Citation Nr: 22033859 Decision Date: 06/09/22 Archive Date: 06/09/22 DOCKET NO. 18-13 596 DATE: June 9, 2022 ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. The Veteran's sinusitis was noted at entry into service. 2. The Veteran's sinusitis did not worsen beyond a normal progression in or during service. 3. The Veteran's migraine headaches and back disability began during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for migraine headaches and a back disability are 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 served on active duty in the United States Army from October 1990 to August 1995 and from May 1999 to December 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran testified at a video conference before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38U.S.C. §§1110, 1131; 38C.F.R. §3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38C.F.R. §3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38C.F.R. §3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38U.S.C. §§1101, 1112; 38C.F.R. §§3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38C.F.R. §§3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38C.F.R. §3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38C.F.R. §3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021) (en banc). 1. Entitlement to service connection for sinusitis The Veteran contends that her sinusitis was caused or aggravated by her service. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran's sinusitis was noted upon entry into service. See March 1990 Enlistment Examination. Therefore, the presumption of soundness does not attach because the sinusitis was well documented in the Veteran's entrance examination. 38 C.F.R. § 3.304 (b). The Board has considered the competent lay statement by the Veteran and her mother that her sinusitis did not preexist service; however, the Board places more probative weight on the entrance examination noting at the time of entry into service that the Veteran had a history of sinusitis and finds it more credible as it was made contemporaneously with entrance into service. This finding is also supported by the April 2015 VA examiner who found the Veteran's sinusitis condition clearly and unmistakably preexisted service. Nonetheless, in Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held that if a pre-existing disorder is noted upon entry into service, the Veteran may bring a claim for service-connected aggravation of that disorder. In this regard, 38 U.S.C. § 1153 applies, and the burden falls on the Veteran to establish an increase in disability during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 451 F.3d at 1377. A May 2003 service treatment record noted the Veteran complaining of extreme congestion. She was diagnosed with acute sinusitis. Service treatment records in February and May 2004 note the Veteran complaining of sinus congestion and receiving a diagnosis of nasosinusitis. The Veteran underwent a VA examination in April 2015. The VA examiner indicated the Veteran's sinusitis clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner further stated that the Veteran's sinusitis did not behave any differently in service than it did prior to service. The Board finds this opinion highly probative as the examiner reviewed all the Veteran's records and provided a thorough rationale for his conclusion. The Board also finds that while the Veteran and her mother are competent to describe lay observable symptoms (such as the Veteran's general health) they are not competent to opine that her sinusitis was aggravated by her military service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board does not find that the Veteran has shown her sinusitis worsened during service. Even if she had, VA could meet its burden to rebut this presumption of aggravation as the VA examiner opined that the Veteran's sinusitis clearly and unmistakably did not worsen beyond its natural progression during service. The evidence therefore is against a finding that there was an increase in severity of the Veteran's preexisting sinusitis during service beyond its natural progression, and the presumption of aggravation is not for application. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as there is not an approximate balance of positive and negative evidence regarding the claim that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 2. Entitlement to service connection for migraine headaches 3. Entitlement to service connection for a back disability The Veteran seeks service connection for migraine headaches and a back disability that she contends began in service and has continued since service. The Veteran has current diagnoses of a lumbar sprain with left lower extremity radiculopathy and migraine headaches. See April 2014 VA Examinations. The April 2015 VA examiner noted the Veteran's migraine headaches and back disability began during service. A January 1992 service treatment record (STR) noted the Veteran had sacroiliac joint pain in her back. Another STR in 1992 noted the Veteran complaining of mechanical back pain. In January 1994, a STR noted the Veteran had an accident in 1990 and complained of low back pain. A February 1995 STR notes the Veteran fell 6 to 9 feet and struck her coccyx. A February 2000 STR notes the Veteran reporting migraine headaches. An April 2005 STR also notes the Veteran complaining of migraine headaches. Following service, VA treatment records show continued treatment for migraine headaches and a back disability. The Veteran underwent a VA examination in April 2015. The VA examiner opined it was less likely than not that the Veteran's current migraine headache was the same migraine headache as in service. The VA examiner also failed to provide a direct nexus opinion for the Veteran's back disability. The Board finds this opinion lacks probative value as it is based on an inaccurate factual premise (that the Veteran has had the same headache since service as opposed to the actual claim by the Veteran that she has continued to experience migraine headaches in and since service). Instead, the Board finds the STR's, VA treatment records, and lay statements of the Veteran highly probative as they all note the Veteran experienced a back disability and migraine headaches in and since service. Accordingly, the Board finds the Veteran's back disability and migraine headaches had their onset in service, and service connection is warranted. The claims are granted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Boyd, 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.