Citation Nr: 1341640 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 09-17 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for headaches related to sinusitis or allergic rhinitis/ hay fever. 3. Entitlement to service connection for sleep disturbances/sleep apnea, to include as secondary to residuals of a broken nose. 4. Entitlement to an initial compensable rating for residuals of a broken nose and decrease in smell. 5. Entitlement to an effective date earlier than March 17, 2007 for the grant of service connection and the initial award of a noncompensable rating for residuals of a broken nose and decrease in smell. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from September 1985 to September 1992. He also had additional service in the United States Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In the July 2007 rating decision, the RO denied service connection for residuals of a broken nose and decrease in sense of smell, sinusitis with headaches, and sleep apnea. The RO also denied what has since been characterized by the Board as service connection for sinusitis with headaches and sleep disturbances/sleep apnea, to include as secondary to residuals of a broken nose. In October 2012, the Board remanded the claims of service connection for residuals of a broken nose and a decrease in sense of smell, and sinusitis with headaches and sleep disturbances/sleep apnea, to include as secondary to residuals of a broken nose, to the Appeals Management Center (AMC), for additional development and clinical information. In a May 2013 rating decision, the AMC granted service connection for residuals of a broken nose and decrease in smell evaluated as noncompensably disabling effective from March 17, 2007. In June 2013, the Veteran submitted additional evidence in support of his claim consisting of VA clinical records that are already part of the claims folder, along with additional contentions made by the Veteran concerning his claims. In a September 2013 response for clarification from the Board, the Veteran's accredited representative, Disabled American Veterans, waived initial review of that evidence by the RO. 38 C.F.R. § 20.1304 (2012). Among the additional evidence submitted in June 2013 is a statement from the Veteran indicating his disagreement with the May 2013 rating decision that awarded service connection and an initial noncompensable rating for residuals of a broken nose effective from March 17, 2007. See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (indicating an NOD need not contain any magic words or phrases). Since then, a Statement of the Case (SOC) has not been issued in response to this notice of disagreement. The Board accepts limited jurisdiction over this issue for the sole purpose of remanding it to order issuance of a SOC, along with information about the process for perfecting an appeal. Again, the appropriate disposition in this circumstance is to remand rather than merely refer these claims. Therefore the Board directs that the RO issue an SOC regarding the increased rating and earlier effective date claims, as directed below, in accordance with 38 C.F.R. §§ 19.26, 19.29 (2012) and Manlincon v. West, 12 Vet. App. 238 (1999). Also, the Board recognizes that the issue of service connection for headaches related to sinusitis did not originally include allergic rhinitis/hay fever. However, in light of the most recent April 2013 VA medical examination that appears to relate the Veteran's headaches to allergic rhinitis, and since there are pertinent induction examination records that potentially relate pre-existing hay fever, the Board finds that the scope of his claim for headaches should be broadened to also include allergic rhinitis/hay fever. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons, 23 Vet. App. 1 (2009). The entirety of the issues on appeal is REMANDED to the RO via the AMC, in Washington, DC for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). REMAND Regrettably an additional remand is necessary here since further evidentiary development is required and also to ensure that due process is followed so that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service Connection for Headaches Related to Sinusitis or Allergic Rhinitis/ Hay Fever As mentioned above, in October 2012 the Board remanded the since recharacterized claim of service connection for sinusitis with headaches and sleep disturbances/sleep apnea, to include as secondary to residuals of a broken nose, to obtain a medical examination and opinion. In an April 2013 medical examination for headaches, the examiner reported that the Veteran's nasal septal deviation and now service-connected broken nose did not cause among other problems, allergic rhinitis/sinusitis. The examiner then stated that allergic and barometric changes caused the Veteran's sinus condition and associated headaches, and that the Veteran had seasonal allergies. It had been noted by the examiner that the Veteran's sinus headaches and sleep apnea were diagnosed after military service and there was no documentation or testing during the time of service. It is imperative to point out at this time that review of the Veteran's December 1979 enlistment medical history report shows that he affirmatively acknowledged that he had or had had "hay fever". In fact, mild hay fever was reported in the summary portion of the Veteran's enlistment medical history report. There are no other pertinent STRs. However, the relationship if any, between the Veteran's pre-enlistment hay fever, and his current clinically reported allergic rhinitis is also not certain; the Board is not able to determine any such relationship on its own. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Also, it should be pointed out that a Veteran is presumed in sound condition when entering service except for defects "noted" when examined and accepted for service. A condition pre-existing acceptance and enrollment must be demonstrated by clear and unmistakable (obvious or manifest) evidence. The Court has held that such an evidentiary standard is an onerous one and that the result must be undebatable. See, e.g., Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Vanerson v. West, 12 Vet. App. 254, 258 (1999). The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1) (2012). If a pre-existing disability is "noted" upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. In that case, however, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). These standards of proof regarding aggravation of a pre-existing disability were not communicated the VA examiner previously, but at that time also there was no knowledge of his allergic rhinitis which has now been associated with his sinusitis claim. Brokowski v, supra. In light of these pertinent findings and since the scope of his claim for headaches has been broadened, this claim again must be remanded. This time, however, to have a VA physician provide an opinion regarding this threshold preliminary issue of first whether the previous notation of hay fever and current allergic rhinitis are related, and is so whether the hay fever clearly and unmistakably preexisted the Veteran's service and, if it did, whether there also is clear and unmistakable evidence his hay fever/allergic rhinitis disability was not aggravated during or by his service beyond its natural progression. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection for Sinusitis Among the requested development in the October 2012 Board remand was an examination to determine whether, the Veteran's sinusitis complaints were attributable to a known diagnostic entity, and if so whether they are related to his military service or his now service connected residuals of a broken nose. In the requested April 2013 VA medical examination for sinusitis, it was specified by an examiner that that there was no past or current radiological evidence of sinusitis, and that sinusitis was not a diagnosed condition. However, the record Board shows that in a September 2007 VA otolaryngology report, a VA clinician indicated that the Veteran's subsequent to a recent septoplasty and turbinate procedure, he used a CPAP (machine for sleep apnea), and that there was "pre op hyposmia from sinusitis. Also, in the April 2013 VA medical examination for headaches and a sleep disorder, the examiner referenced the Veteran's allergic rhinitis/sinusitis disorder with associated headaches. VA and the Board for that matter, may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. Colvin, supra. The significance, if any, of the aforementioned VA clinical references to sinusitis is not certain, but they were not previously reported, nor were they addressed by the examiner in the April 2013 examination report. Regarding those sinusitis references, the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim... even though the disability resolves prior to the Secretary's adjudication of the claim". See McCain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, additional information is required, preferably from the most recent VA examiner in April 2013, to address the significance if any of these disparities regarding the claimed sinusitis, and its relationship if any to the Veteran's military service or as an undiagnosed illness. Service Connection for Sleep Disturbances/Sleep Apnea, to include as Secondary to Residuals of a Broken Nose Lastly, regarding the Veteran's claim for a sleep disturbance/sleep apnea to include as secondary to residuals of a broken nose, in or near August 2006, a VA medical record reveals a provisional diagnosis of hypersomnia with sleep apnea. In the April 2013 VA medical examination for sleep apnea, this finding was not reported and the clinical significance of this finding is not certain. Upon remand the designated VA examiner is requested to indicate the significance if any, of this finding of hypersomnia more so in relationship to the sleep disturbance portion of the claim, and the Veteran's military service or as an undiagnosed illness. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); and McLendon, supra. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested. ) 1. Send the Veteran a VCAA notice letter, pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which advises him of the evidence needed to establish service connection for headaches related to sinusitis or the newly associated claim of preexisting allergic rhinitis/hay fever, on an aggravation basis. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.304(b). 2. Issue a SOC on the issues of entitlement to an initial compensable rating for residuals of a broken nose and decrease in smell, and entitlement to an effective date earlier than March 17, 2007 for the grant of service connection and the initial award of a noncompensable rating for residuals of a broken nose and decrease in smell. Advise him that, upon receipt of this SOC, he still needs to file a substantive appeal (VA Form 9 or equivalent statement) in response to complete the steps necessary to perfect his appeal of to the Board. If, and only if, he perfects an appeal by the submission of a timely substantive appeal should these issues be returned to the Board for further appellate review. 38 C.F.R. §§ 20.202 , 20.302, etc. (2012). 3. Forward the claims file to the VA clinician who performed the April 2013 VA medical examination for headaches and a sleep disorder. The claims file, including a complete copy of this remand, should be made available to, and reviewed by, the examiner. The examiner is specifically requested to review the Veteran's December 1979 enlistment medical history report that shows an affirmative acknowledgement of "hay fever" and the medical summary where mild hay fever is reported. After a re-review of the claims file, the examiner is asked to respond to the following: A. Is it at least as likely as not that (50 percent or greater probability) that the hay fever noted on the Veteran's enlistment medical history is related to his current allergic rhinitis and sinus headache disorder that has been reported? B. If so, is it clear and unmistakable (obvious, manifest, or undebatable) that the Veteran had hay fever, allergic rhinitis and/or sinus headache disability that pre-existed his active military service? C. And if so again, is it also clear and unmistakable (obvious, manifest, or undebatable) that any established preexisting hay fever or current allergic rhinitis and sinus headache disability was not aggravated during or by his active military service, that is, above and beyond the condition's natural progression? D. If there instead is not the required clear and unmistakable evidence of pre-existing hay fever or allergic rhinitis and sinus headache disability, what is the alternative likelihood (very likely, as likely as not, or unlikely) that the disability began in service or is otherwise related or attributable to the Veteran's active military service ? E. Regarding a sleep disturbances/sleep apnea, to include as secondary to residuals of a broken nose, the same examiner is requested to consider and determine the significance, if any, of the August 2006 VA medical record reporting a provisional diagnosis of hypersomnia with sleep apnea. F. If and only if, the provisional diagnosis of hypersomnia with sleep apnea is considered tenable, indicate if any of the associated complaints are attributable to a known diagnostic entity. G. If regarding the sleep disturbance only, there are known diagnostic entities to which the Veteran's complaints are attributable, the examiner should offer an opinion, with respect to each disability, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's previous or current sleep disturbance disability, if any, was incurred or aggravated as a result of active service; or in the alternative, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's past or current disability, if any, was caused, or alternatively, aggravated by the now service-connected residuals of a broken nose. H. If any symptoms related to the Veteran's claimed sleep disturbance cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such signs or symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. It is imperative the examiner discuss the underlying rationale for all conclusions or opinions expressed, if necessary citing to specific evidence in the file. Care must be taken when responding to address the differing standards of proof indicated above, referring to clear and unmistakable evidence. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. Forward the claims folder to the VA clinician who performed the April 2013 VA medical examination for sinusitis, if still available, for a supplemental medical opinion. If the requested examiner is no longer available, or if this or some additionally designated examiner determines another examination would be helpful, the Veteran should be scheduled for another C&P examination. The claims file, including a complete copy of this remand, should be made available to, and reviewed by, the examiner. After a re-review of the claims file, the examiner is asked to respond to the following: A. Note all reported symptoms related to the Veteran's claimed sinusitis. Consider and indicate the significance, if any of the September 2007 VA otolaryngology report stating there was "pre op hyposmia from sinusitis, and also the April 2013 VA medical examination for headaches and a sleep disorder, where the examiner references the Veteran's allergic rhinitis/sinusitis disorder with associated headaches. B. The examiner should then specifically state whether any of the Veteran's past sinusitis or sinusitis complaints are attributable to a known diagnostic entity. If there are known diagnostic entities to which the Veteran's complaints are attributable, the examiner should offer an opinion, with respect to each disability, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's previous or current sinusitis disability, if any, was incurred or aggravated as a result of active service; or in the alternative, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's past or current disability, if any, was caused, or alternatively, aggravated by the now service-connected residuals of a broken nose. C. If any symptoms related to the Veteran's claimed sinusitis condition cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such signs or symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 5. When the development requested has been completed, the case should be reviewed by the RO on the entire evidence of record. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).