Citation Nr: 1302369 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-04 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for dizziness/vertigo. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to a compensable rating for perennial rhinitis. REPRESENTATION Veteran represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active service from January 1960 to January 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011 the Board remanded the issues on appeal for further development, including acquisition of a VA examination. No further action to ensure compliance with the Board's 2011 remand directives is required (Stegall v. West, 11 Vet. App. 268 (1998); however, further evidentiary development regarding the appeal for service connection for sleep apnea is needed. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's dizziness is a symptom of his other maladies; it is not a separate disease entity. 2. The Veteran's perennial rhinitis disability has not been productive of 50 percent obstruction of the nasal passage on both sides, or of complete obstruction on one side, at any time during the appeal period. CONCLUSIONS OF LAW 1. A claimed dizziness/vertigo disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for a compensable rating for perennial rhinitis are not met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, 38 C.F.R. § 4.97 Diagnostic Code 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in August 2007 and October 2009. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained. The Veteran's service treatment records have been obtained. VA and private treatment records have also been obtained. In addition, the Veteran has been provided with numerous VA examinations and was afforded an opportunity to give testimony before the Board. He has not indicated that there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. II. Service Connection, dizziness/vertigo The Veteran seeks service connection for dizziness, which he opines may be related to his service-connected rhinitis disability, including medication taken for the disorder. In January 1960 the Veteran entered active duty service. Service treatment records include numerous complaints of dizziness on several occasions, but the Veteran's dizziness complaints were never diagnosed as constituting a disease entity in and of itself. In January 1980 the Veteran retired from active duty service. Post service medical records dating from 1982 relate perennial symptoms of dizziness, headaches and head congestion. Military hospital (emergency room) records dated in August 2003 relate a diagnosis of [illegible]apneal vertigo, secondary to Eustachian tube dysfunction, secondary to sinusitis. In a follow up consult in August 2003, the provider noted that the Veteran's vertigo sensation, secondary to the development of upper respiratory infection, had resolved. In a statement in September 2007 the Veteran complained of swelling of the nasal passages, and reported that he was taking Singulair, Claritin, Flonase, Tylenol, and Nasalcrom. In a letter dated in September 2007, Dr. Mojicar (a private physician) advised that the Veteran had had more episodes of chronic rhinitis. Dr. Mojicar added that he had to prescribe different medications. On VA examination in January 2008 the Veteran complained of episodes of feeling dizzy, which he said were triggered by his looking at the clouds moving in the sky; by his standing or sitting in a spinning vehicle; or by his playing of video games. Physical examination found no evidence of sinus disease; no nasal polyps; no hypertrophy of the turbinates; and no rhinoscleroma. The anterior turbinates were hyperemic, and the rhinorrhea were clear bilaterally. The diagnosis was perennial allergic rhinitis, with no evidence of an olfactory or gustatory disorder or chronic vertigo. The examiner added that the Veteran's intermittent episodes of vertigo were not related to the in-service complaints of dizziness, and reiterated that there was no evidence of chronic vertigo. In October 2009, the Veteran's attorney submitted an article on the relationship between Eustachian tube dysfunction and vertigo. In August 2011, the Veteran's attorney submitted an article on the relationship between vertigo and sinusitis. On VA examination in April 2012 the Veteran reported a history of dizziness during service, which he said was triggered by looking down at the clouds when in airplanes; when getting out of bed too fast; and his trifocal eyeglasses. At the time of the examination he complained of vertigo, with occasional nausea, about 1 to 4 times per month. Physical examination of the ears found no abnormalities. Physical examination of the nasal passages found no polyps, and neither passage was completely obstructed; although the right nostril was more than 50 percent blocked. The left nostril was less than 50 percent blocked. With regard to the issue of service connection for dizziness/vertigo, the examiner stated that the Veteran does not have a chronic dizziness or vertigo condition, but instead has had acute episodes of vertigo in conjunction with upper respiratory infections to include acute sinusitis. The examiner added that this would not be unexpected, and explained that any individual can have vertigo symptoms with an acute upper respiratory infection regardless of whether or not they have chronic allergic rhinitis. She also noted that the Veteran had had some dizziness on standing that was not vertiginous, but pointed out that these spells had not been objectively documented as a chronic condition, and stressed that the Veteran's dizziness was not related to his service-connected allergic rhinitis. Principles of Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). A symptom without a diagnosed or identifiable underlying malady or condition does not, in and of itself, constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Analysis The Veteran does not have a diagnosed dizziness disorder, so service connection for dizziness, including as secondary to medication taken for service-connected rhinitis, is not warranted. See Gilpin, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). This is not to say that the Veteran does not suffer from dizzy spells; however, his episodes of dizziness are not a discrete disease entity, but are instead symptoms of the Veteran's other maladies. Accordingly, in the absence of a current disorder, service connection for a distinct dizziness disorder must be denied. 38 C.F.R. § 3.303. With regard to the representative's argument of a relationship between Eustachian tube dysfunction and vertigo, and between sinusitis and vertigo, the Veteran does not have a confirmed diagnosis of vertigo, and he is not service-connected for a Eustachian tube disability or for sinusitis, so service connection under 38 C.F.R. § 3.310 is likewise not warranted. The Board notes that under certain circumstances a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159; see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (providing that lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Competency is a question of fact, which is to be addressed by the Board. Jandreau, 492 F.3d 1372, 1377. In this case the Veteran is competent to relate that he suffers from dizzy spells. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (providing that lay testimony is competent to establish the presence of observable symptomatology)). However, a distinct disease entity, such as vertigo, is not a simple medical condition capable of lay diagnosis. And it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to state whether his symptoms constitute a discrete disease entity; or, in other words, diagnose his symptoms. As no factual foundation has been established to show that the Veteran (or his representative) is qualified through knowledge, experience, training, or education to make a medical diagnosis, to the extent that the Veteran's (and his representative's) statements are offered as evidence of a diagnosis, the statements are not competent evidence and the statements necessarily are excluded as evidence in support of the claim. Competent medical evidence is therefore needed to substantiate the claim. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. As stated before, the Veteran has not been diagnosed with a distinct dizziness disorder, so the first requirement for the claim of service connection is not established. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (providing that the first requirement for any service connection claim is the existence of a current disability). Indeed, competent medical evidence instructs that the Veteran's dizzy spells are symptoms of other maladies and do not constitute a distinct disease entity. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (providing that a symptom without a diagnosed or identifiable underlying malady or condition does not, in and of itself, constitute a disability for which service connection may be granted); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Accordingly, in the absence of a current disorder, there is no valid claim of service connection (Brammer v. Derwinski, 3 Vet. App. 223 (1992)); the Board does not reach the question of continuity of symptomatology after service (38 C.F.R. § 3.303(b)) or the provisions of 38 C.F.R. § 3.303(d), pertaining to an initial diagnosis after service; and the benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b). III. Increased rating, rhinitis In a rating decision in May 1991, the RO granted service connection for perennial rhinitis and assigned a noncompensable evaluation. That decision was not appealed. In July 2007, the Veteran filed his current claim for an increased rating. In a statement in September 2007 the Veteran complained of swelling of the nasal passages, and reported that he was taking Singulair, Claritin, Flonase, Tylenol, and Nasalcrom. In a letter dated in September 2007, Dr. Mojicar (a private physician) advised that the Veteran had had more episodes of chronic rhinitis. Dr. Mojicar added that he had had to prescribe different medications. On VA examination in January 2008 the Veteran complained of nasal congestion and excess nasal mucous. Physical examination found no evidence of sinus disease; nasal polyps; hypertrophy of the turbinates; or rhinoscleroma. The anterior turbinates were hyperemic, and the rhinorrhea were clear bilaterally. On VA examination in April 2012 there were no polyps, and neither passage was completely obstructed; although the right nostril was more than 50 percent blocked. The left nostril was less than 50 percent blocked. The examiner added that there was no objective evidence of incapacitating episodes due to the Veteran's rhinitis. Principles of Disability Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). Of course, staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2010). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). Diagnostic Code 6522 outlines the rating criteria for allergic rhinitis. Pursuant to Diagnostic Code 6522, a 10 percent rating is assigned based on evidence of allergic rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. The next higher rating of 30 percent requires evidence of nasal polyps. See 38 C.F.R. § 4.97, Diagnostic Code 6522 (2010). Analysis Based on a full review of the evidence of record, the Board finds that the criteria for a rating higher than 10 percent are not met at any time during the appeal period. 38 C.F.R. §§ 4.3, 4.7. The record contains no evidence of nasal polyps at any time during the appeal period. Specifically, no polyps was found during the Veteran's examinations conducted for VA purposes in January 2008 and April 2012. There is also no evidence of greater than a 50 percent nasal obstruction of both nasal passages at any time during the appeal period. Accordingly, the criteria for a compensable rating for the Veteran's service-connected perennial rhinitis disability are not met; a staged rating is therefore not warranted (Hart, 21 Vet. App. 505); and the reasonable doubt standard of proof does not apply. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990) The Board notes that the Veteran also suffers from sinusitis, and that his symptoms include headaches and purulent discharge; however, the Veteran is not service-connected for sinusitis, so consideration of the Veteran's claim under the diagnostic criteria for evaluation of sinusitis is not appropriate. Extraschedular Consideration and TDIU The Board has further considered whether the increased rating claim above warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. After comparing the manifestations and reported impairment of function of the Veteran's service-connected rhinitis disability to the schedular rating criteria now assigned, the Board does not find any symptoms or functional impairment that are not already encompassed by the currently assigned schedular ratings. In this regard the Board notes that the Veteran's headaches, runny nose, and dizzy spells are contemplated by the schedular sinusitis diagnostic criteria; but the Veteran is not service-connected for sinusitis. Based on the symptoms attributed to the Veteran's service-connected rhinitis disability, the Board finds that the schedular criteria are not inadequate, and referral for consideration of extraschedular rating is not necessary. Thun, supra. Finally, the Board has considered whether a total disability rating based on individual unemployability (TDIU) was reasonably raised by the record in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran does not allege, and the evidence does not show, that his rhinitis disability is of sufficient severity to cause unemployability. Although the Veteran is not employed, this is not due to his rhinitis. Accordingly, the Board finds that a claim for TDIU is not raised by the record in the context of this claim. ORDER Service connection for dizziness/vertigo is denied. Entitlement to a compensable rating for perennial rhinitis is denied. REMAND In addition to the foregoing, the Veteran seeks for sleep apnea, which has been confirmed by sleep study. In April 2012 a VA examiner averred that the Veteran's sleep apnea was not related to his service-connected rhinitis; however, an opinion as to whether the disorder began during service was not provided. The evidence is thus inadequate for a decision in this matter. 38 C.F.R. § 3.326. Remand for an opinion on said is therefore warranted. Accordingly, the case is REMANDED for the following action: 1. Send the claims file for review by, and an opinion from, a VA examiner as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's sleep apnea, diagnosed some 25 years post-service, was incurred during active duty service. In formulating the opinion, the examiner should consider that the record contains probative lay evidence which informs that the Veteran snored during his 20 year active duty career. The examiner is advised that the term "at likely as not does not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus as against. A rationale for the opinion is to be provided. 2. Following completion of the above, readjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case and afford them the requisite opportunity to respond. Then, return the case to the Board for further appellate action, if indicated. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs