Citation Nr: 1018577 Decision Date: 05/19/10 Archive Date: 06/04/10 DOCKET NO. 05-01 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bronchitis, to include as secondary to sinusitis. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to sinusitis. 3. Entitlement to service connection for asthma, to include as secondary to sinusitis. 4. Entitlement to service connection for sleep apnea, to include as secondary to sinusitis. 5. Entitlement to service connection for a heart condition, to include as secondary to sinusitis. 6. Entitlement to service connection for hypertension, to include as secondary to sinusitis. 7. Entitlement to an increased rating for chronic sinusitis with nasal septum defect, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from March 1965 to October 1968. This matter came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2007 the Veteran testified before the undersigned Veterans Law Judge. A transcript of his hearing has been associated with the record. The Board remanded the appeal for additional development in November 2007. It has now been returned for appellate consideration. The issues of entitlement to service connection for sleep apnea and an increased rating for chronic sinusitis with nasal septum defect are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Bronchitis is related to service. 2. COPD is related to service. 3. Asthma was not manifest in service and is unrelated to service; asthma is unrelated to the service-connected sinusitis. 4. A heart condition was not manifest in service or within one year of discharge from service, and is unrelated to service; a heart condition is unrelated to the service- connected sinusitis. 5. Hypertension was not manifest in service or within one year of discharge from service, and is unrelated to service; hypertension is unrelated to the service-connected sinusitis. CONCLUSIONS OF LAW 1. Chronic bronchitis was incurred in service. 38 U.S.C.A. §§ 1110, 1131, (West 2002); 38 C.F.R. § 3.303 (2009). 2. COPD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, (West 2002); 38 C.F.R. § 3.303 (2009). 3. Asthma was not incurred in or aggravated by service; asthma is not proximately due to or the result of service- connected disease or injury. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.310, 3.303 (2009). 4. A heart condition was not incurred in or aggravated by service, and may not be presumed to have been incurred therein; a heart condition is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). 5. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred therein; hypertension is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in July 2002 discussed the evidence necessary to support the Veteran's claims. The Veteran was invited to submit or identify evidence. He was told that VA would make reasonable efforts to assist him in obtaining relevant evidence. Letters in September 2003 and January 2005 provided similar information. They also listed the evidence of record and told the Veteran how VA would assist him. In December 2007 the Veteran was provided with the status of his claim. He was again invited to submit or identify relevant evidence. He was advised of the manner in which VA determines disability ratings and effective dates. Except as discussed below, the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. With respect to VA's duty to assist, a VA examinations have been conducted, and the Board finds that the examinations were adequate in that they were performed by neutral, skilled providers who accurately recited the Veteran's history and discussed the rationale underlying their opinions. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for cardiovascular renal disease, to include hypertension, may be granted if manifest to a compensable degree within one year of active service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. § 3.307, 3.309 (2009). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2009). This includes disability made chronically worse by service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre- aggravation baseline level of disability for the non-service- connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation. For this reason, and because the Veteran's claims were filed before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Asthma, Bronchitis, and COPD Service treatment records disclose that the Veteran was treated for various upper respiratory infections during the course of his service. He was hospitalized in July 1965 for left maxillary sinusitis and viral pneumonia. Bronchitis was diagnosed in September 1965. It was again assessed in July 1966 and August 1967. Service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to asthma. On VA examination in February 1969, there was no finding of asthma. Private treatment records reflect that an upper respiratory infection was diagnosed in April 1995. Bronchitis was assessed in May 1996 and April 1997. Upper respiratory infection was again noted in August 1998. A June 2000 VA treatment record reflects an impression of stable asthma. VA treatment records note an upper respiratory infection with bronchitis in January 2001. On VA examination in December 2002, the Veteran complained of bronchial congestion and coughing. He related that he took antibiotics three to four times per year, either for bronchial congestion or sinusitis. The examiner concluded that the Veteran's chronic sinusitis led to exacerbation of bronchial congestion and pulmonary problems. A January 2004 letter from L.W., M.D., P.A. indicates the Veteran's report of breathing trouble since an episode of pneumonia in service. Dr. S. noted that the Veteran was essentially a non-smoker, having only smoked a rare cigar and stopping that practice completely in the 1960s. He indicated that a chest X-ray revealed some fibrotic stranding consistent with adelectatic streaks or scarring. The impression was asthma, chronic bronchitis, and COPD. Records from D.B.G., M.D. include an April 2004 report that indicates the Veteran's report of a 39 year history of breathing problems. Dr. G. noted the Veteran's reported history of pneumonia, recurrent sinusitis, and bronchitis. Pulmonary function studies revealed abnormality consistent with a moderate restrictive lung disease. There was no obstructive component noted. The overall impression was asthma. A September 2004 statement by J.A., M.D. indicates his belief that the Veteran's recurrent sinus infections were implicated in the pathogenesis of the recurrent pulmonary infections and difficult to control asthma symptoms. He noted that the medical literature supported the conclusion that recurrent sinus infections led to difficult to control asthma and that it was possible that it might also lead to recurrent pneumonias. An October 2004 discharge summary from Homestead Hospital indicates that the Veteran was treated for pneumonia, which improved over the course of two days in the hospital. The pertinent discharge diagnoses were left lower lobe pneumonia, chronic bronchitis, and allergic rhinitis. A January 2005 VA treatment record includes a statement by the provider that the Veteran's multiple sinus infections were the pathogenesis of recurrent pulmonary infections. The Veteran was hospitalized in February 2005 for a COPD exacerbation and multilobar pneumonia. A January 2006 disability determination from the Social Security Administration indicates that the Veteran was in receipt of disability benefits for a primary diagnosis of COPD and secondary diagnosis of asthma. At his June 2007 hearing, the Veteran testified that he received a diagnosis of COPD from a provider at VA in the late 1990s. A July 2007 statement by a provider at National Jewish Medical and Research Center indicates that the Veteran was first diagnosed with asthma in 1997 when he presented with typical wheezing and shortness of breath. He noted that the Veteran had been found to have nasal polyps but that no surgery had been undertaken. The Veteran reported a history of hypertension since 1997. He also noted that a head CT scan from June 2007 revealed complete ossification of the right maxillary antrum and minimal mucosal thickening of the left maxilla. The assessment included asthma, and the provider indicated that he was not very suspicious of COPD as the Veteran had fairly minimal tobacco smoke exposure. He agreed that the Veteran's sinusitis was the most likely a cause of asthma exacerbations. The provider noted that the Veteran had obstructive sleep apnea. Following pulmonary function testing, the provider concluded that asthma was the most likely explanation for the Veteran's syndrome. On VA examination in September 2009, the examiner note that the Veteran had been diagnosed with chronic bronchitis, asthma, and COPD by both VA and private providers. She noted that the Veteran underwent injections by an allergist. She indicated that he was occasionally prescribed steroids for his respiratory symptoms. X-rays revealed lung fields clear of acute infiltrates. The lung bases showed reelect atelectasis. There were no signs of pleural abnormality. Pulmonary function tests revealed mild airflow limitation and moderate ventilatory defect. The diagnoses were COPD/chronic bronchitis and asthma. The examiner opined that asthma was not etiologically related to, caused by, or worsened beyond normal progression by viral pneumonia, bronchitis or sinusitis. She noted that review of the service treatment records did not show that the Veteran had symptoms of asthma during service. She noted that he had repeated bouts of bronchitis following viral pneumonia in 1965, but no description of clinical symptoms of asthma. She pointed out that VA examination in 1969 did not contain any history of asthma, and that the first reference to asthma was in 2001. She indicated that sinusitis did not cause asthma and that it did not aggravate asthma beyond its normal progression, noting that the records indicated that asthma had not worsened. Regarding COPD and chronic bronchitis, the examiner concluded that they were at least as likely as not caused by or the result of the Veteran's in-service bronchitis. She noted that he was treated for acute bronchitis in service, and that the many bouts of bronchitis most likely contributed to his current diagnosis of chronic bronchitis and COPD. Upon review of the record pertaining to this claim, the Board has determined that service connection for asthma is not warranted on a direct basis. In this regard, the Board notes that while the Veteran's service treatment records are completely negative for any diagnosis, complaint, or abnormal finding pertaining to asthma. The record indicates that asthma was diagnosed in 1997, nearly three decades following the Veteran's discharge from service. The Board acknowledges that the Veteran has asserted that he has had breathing problems since service and was treated for such in the years thereafter. However, there is a remarkable lack of credible evidence of pathology of asthma or treatment therefor in proximity to service or within years of separation. Certainly, the Veteran is competent to describe symptoms; however, in a case such as this, where the Veteran has a long history of various respiratory and pulmonary disabilities, the Board finds the Veteran's reports as to his symptoms to be of very limited probative value. Under such circumstances, the Board finds the most probative evidence consists of treatment records reflecting the absence of a diagnosis of asthma for 30 years after service discharge. Absent reliable evidence relating this disability to service, the claim of entitlement to service connection on a direct basis must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. For purposes of establishing secondary service connection for asthma, there is post-service medical evidence of sinusitis for which the Veteran is in receipt of service connection. Additionally, the September 2004 statement by Dr. A. proposes that the Veteran's recurrent sinus infections led to difficult to control asthma. However, review of the record leads the Board to conclude that service connection for asthma is also not warranted on a secondary basis. The September 2009 VA examiner concluded that asthma was neither caused nor aggravated by the Veteran's sinusitis. She provided a reasoned opinion, based on complete review of the record, interview, and examination. Specifically, she stated that while the Veteran had repeated bouts of bronchitis following viral pneumonia, there was no description of the clinical symptoms of asthma. She pointed out that the 1969 VA examination did not contain any history of asthma. She also concluded that sinusitis did not cause or aggravate asthma beyond its normal progression, noting that the asthma had not been shown to have worsened. In assigning high probative value to the VA examiner's opinion, the Board notes that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that they misstated any relevant fact. The Board thus finds the VA examiner's opinion to be of greater probative value than the Veteran's assertions. It also finds that the VA examiner's opinion is more probative of the etiology of asthma than the statement by Dr. A. While Dr. A.'s statement suggests that the Veteran's sinusitis is an aggravating factor for his asthma, he provides no opinion regarding whether this aggravation is acute or beyond the normal progression of the disease. As such, this statement carries less probative weight than the September 2009 VA examination report. The Board has considered the Veteran's statements and acknowledges that he is competent to diagnose and report on simple conditions. It finds, however, that the Veteran is not competent to state whether any alleged complaints in service or in the years thereafter were in fact diagnosable as asthma, or whether his current asthma was caused or aggravated by his service-connected sinusitis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In reaching this conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board has determined, however, that service connection for chronic bronchitis and COPD is warranted. In that regard, the Board notes that the September 2009 determined, following review of the record, interview of the Veteran, and physical examination, that bronchitis and COPD were more likely than not caused by or the result of the Veteran's in- service bronchitis. She further stated that the many bouts of bronchitis in service most likely contributed to his current diagnoses of chronic bronchitis and COPD. Accordingly, service connection is warranted for bronchitis and COPD. Heart Condition and Hypertension As an initial matter, the Board notes that in the VA's Schedule for Rating Disabilities, Diagnostic Code 7101 defines hypertension as diastolic blood pressure predominantly 90 mm. or greater and isolated systolic hypertension as systolic blood pressure as predominantly 160 mm. or greater with diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The Veteran's service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to a heart condition or hypertension. At his separation examination in July 1968, the Veteran's blood pressure was 130/70. He was deemed to be qualified for separation. An April 2000 VA treatment record notes that the Veteran's blood pressure was controlled without medications. The problem list notes that blood pressure was borderline. Subsequently in April 2000 the Veteran was started on medication for hypertension. A stress test in March 2002 suggested ischemia. The test was limited due to the Veteran's shortness of breath. At his June 2007 hearing, the Veteran testified that he was diagnosed with hypertension in 1997 or 1998. He maintained that his respiratory conditions aggravated his hypertension. He noted that he had more of a breathing issue than actual damage to the heart muscle. The Veteran underwent a VA heart examination in September 2009. He reported that he had not been diagnosed with a heart condition and denied a history of heart attack. The examiner noted that stress testing in March 2003 had revealed normal findings. The Veteran denied history of trauma, congestive heard disease, rheumatic heart disease, hypertensive heart disease, endocarditis, pericarditis and use of continuous medication. He also denied a history of syncope, fatigue, angina, and dizziness. He endorsed dyspnea on mild exertion. On examination, heart sounds were normal and rhythm was regular. There were no clicks or rubs. Heart size was normal. There was no pericardial effusion noted. Pulse/tissue Doppler pattern was suggestive of diastolic dysfunction consisting of impaired relaxation pattern. The examiner concluded that there were no objective of diagnostic findings of a heart condition. With respect to hypertension, the examiner opined that hypertension was not etiologically related to, caused by, a result of, or worsened beyond normal progression by the in-service sinusitis, viral pneumonia, or bronchitis. She stated that the medical literature did not show that sinusitis, viral pneumonia, or bronchitis were etiologically related to hypertension, caused hypertension, or worsened hypertension beyond normal progression. She noted that they were not risk factors for hypertension, and that it was diagnosed many years following release from service. She further pointed out that hypertension had not worsened since its onset. The Veteran also underwent a VA hypertension examination in September 2009. He related that hypertension had its onset in the 1990s. The examiner noted that the course of hypertension since onset was stable, and that medication was used for control. Following examination, the diagnosis was hypertension. The examiner opined that hypertension was not etiologically related to, caused by, a result of, or worsened beyond normal progression by the in-service sinusitis, viral pneumonia, or bronchitis. She stated that the medical literature did not show that sinusitis, viral pneumonia, or bronchitis were etiologically related to hypertension, caused hypertension, or worsened hypertension beyond normal progression. She noted that they were not risk factors for hypertension, and that it was diagnosed many years following release from service. She further pointed out that the Veteran's hypertension had not worsened since its onset. Upon review of the record pertaining to this claim, the Board has concluded that service connection is not warranted for a heart condition. The record is completely negative for a heart condition. The 2009 VA examiner conducted a full examination and determined that there were no objective diagnostic findings of a heart condition. Moreover, the Veteran has testified that he had more of a breathing issue than actual damage to the heart muscle. In summary, there is no evidence of a definitive diagnosis of a heart condition. Congress specifically limits entitlement for 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). As such, service connection for a heart condition is denied. The Board has also determined that service connection for hypertension is not warranted on a direct basis. In this regard, the Board notes that the Veteran's service treatment records are completely negative for any diagnosis, complaint, or abnormal finding pertaining to his heart and vascular system. Blood pressures were taken during service, and hypertension was not assessed at any time. Moreover, the Veteran has testified that he was not diagnosed with hypertension until 1997 or 1998, and that hypertension has been aggravated by breathing issues. For purposes of establishing secondary service connection, there is post-service medical evidence of sinusitis for which the Veteran is in receipt of service connection. As a consequence of this decision, service connection is now also in effect for bronchitis and COPD. However, review of the record leads the Board to conclude that service connection is also not warranted on a secondary basis. The December 2009 VA examiner concluded that hypertension was neither caused nor aggravated by the Veteran's respiratory conditions. She provided a reasoned opinion, based on complete review of the record, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that they misstated any relevant fact. The Board thus finds the VA examiners' opinions to be of greater probative value than the Veteran's unsupported assertions. Accordingly, service connection on a secondary basis must be denied. The Board has considered the Veteran's statements and acknowledges that he is competent to diagnose and report on simple conditions. It finds, however, that the Veteran is not competent to state whether any alleged complaints in service or in the years thereafter were in fact diagnosable as hypertension, or whether his current hypertension was caused or aggravated by his service-connected sinusitis. See Jandreau. In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Entitlement to service connection for bronchitis is granted. Entitlement to service connection for COPD is granted. Entitlement to service connection for asthma is denied. Entitlement to service connection for a heart condition is denied. Entitlement to service connection for hypertension is denied. REMAND Service Connection for Sleep Apnea On VA examination in September 2009, the examiner noted that obstructive sleep apnea had been diagnosed by VA in 2001. Following physical examination, she opined that sleep apnea was not etiologically related to, caused by, a result of, or worsened beyond normal progression by the in-service sinusitis, viral pneumonia, or bronchitis. However, the Board has granted service connection for chronic bronchitis and COPD. In light of the Veteran's testimony that he was told that his sleep apnea was related to his "respiratory condition," the Board has determined that an additional examination to address the etiology of sleep apnea is warranted. Increased Rating for Sinusitis On VA examination in December 2002, the Veteran reported that he had undergone sinus irrigation but no surgery. He stated that he had nearly constant postnasal drip that resulted in fullness and clogging of his ears. He noted that he took antibiotics three to four times per year, either for bronchial congestion or sinusitis. He did not complain of nasal congestion at the time of the examination. Physical examination revealed bilateral nasal spurs with mild nasal septal deviation. There was no pus, polyp, or blood evident. The nasal airways were patent. In November 2007, the Board determined that the December 2002 VA examination report did not include a discussion of the factors considered in evaluating sinusitis. In that regard, the Board observes that the Veteran's sinusitis is evaluated pursuant to Diagnostic Code 6513, which provides for ratings under the General Rating Formula for Sinusitis. Under this formula, a 10 percent rating is assigned for one to two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. According to the accompanying note for this formula, an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. See 38 C.F.R. § 4.97, Diagnostic Code 6513 (2009). On VA examination in September 2009, the Veteran stated that his sinusitis had progressively worsened. The Veteran endorsed nonincapacitating episodes, noting that they were nearly constant and consisted of purulent nasal discharge, headaches, sinus pain, and tenderness. He noted that his headaches were at least monthly but less than weekly. He endorsed constant breathing difficulty and hoarseness. X- rays revealed that the sinuses were of normal density. There was no evidence of fluid levels. The mucosal walls and bony structures were within normal limits. The diagnoses were chronic sinusitis and allergic rhinitis. The Board notes that while the Veteran reported near constant episodes of sinusitis, he also stated that he had headaches less than weekly. The examiner did not provide a discussion of whether these reported episodes included the symptoms that might support a higher evaluation for this disability. Moreover, while the examiner indicated that there was no history of incapacitating episodes, the record does reflect that over the years, antibiotics and steroids have been prescribed in effort to control the Veteran's symptoms. There must be a discussion of whether there have been episodes of sinusitis that require prolonged antibiotic treatment and care from a physician. Finally, the Board notes that X-rays taken in conjunction with the September 2009 examination revealed normal sinuses. However, the record also contains a July 2007 statement from a private provider in which he describes the findings of a June 2007 head CT that revealed complete ossification of the right maxillary antrum and minimal mucosal thickening of the left maxilla. It is unclear whether the September 2009 examiner reviewed those findings, and whether they should be reconciled with the later findings of normal sinuses. Accordingly, clarification of this question is necessary. In light of the above discussion, the Board has determined that additional action is necessary. Accordingly, the case is REMANDED for the following: 1. Schedule the Veteran for a VA examination to determine the etiology of his sleep apnea. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran suffers from sleep apnea. If sleep apnea is diagnosed, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the claimed sleep apnea is related (either caused or aggravated) to the Veteran's service-connected sinusitis, chronic bronchitis, or COPD. A discussion of the complete rationale for all opinions expressed should be included in the examination report. 2. Return the claims folder to the provider who examined the Veteran in September 2009. The examiner should be requested to clarify whether the Veteran has been prescribed antibiotics in recent years, and if so, the number of times he has been prescribed such medication and the duration of such prescription. The examiner should also specifically indicate the extent and severity of any nonincapacitating episodes of sinusitis and discuss the symptoms that occur during those episodes. 3. If the August 2007 examiner is unavailable to clarify the record, the Veteran should be afforded an additional VA examination to determine the nature and extent of the service-connected sinusitis. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 5. The RO should then review the claims folder to ensure that all development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 6. When the above development has been completed, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the RO should issue a Supplemental Statement of the Case and afford the Veteran and his representative an opportunity to respond. 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. 2009). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs