically complex and requires medical expertise. See Jandreau, 492 F. 3d at 1372. Consequently, the Board gives more probative weight to the VA examiner's opinion. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection is warranted for a recurring pilonidal cyst. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND 1. Entitlement to a nose disability 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a left jaw disability As noted above, the Board remanded these issues in September 2021 for additional development, specifically to afford the Veteran an examination so that an opinion as to whether the Veteran's in-service surgical procedures created an additional disability. The Veteran underwent VA examinations in November 2021 at which time the examiner noted that it was difficult to make a judgment due to the natural progression of the condition. The examiner, however, did not provide an adequate explanation. The Veteran's service treatment records include a Report of Medical Examination in August 1978 for the purpose of enlistment into the Navy which noted a prior surgical correction of the cleft palate and hare lip which began at age 4 months and was completed in June 1975. The examiner noted, "No perforation now of hard palate into nasal cavity. Very mild almost imperceptible." In January 1979, the Veteran underwent surgical consultation at which time surgical repair was recommended after successful completed of recruit training. Dental records indicate surgical closure of cleft was planned after successful completion of recruit training at "HRMC Bethesda Oral Surg" on February 6, 1979. In February 1979, the Veteran underwent consultation in Bethesda, Maryland. It was noted that radiographs indicated that the Veteran's residual nasal cleft could be ideally treated by grafting. An April 1979 operation report from National Naval Medical Center, Bethesda, Maryland confirms that she underwent hip and oral surgical procedures to repair cleft hard palate and alveolar and malocclusion of the left maxilla. Specifically, the operation performed was the application of arch bars; procurement of bone from right iliac crest; osteotomy maxillary left hemi-maxilla; and closure of oral antral fistula. A June 1979 plastic surgery consultation report notes that the Veteran needed an evaluation for correction for a nasal deformity. Surgery was scheduled in July 1979. A July 1979 health record indicates that the Veteran completed all of her treatment and was ready to return to full duty. That record noted that the Veteran had undergone a bone grafting procedure to the left maxilla for closure of her oral nasal fistula in conjunction with an osteotomy of the left maxilla which was accomplished in April 1979, that she had an uneventful postoperative course, and that in July 1979 her surgical splint and the circumdental wires were removed. There was no indication that the Veteran had surgery to correct nasal deformity. A July 1979 Narrative Summary noted that the Veteran was admitted on April 3, 1989 and discharged on April 9, 1979, that she underwent left maxilla osteotomy, autogenous iliac crest bone graft to maxilla, and closure oral nasal fistula. Final diagnoses were cleft palate and malocclusion. It was noted that postoperative course in the hospital was unremarkable. The Veteran was seen in May 1980 at the emergency department with trauma to her nose. The Veteran reported that her husband struck her on the right side of her face. X-ray in revealed a 1-millimeter fracture of the tip of the nasal bone but it could not be determined if it was recent or old. Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303 (c). Rather, a defect of congenital, familial or hereditary origin by its very nature preexists military service. Nonetheless, where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). Additionally, the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306 (b)(1); see also Verdon v. Brown, 8 Vet. App. 529 (1996) (holding that the only treatment effects that are not considered service connected are those that improved the condition and lowered the level of disability. In other words, if the preexisting disability is more severe after in-service medical treatment, the increase in the level of disability is service connectable). The Veteran was seen at VA in March 2017 for consultation regarding a full mouth dental extraction. In May 2017, the Veteran underwent extraction of teeth and alveoloplasty of the mandible due to malformed or sharp bone in the jaw that prevented the comfortable fit of dental appliances or caused discomfort. In July 2017, the Veteran presented for oral evaluation at which time a defect was noted in the anterior maxillary and left posterior maxilla in area of tuberosity; high muscle attachments were noted on mandibular arch with shallow floor of the mouth. In January 2018, the Veteran presented for otolaryngology follow up at which time she noted that ever since her in-service surgery, she had noted left sided nasal obstruction. Physical examination demonstrated nasal airway obstruction, cleft nasal deformity, deviated nasal septum, and small left concha bullosa. The physician noted that nasal obstruction was likely due to the septal deviation with contribution from mild left nasal vestibular stenosis from prior surgery. The Veteran underwent septoplasty in February 2018. The question remains whether the Veteran's congenital defect which had been corrected prior to service was more severe after her in-service service surgery. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician concerning any additional disability as a result of in-service correction of her cleft hard palate and alveolar and malocclusion of the left maxilla. (a) The examiner should first confirm that the cleft hard palate and alveolar and malocclusion of the left maxilla is a congenital or development defect. (b) The examiner should then indicate if the congenital or development defect was subjected to a superimposed disease or injury during service, to specifically include in-service surgical procedures which the Veteran asserts created additional disability. In other words, was the congenital or development defect more severe after the in-service medical treatment? The examiner must provide a complete rationale for his/her opinion(s) including identifying any current disabilities created by the in-service surgery including whether in-service surgery created a jaw disability or nasal deformity. The examiner should address the January 2018 notation that the Veteran's nasal obstruction was likely due to the septal deviation with contribution from mild left nasal vestibular stenosis from prior surgery as well as the November 2021 VA examiner's opinion that due to a natural progress of the condition, it was difficult to make a judgment regarding whether the Veteran's cleft hard palate and alveolar and malocclusion of the left maxilla worsened over the years due to in-service surgery. 2. If, and only if, the examiner finds that the Veteran's in-service surgical procedures created additional disability, schedule the Veteran for a VA examination for her claimed right hip disability. The examiner must review the claims file. The examiner is asked to identify all current right hip disabilities which are at least as likely as not related to in-service surgery, specifically procurement of bone from right iliac crest. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion. In providing the requested opinion, consider the Veteran's description of her in-service and post-service right hip symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.