Citation Nr: 22019544 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-46 074A DATE: April 1, 2022 ORDER Service connection for a lower back disability is granted. Service connection for sinusitis is denied. Service connection for deviated nasal septum is denied. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to a compensable disability rating for a right knee disability is remanded. FINDINGS OF FACT 1. The evidence is in approximate balance as to whether the Veteran's lower back disability is etiologically related to service. 2. The Veteran has not had sinusitis during the period of the claim. 3. The Veteran's deviated septum was not present in service or for many years thereafter and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 3. The criteria for service connection for deviated septum have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty in the United States Army from February 1970 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 decision, the Board denied the Veteran's claim for service connection for a sinus disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties (VA and the Veteran), vacating and remanding the Veteran's claim. When this case was last before the Board in October 2021, it was remanded for additional development. The case has now been returned to the Board for further appellate review. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, arthritis is considered a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, including arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). "[I]f the positive and negative evidence is in approximate balance ... the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Background and Analysis Service connection for a lower back disability In this case, the record shows the Veteran has been diagnosed with lumbar spine arthritis. See October 2013 VA outpatient imaging records. The Veteran's service treatment records (STRs) show that during service, in 1972, the Veteran injured his right knee in a fall. Although there is no record of a lower back injury at the time, the Veteran has maintained that he experienced lower back pain at the time, and did not report it, because the knee pain predominated. He has contended that this injury, combined with long hours bending down, kneeling forward, and performing other activities as a cook on hard tile floors caused the onset of his lower back pain, which has persisted ever since. He has maintained that he treated the back pain with over-the-counter medication for many years until he sought treatment at VA, which the record shows was in approximately 2013. Alternatively, the Veteran has contended his lower back disability is secondary to his service-connected right knee disability. The Veteran was afforded a VA spine examination in December 2020. The examiner referenced medical literature to the effect that military personnel have high rates of musculoskeletal pain, particularly back pain, due to frequent lifting and carrying of heavy loads, jumping, and quick pivoting and running, which causes repeated stress and trauma to the spine. The examiner ultimately concluded, however, that the Veteran's lower back disability was unrelated to service, primarily on the bases of the lack of documented treatment during service, and the long break between service and post-service treatment. In March 2021, the Board remanded the Veteran's claim, noting that the VA examiner had not discussed the Veteran's assertions of continuous symptomatology since service. Additional VA medical opinions were provided in May 2021 and October 2021. Both opinions ultimately attributed the Veteran's lumbar spine arthritis to the natural aging process, and to his post-service career in masonry and construction. While noting the Veteran's reports of continuous symptomatology stemming from service, the examiners' relied instead on the absence of documented lower back treatment during and shortly after service. After review of the foregoing, the Board observes that the Veteran has consistently asserted that he has experienced lower back pain that began during service and has been present ever since. He has maintained that the pain gradually became worse, including up until imaging discovered arthritis in approximately 2013. He has explained that while he did not seek professional treatment earlier, he had self-treated his pain ever since service. The Board finds the Veteran's reported history of continuous lower back pain since service to be credible and probative, as it has been consistently reported in the Veteran's statements to VA and medical providers. The Board notes that the VA medical opinions summarized above weigh against the Veteran's claim. However, the Board observes that the examiners' opinions are based primarily on an implied assumption that the absence of documented lower back treatment is more credible than the Veteran's account of continuous symptomatology. Again, the Board has determined that the Veteran's account is credible and probative. For this reason, the Board finds that while the VA opinions are entitled to some weight, their probative value is limited. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek additional examinations or opinions to more fully discuss the Veteran's condition and reported medical history. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Upon careful consideration of the foregoing, and of the entire record, the Board finds that to the extent there is evidence of record which weighs against the Veteran's claim, the entirety of the evidence is at least in approximate balance as to whether the Veteran's lower back disability is a chronic condition which first manifested in service and has presented continuous symptoms since. Accordingly, service connection is warranted for the Veteran's lower back disability. Service connection for sinusitis and deviated septum As noted above, the Board denied the Veteran's claim for service connection for a sinus disability in a January 2020 decision. The denial was primarily based on a finding that the Veteran had not been diagnosed with sinusitis. In the October 2020 JMPR, the parties observed that the Board had not fully addressed the Veteran's claimed sinus conditions, to include sinusitis, but also allergic rhinitis and a deviated nasal septum. Accordingly, in March 2021 and October 2021 remands, the Board requested that a VA examiner address the etiology of each condition. In light of this procedural history, the Board has recharacterized the Veteran's claim as separate claims for service connection for sinusitis, deviated septum, and allergic rhinitis. As further discussed below, the Board has determined that the first two claims must be denied, while the third must be remanded. Regarding sinusitis, the Board initially notes that the Court has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Veteran's STRs show he was not diagnosed with sinusitis during service. An April 1972 examination noted complaints of postnasal drip, but sinus imaging was normal, and sinusitis was not diagnosed. The Veteran was afforded VA sinus examinations in January 2017, May 2021, and October 2021. The examination reports show the Veteran was not diagnosed with sinusitis. In addition, the Board has thoroughly reviewed the Veteran's extensive VA outpatient treatment records, and observes that he has never been diagnosed with sinusitis by any medical professional. The Veteran has not submitted or referenced any evidence showing he has been diagnosed with sinusitis. After careful consideration of the foregoing, the Board finds that the evidence persuasively shows that the Veteran has not had sinusitis at any time during the period of the claim. Regarding the Veteran's deviated nasal septum, the STRs show that the condition was not noted in service. An April 1972 examination, to include sinus imaging, did not show a deviated septum. Post-service records show no treatment or diagnosis of a deviated septum until the Veteran's January 2017 VA examination, when imaging showed a mild nasal septal deviation to the left. The January 2017 VA examiner determined that the Veteran's deviated septum was unrelated to service. In May 2021, a separate VA examiner agreed, noting the absence of any finding of deviated septum until January 2017. The Board observes at this juncture that the Veteran has provided no specific argument that his deviated septum was present in service, or is otherwise related to service. Upon a review of the foregoing, the Board finds that the evidence persuasively favors a finding that the Veteran's deviated septum was not present in service or for many years thereafter, and is not otherwise related to service. Specifically, the Board notes that the condition was not diagnosed until 2017, approximately 45 years after the Veteran's discharge. In addition, there is no probative medical or other evidence of record to contradict the VA examiners' opinions summarized above, which weigh against the Veteran's claim. In summary, the Board finds that the evidence persuasively favors findings that the Veteran has not had sinusitis during the period of the claim, and that his deviated septum did not originate in and is not related to service. Accordingly, the claims for service connection for sinusitis and deviated nasal septum must be denied. REASONS FOR REMAND Service connection for allergic rhinitis The Board observes that while allergic rhinitis was not noted on the Veteran's induction examination report, there are indications in the record that the Veteran has had allergic rhinitis since childhood. As such, the Board has previously determined that the "presumption of soundness" applies in this case. See 38 C.F.R. § 3.304(b) (a veteran will be considered to have been in sound condition when entering service unless clear and unmistakable evidence demonstrates a condition existed prior to service and was not aggravated by service). The Veteran has consistently reported that his allergic rhinitis has been present since childhood. He has contended, however, that the condition became less symptomatic as he grew older, but that following in-service immunizations, it worsened, often resulting in mucus buildup amounting to 1.5 to 2 cups per night. In its October 2021 remand, the Board directed that a VA examiner should address whether clear and unmistakable evidence showed the Veteran's allergic rhinitis pre-existed service, and if so, whether clear and unmistakable evidence showed it was not aggravated by service. A medical opinion was obtained in October 2021. The examiner detailed evidence showing that the Veteran's allergic rhinitis clearly and unmistakably pre-existed service. With respect to whether the pre-existing allergic rhinitis was aggravated during service, the examiner stated that clear and unmistakable evidence showed there was no aggravation. In support of this opinion, the examiner simply stated that there was no objective evidence showing the condition had been aggravated beyond its natural progression. Upon review, unfortunately, the VA examiner did not address the Veteran's accounts of his in-service symptomatology, to include claimed worsening following immunizations. In addition, the examiner provided no medical rationale for her opinion. For these reasons, the Board finds a remand is warranted for a supplemental medical opinion. Increased rating for right knee disability The Veteran is in receipt of a noncompensable rating for his service-connected right knee disability. He was last afforded a VA examination to assess the severity of his right knee disability in May 2019. Upon review, the Board observes that the examination report contains contradictory findings. For example, while the examiner provided a diagnosis of recurrent right patella subluxation in the beginning of her report, she indicated later in the report that the Veteran did not have a history of recurrent subluxation. The Board also notes that the Veteran has contended that his right knee disability has become progressively worse since the May 2019 examination, which occurred almost three years ago. See December 2021 Statement. In this regard, the Board notes that the where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Under these circumstances, the Board finds that a remand is warranted to determine the current severity of the Veteran's right knee symptoms. The matters are REMANDED for the following actions: 1. Undertake all indicated development to obtain any outstanding private and VA treatment records and associate them with the claims file. 2. Forward the Veteran's claims file to the October 2021 VA examiner (or to another qualified examiner if she is not available) for an opinion regarding the nature and etiology of the Veteran's allergic rhinitis. The Board's reference to evidence in this context should not be construed as a determination of its credibility. See Smith v. Wilkie, 32 Vet. App. 332 (2020). After a review of the relevant records and lay statements, the examiner should provide an opinion as to the following: Whether the Veteran's allergic rhinitis, which pre-existed service, was clearly and unmistakably not aggravated by or during service. In providing his or her opinion, the examiner must address the following: a) The Veteran's contention that his childhood allergic rhinitis became less symptomatic as he aged, but became more severe following in-service immunizations, leading to buildup of 1.5-2 cups of mucus per night. 3. Afford the Veteran a VA examination to determine the current severity of his service-connected right knee disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hampton, 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.