Citation Nr: 1334826 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-45 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected maxillary sinusitis with atrophic rhinitis. 2. Entitlement to service connection for hyposmia as secondary to service-connected maxillary sinusitis with atrophic rhinitis. REPRESENTATION Appellant represented by: James Brakewood, Accredited Agent ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from December 1972 to April 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the claims on appeal. In a November 2010 substantive appeal, via a VA Form 9, the Veteran requested a hearing before the Board at the local VA office. In a January 2012 written statement, the Veteran's representative withdrew the hearing request; therefore, the Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2013). In May 2013, the Board requested an opinion from the Veteran's Health Administration (VHA) regarding medical questions presented in this case. A July 2013 VHA opinion was received by the Board, and a copy of that opinion was provided to the Veteran and his representative. FINDINGS OF FACT 1. The Veteran has currently diagnosed obstructive sleep apnea and hyposmia. 2. The Veteran's currently diagnosed obstructive sleep apnea and hyposmia disorders are not caused or aggravated (permanently worsened in severity) by service-connected maxillary sinusitis with atrophic rhinitis. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea as secondary to service-connected maxillary sinusitis with atrophic rhinitis have not been met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). 2. The criteria for service connection for hyposmia as secondary to service-connected maxillary sinusitis with atrophic rhinitis have not been met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a June 2009 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. The VCAA notice letter also included a discussion on establishing service connection on a secondary basis. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the June 2009 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the service connection claims currently on appeal, the evidence of record includes service treatment records, VA and private treatment records, and VA examinations dated August 2009, September 2009 (addendum opinion), September 2010, and July 2013 (VHA medical opinion). For the reasons discussed in detail below, the Board finds that the VA examination reports are probative with regard to the secondary service connection claims on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal that are addressed on the merits in this decision. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.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. 38 C.F.R. § 3.303(d). The conditions of obstructive sleep apnea and hyposmia are not "chronic" diseases listed at 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b), based on "chronic" symptoms in service and "continuous" symptoms since service separation, do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection Analysis In a June 2009 claim for VA compensation benefits, the Veteran contends that obstructive sleep apnea and hyposmia are secondary to service-connected maxillary sinusitis with atrophic rhinitis disability. See also representative's January 2012 written statement. Because the Veteran and his representative have expressly stated that service connection for obstructive sleep apnea and hyposmia is based on a secondary theory of entitlement, and because the evidence of record does not otherwise indicate that the currently diagnosed obstructive sleep apnea or hyposmia are etiologically related to service, the Board need not address whether service connection is warranted for obstructive sleep apnea or hyposmia on a direct basis. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (VA must consider the possible theories of entitlement raised by the claimant or the evidence of record). Development in this case has, accordingly, been focused on the theory of secondary service connection. The Veteran is service connected for maxillary sinusitis with atrophic rhinitis. Also, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea and hyposmia. See January 2010 letter from Dr. L.G. and January 2010 examination from Dr. M.O. As such, the remaining question is whether currently diagnosed obstructive sleep apnea and hyposmia are caused or aggravated by service-connected maxillary sinusitis with atrophic rhinitis. For secondary service connection based on aggravation (permanent worsening beyond natural progress) of a non-service-connected disorder by a service-connected disability, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, and medical evidence indicating the level of increased disability after the aggravation occurred. 38 C.F.R. § 3.310. The evidence weighing in favor of the Veteran's claim for secondary service connection is a January 2010 private otolaryngology report from Dr. M.O. In this examination report, Dr. M.O. stated that he had performed a laser turbinoplsty on the Veteran seven years ago. The Veteran reported chronic nose congestion and slowly-developing decrease in smell. Dr. M.O. noted that he reviewed the Veteran's VA medical record and conducted a physical examination of the ears, nose, and throat. Dr. M.O. then diagnosed the Veteran, in pertinent part, with obstructive sleep apnea, atrophic rhinitis, and chronic sinusitis. Dr. M.O. opined that, based on well-recorded medical literature, hyposmia was directly correlated to atrophic and vasomotor rhinitis, and there was a direct correlation and link in the Veteran's case. The doctor indicated that this was undisputed in the literature and documentation of the Veteran's VA records. Further, Dr. M.O. opined that the Veteran's atrophic rhinitis was exacerbating his obstructive sleep apnea. The exacerbation was supported by VA treatment records. The Board finds the January 2010 private otolaryngology opinion from Dr. M.O to be of little probative value. Initially, Dr. M.O. did not provide a rationale as to why obstructive sleep apnea was exacerbated by the atrophic rhinitis. See Bloom, 12 Vet. App. at 187; Hernandez-Toyens, 11 Vet. App. at 382; see also Claiborne, 19 Vet. App. at 186 (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Further, although Dr. M.O. noted that VA records supported a finding that sleep apnea was "exacerbated" by the atrophic rhinitis, Dr. M.O. did not explain how VA records demonstrated that the sleep apnea was aggravated or "exacerbated" beyond its natural progression. Instead, the Board finds that VA treatment records reveal no actual worsening of obstructive sleep apnea. In this regard, VA treatment records and VA examination reports show that the Veteran had been using a CPAP machine with good results. The medical evidence does not indicate that the Veteran had experienced chronic respiratory failure with carbon dioxide or cor pulmonale or had required a tracheostomy. See Diagnostic Code 6847 (50 percent disability rating is assigned for sleep apnea requiring the use of a breathing assistance device such as a CPAP machine. A 100 percent disability rating is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy). Moreover, although Dr. M.O. stated that the medical literature revealed that hyposmia was directly correlated to atrophic rhinitis and that there was a direct correlation and link in the Veteran's case, Dr. M.O. did not reflect reliance on an accurate history regarding the Veteran's hyposmia. See Reonal, 5 Vet. App. at 461 (opinion based upon an inaccurate factual premise has no probative value). Specifically, during the August 2009 VA examination, discussed in further detail below, the Veteran reported that the decrease sense of smell (hyposmia) began six years ago (approximately 2003). The VA examiner noted that treatment records in the claims file revealed that these symptoms occurred after a pleuristic chest scar/chest surgery. Likewise, during the September 2010 VA examination report, the Veteran again reported that the decreased sense of smell developed after general anesthesia for decortications of the chest scar. Dr. M.O. did not acknowledge or discuss the specific VA records showing onset after post-service surgery or the Veteran's own statements regarding the onset date or circumstances surrounding symptoms of hyposmia. For these reasons, the Board finds the January 2010 private otolaryngology report from Dr. M.O opinion to be of little probative value. The evidence weighing against the Veteran's claim for secondary service connection includes the August 2009 VA examination report and the September 2009 VA addendum medical opinion. During the August 2009 VA examination, the Veteran reported symptoms consistent with loud snoring, and the Veteran estimated that these symptoms had their onset six years prior to a positive polysomnogram test in June 2003. The Veteran reported that he was prescribed a CPAP machine, which had helped him with his symptoms. In regard to decreased sense of smell (hyposmia), the Veteran reported that these symptoms began six years prior (approximately 2003). The VA examiner noted that treatment records in the claims file revealed that these symptoms occurred after the pleuristic chest scar/chest surgery. The August 2009 VA examiner diagnosed the Veteran with obstructive sleep apnea and chronic rhinitis with frequent symptoms of crusting and congestion. An opinion as to whether obstructive sleep apnea or hyposmia were caused or aggravated by service-connected maxillary sinusitis with atrophic rhinitis was not rendered. In a September 2009 VA addendum opinion, which the Board finds to weigh against the claims for secondary service connection, the VA examiner opined that sleep apnea was not related to the Veteran's service-connected maxillary sinusitis with atrophic rhinitis. The VA examiner reasoned that the obstructive sleep apnea symptoms had their onset only four to five years ago and were diagnosed only in the past year. The VA examiner stated that there was no basis or historical findings of sleep apnea being caused by service-connected sinusitis. In regard to hyposmia, the VA examiner opined that it was less likely than not that the Veteran's hyposmia was related to sinusitis with atrophic rhinitis. In support of this opinion, the VA examiner noted that the hyposmia had its onset after the Veteran underwent chest surgery in January 2001. Again, the VA examiner stated that there was no historical evidence to support a causal relationship between hyposmia and sinusitis with atrophic rhinitis. The Board accords significant probative value to the August 2009 VA examination report and the September 2009 VA addendum medical opinion. Together, these evaluations reviewed the Veteran's claims file, specifically discussed the accurate history of record, and noted the Veteran's reported symptoms. Further, the September 2009 addendum medical opinion provided a rationale for the opinions rendered that were based on reliable principles and sound reasoning. See Nieves-Rodriguez, 22 Vet. App. 295 (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In a following September 2010 VA medical opinion, the VA examiner was asked to review Dr. M.O.'s report and provide an opinion as to whether obstructive sleep apnea was aggravated by nasal congestion from chronic sinusitis and atrophic rhinitis. The September 2010 VA examiner opined that "it would be correct to state that if the Veteran had service-connected chronic sinusitis, that it could aggravate an obstructive sleep apnea condition, but not necessarily be the etiology." The VA examiner further noted that, in the Veteran's case, there was no evidence of chronic sinusitis. As to atrophic rhinitis, the VA examiner opined that this disorder would not necessarily aggravate obstructive sleep apnea unless there was very marked crusting and blockage of the nose, which the examiner noted was not the case in the Veteran's medical history. The Board finds the September 2010 medical opinion to be of no probative value. First, the September 2010 VA examiner did not provide an opinion as to whether hyposmia was aggravated by service-connected sinusitis and/or atrophic rhinitis. Also, by its own language, the September 2010 medical opinion only expresses a possibility of relationship rather than one of probability. Specifically, the examiner noted that chronic sinusitis "could" aggravate an obstructive sleep apnea condition. A physician's statement framed in terms such as "may" or "could" is not probative. Warren v. Brown, 6 Vet. App. 4, 6 (1993). Evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In the July 2013 VHA medical opinion, rendered pursuant to the Board's May 2013 request for a medical opinion, the VA examiner noted that the claims file was reviewed. The VA examiner opined that the diagnosed obstructive sleep apnea was not aggravated by the Veteran's maxillary sinusitis with atrophic rhinitis. The July 2013 VA examiner agreed with the September 2009 VA examiner in that these conditions were unrelated and that sleep apnea was improved on CPAP. According to the July 2013 VA examiner, sleep apnea was more related to pharyngeal collapse and only minimally due to nasal problems, such as a septal deviation, turbinate hypertrophy, and polyps. In the Veteran's case, there was no mention of complete obstruction of the nose due to crusting or of extensive polyposis to worsen or cause obstructive sleep apnea. Therefore, the July 2013 VA examiner opined that obstructive sleep apnea was not related to or aggravated by the service-connected maxillary sinusitis and atrophic rhinitis. The July 2013 VA examiner further opined that he did not believe the diagnosed hyposmia was aggravated by maxillary sinusitis with atrophic rhinitis. Upon review of the record, the VA examiner noted that it appeared as if hyposmia was related in time to the Veteran's incidents of pneumonia and decortications. More importantly, the VA examiner stated that anosmia and hyposmia were usually due to trauma or viral infections, of which there was no record in the Veteran's case. Although the VA examiner noted that hyposmia could be due to sinusitis, this was usually due to extensive polypoid disease, for which there was no evidence of extensive polyposis on any of the Veteran's examination notes or on CT scans. Therefore, the July 2013 VA examiner opined that diagnosed hyposmia was not related to or aggravated by service-connected maxillary sinusitis and atrophic rhinitis. As the VHA otolaryngology specialist reviewed the claims file, to include past VA and private examination reports, and offered opinions on the etiology of the Veteran's obstructive sleep apnea and hyposmia by a noted review of medical research and medical expertise, the Board finds that the July 2013 VHA opinion to be of great probative value in this matter. See Prejean at 448 (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records). With regard to the Veteran's contentions that obstructive sleep apnea and hyposmia are caused or aggravated by service-connected maxillary sinusitis with atrophic rhinitis, the Board finds that, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a medical opinion regarding the cause of the medically complex disorders of obstructive sleep apnea and hyposmia, to include whether they are aggravated by service-connected maxillary sinusitis with atrophic rhinitis. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Obstructive sleep apnea and hyposmia are medically complex disorders because of their multiple possible etiologies. Obstructive sleep apnea requires specialized, objective testing to even diagnose, and the Veteran is not capable of conducting such sleep study on himself. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). For these reasons, the Board finds the July 2013 VHA medical opinion to be the most competent and probative opinion as to whether currently diagnosed obstructive sleep apnea and hyposmia are caused or aggravated by service-connected maxillary sinusitis with atrophic rhinitis. Based on the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates no relationship - either causation or aggravation - between the Veteran's current obstructive sleep apnea and hyposmia and service-connected maxillary sinusitis with atrophic rhinitis. The most probative nexus opinion on file (the July 2013 VHA medical opinion) weighs against the claims. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claims for service connection for obstructive sleep apnea and hyposmia as secondary to service-connected maxillary sinusitis with atrophic rhinitis, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for obstructive sleep apnea as secondary to service-connected maxillary sinusitis with atrophic rhinitis is denied. Service connection for hyposmia as secondary to service-connected maxillary sinusitis with atrophic rhinitis is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs