Citation Nr: 1752350 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-08 124 DATE THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a bilateral eye disability, claimed as a left eye lesion. 3. Entitlement to service connection for pulmonary tuberculosis class I. 4. Entitlement to service connection for chronic sinusitis. 5. Entitlement to service connection for major depressive disorder, claimed as depression. 6. Entitlement to service connection for generalized anxiety disorder, claimed as anxiety. 7. Entitlement to service connection for a sleep disorder, claimed sleeping problems, to include as secondary to service connected allergic rhinitis. 8. Entitlement to an initial rating in excess of 10 percent for tinnitus. ORDER Service connection for pulmonary tuberculosis class I is denied. Service connection for chronic sinusitis is denied. Service connection for obstructive sleep apnea, as secondary to service-connected allergic rhinitis, is granted. An initial rating in excess of 10 percent for tinnitus is denied. FINDINGS OF FACT 1. The probative evidence of record does not show that the Veteran has a current diagnosis of pulmonary tuberculosis class I. 2. The probative evidence of record does not show that the Veteran has a current diagnosis of chronic sinusitis. 3. The Veteran has a current diagnosis of obstructive sleep apnea, and the evidence is in equipoise on whether it is due to the Veteran's service-connected allergic rhinitis. 4. For the entire period of appeal, the tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for service connection for pulmonary tuberculosis class I have not been met. 38 U.S.C. §§ 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for service connection for chronic sinusitis have not been met. 38 U.S.C. §§ 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 3. The criteria for service connection for obstructive sleep apnea as secondary to service-connected allergic rhinitis have been met. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 4. For the entire period of appeal, the criterial for the assignment of a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which granted service connection for tinnitus, assigning a 10 percent rating effective October 19, 2010, and denied service connection for the remaining claimed disabilities. In September 2015, the Board remanded the case for the scheduling of a Board videoconference hearing. The Veteran subsequently testified at a videoconference hearing before the undersigned in July 2017 and a transcript of that hearing is of record. The Board therefore finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). The issues of service connection for a bilateral eye disability, bilateral hearing loss, major depressive disorder, and generalized anxiety disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). 1. Service connection claims To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including active tuberculosis, if the disability is manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). For the showing of a 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303 (b) (2016). The presumption relating to a continuity of symptomatology can be used only in cases involving those conditions recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). There are specific regulations defining what medical evidence is acceptable in establishing service connection for tuberculosis. X-ray evidence of active tuberculosis is required to establish direct service connection for this disease under 38 C.F.R. § 3.370 (a) and, where X-ray evidence from the Veteran's entrance physical examination is not available and there is no other evidence of active or inactive re-infection type tuberculosis existing prior to entrance into active service, 38 C.F.R. § 3.370 (b) provides that inactive tuberculosis will be assumed to have been incurred during service where such disease is shown by X-ray evidence as provided in § 3.370(a). See 38 C.F.R. § 3.370. Similarly, 38 C.F.R. § 3.371 requires X-ray evidence of active pulmonary tuberculosis within the three-year presumptive period provided by 38 C.F.R. § 3.307 in order to establish direct service connection for this disease. See 38 C.F.R. §§ 3.307, 3.371. Finally, 38 C.F.R. § 3.374 provides that either an in-service diagnosis or a post-service VA diagnosis of active pulmonary tuberculosis will be accepted as valid for purposes of establishing direct service connection for this disease. The Court has indicated that VA regulations provide specific requirements as to the nature and extent of proof necessary to establish service connection for pulmonary tuberculosis. See Murillo v. Brown, 9 Vet. App. 322 (1996). Service Treatment Records (STRs) STRs indicate that in a July 1999 service enlistment examination, the Veteran's nose, sinuses, and lungs and chest were found to be clinically normal. He denied having a history of nose or throat trouble, chronic or frequent colds, sinusitis, hay fever, tuberculosis, pain or pressure in chest, or chronic cough. In November 2001, results of a purified protein derivative (PPD) test were positive. The Veteran was given a tuberculosis (TB) shot and had a chest x-ray. Between February and August 2002, the Veteran was seen several times for sinus and cold symptoms. In February 2002, the Veteran was seen in the emergency department of an Army hospital with right-sided body numbness (which resolved) and left eyelid swelling. In an April 2002 pre-deployment health assessment, the Veteran reported having "stomach aches, sinus, cold symptoms, sore throat, nauseas." In May 2002, the Veteran reported having sinus trouble and cold symptoms that first occurred two weeks ago, went away, and recurred two days ago. He was found to have acute sinusitis. Approximately four days later, the Veteran reported continued congestion and having pressure in his ear. He was found to have sinusitis. In July 2002, the Veteran reported a variety of symptoms, including cold symptoms, sore throat, nasal congestion, headache, watery and itching eyes, and itching ears. He was diagnosed with an upper respiratory infection, and given Allegra. Two days later he reported a persistent daytime and nocturnal cough and minor dyspnea. He also stated that he had never been given feedback on a diagnosis after the positive PPD test. In a July 2002 Report of Medical Assessment prior to separation, the Veteran reported having problems with this sinus, "coughiness" and phlegm. He was referred for further evaluation of possible tuberculosis. In August 2002, the Veteran complained of problems with his sinus, productive cough, bad headaches, nasal allergies, and a prior history of a sinus infection. The same day, the Veteran waived a separation physical. Pulmonary Tuberculosis and Sinusitis The Veteran contends that he has chronic sinusitis due to exhaust pipe fumes he was exposed to in service. He also states that his Army unit was sent to help fight a forest fire in Idaho, where he was exposed to fumes from the fire. The Veteran indicates that his sinus symptoms have continued ever since service, and that he uses a nasal spray. With regard to the tuberculosis, the Veteran asserts that he had a positive reaction in his arm in service, but he never got treatment and was not seen by a doctor. He states that he wondered in service whether he had a diagnosis, but that he does not currently have any symptoms or diagnosis of tuberculosis. See the July 2017 Board hearing transcript. The Board finds that the competent, credible, and probative evidence establishes that Veteran does not have a current diagnosis of pulmonary tuberculosis, nor does he have a current diagnosis of sinusitis. A September 2010 note from a private physician, Dr. C.M., indicates that the Veteran was a non-smoker, non-allergies, who was seen on multiple occasions in service due to a persistent cough, stuffiness, fever, rhinitis, general malaise, and a positive PPD test. Dr. C.M. indicated that the Veteran's diagnoses included pulmonary tuberculosis class I, chronic bronchitis, chronic sinusitis, and chronic rhinitis. In January 2011, the Veteran was afforded VA examinations. In a tuberculosis examination, the Veteran reported testing positive for tuberculosis in November 2001, but he never received prophylaxis treatment. Upon physical examination, there was no evidence of congestive heart failure, pulmonary hypertension, extra heart sounds, or abnormal breath sounds. Diaphragm excursion was normal and chest expansion was slightly limited. Chest x-rays did not show any radiographic evidence of cardiopulmonary abnormalities. The examiner concluded there was no evidence, past or present, of pulmonary tuberculosis or any other pulmonary condition. In a sinus examination, the Veteran reported recurrent nasal stuffiness, a whitish nasal discharge almost daily, recurrent headaches, and occasional sneezing episodes. Upon physical examination, the Veteran had congested nasal turbinates with slight watery discharge. There were no nasal polyps, obstruction of the nostrils, septal deviation, tissue loss, scaring, deformity of the nose, sinusitis, nasal regurgitation, or speech impairment. The examiner diagnosed allergic rhinitis and noted that the Veteran did not have sinusitis. The Board notes that the Veteran has since been granted service connection for allergic rhinitis. In May 2017, the Veteran was afforded another VA sinusitis/rhinitis examination. He reported that his symptoms started in 2001 in service during physical training, and had stayed the same since that time. The examiner indicated that the Veteran had allergic rhinitis, with a diagnosis date of 2001, and the Veteran did not have sinusitis. The examiner explained that the Veteran was treated more than once in service for allergy symptoms and he continued to experience allergies, which were treated with fluticasone and Allegra. The Veteran testified in the July 2017 Board hearing that he had chronic sinusitis due to exposure to exhaust pipe fumes and forest fire fumes, which he was exposed to in service. He stated that his sinus symptoms had continued ever since service, and that he used a nasal spray. The Veteran also asserted that he did not know whether he had a previous diagnosis of pulmonary tuberculosis, or just a positive PPD test, but that he did not currently have a diagnosis of tuberculosis. After careful review, the Board finds that although the Veteran was treated for cold symptoms, sinusitis, and rhinitis during active service, and had a positive PPD test in service, the competent and credible evidence also establishes that the Veteran does not have a current diagnosis of pulmonary tuberculosis or chronic sinusitis. The Board finds the VA examiner's opinions to be competent and credible, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). ). The VA examiner's opinions were rendered after reviewing the Veteran's VA medical records, soliciting a medical history from the Veteran, and conducting a physical examination and clinical testing of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The VA examiners provided facts and rationale on which they based their opinions, pointing to specific medical treatment records as support for the opinions. Finally, the probative value of the VA examiner's opinions are further bolstered by their consistency with the medical evidence in the Veteran's medical history, which is silent for mention of diagnosis or treatment of tuberculosis, and are consistent with diagnosis of allergic rhinitis, for which the Veteran is already service-connected. The Board also finds that there is little probative value in the note by Dr. C.M with regard to establishing service connection for pulmonary tuberculosis or chronic sinusitis. The handwritten note indicates that the Veteran had nasal and sinus symptoms and a positive PPD test in service, lists some current nasal/sinus symptoms, and contains a list of diagnoses. There is no evidence that Dr. C.M. reviewed the Veteran's claims file, including the Veteran's STRs; rather, the statement appears to be based on the Veteran's verbally reported history. There is also no evidence of what, if any, medical or clinical tests or evaluations were done prior to rendering the diagnoses, nor did Dr. C.M. submit any supporting medical records or x-rays. 38 C.F.R. § 3.370, Black v. Brown, 5 Vet. App. 177, 180 (1993) (finding medical opinions inadequate when they are not supported by medical evidence); Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated). In any case, the probative value of Dr. C.M.'s opinion is outweighed by the VA examiners' opinions. The only other evidence of record indicating that the Veteran has current diagnoses of tuberculosis or chronic sinusitis are the Veteran's own statements, and the statements by his spouse. The Board does not doubt the Veteran is sincere in his belief that the claimed tuberculosis and chronic sinusitis are related to his service. As lay people, the Veteran and his spouse can report symptoms of nasal congestion and mucus, including indicating that the symptoms continued since service, but their statements cannot be used to diagnose chronic sinusitis or tuberculosis after the Veteran's service separation, nor can they be used to determine whether any current diagnoses are related to a diagnosis or other event in service. The diagnosis and etiology of chronic sinusitis and tuberculosis goes beyond a simple and immediately observable cause-and-effect relationship and requires medical knowledge to review and interpret clinical tests. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be 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). Furthermore, to the extent to which the Veteran relies on the temporal proximity between the onset of his symptoms and exposure to chemical fumes, the Courts have found that temporal proximity is generally not a reliable indicator of a causal relationship. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir. 1998); Weldon v. U.S., 744 F. Supp. 408, 411-12 (N.D.N.Y. 1990); Black v. Food Lion, Inc., 171 F.3d 308, 313 (5th Cir. 1999). As such, the Board finds the Veteran's statements and the statements by his family to be probative with regard to establishing the Veteran's current symptoms, but finds little probative value with regard to establishing service connection. In sum, the weight of the competent and credible evidence record weighs against the claims for service connection for pulmonary tuberculosis and chronic sinusitis. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for pulmonary tuberculosis and chronic sinusitis is not warranted. Sleep Disorder The Veteran contends that he has been diagnosed with obstructive sleep apnea, and his symptoms started in service. He stated that he thought his rhinitis or respiratory problems could be related to the sleep problems. See the July 2017 Board hearing transcript. The Board finds that service connection for obstructive sleep apnea as secondary to service-connected allergic rhinitis is warranted. VA treatment records indicate that in June 2017, the Veteran had a sleep evaluation. Results showed evidence for "at least mild obstructive sleep apnea." In an August 2017 VA sleep apnea examination, the Veteran reported that he started snoring in 2001-2002. He stated that he noticed during service that he was breathing through is mouth due to nasal congestion, had difficulty sleeping at night, and woke up frequently. The Veteran also indicated that he had gained weight after separation from service due to depression, anxiety, and PTSD. He took trazadone to control the sleep apnea, and had started using a continuous positive airway pressure (CPAP) machine about one week prior. The examiner indicated that results of a sleep study performed in June 2017 showed mild to moderate obstructive sleep apnea. The examiner opined that the sleep apnea was less likely than not due to or a result of the Veteran's service-connected migraine headaches, as the literature did not support the contention that migraines caused or contributed to sleep apnea. However, the Veteran's sleep apnea was at least as likely as not proximately due to or the result of the Veteran's service-connected allergic rhinitis. Review of the literature indicated that there was an implied relationship of pre-existing condition of chronic allergic rhinitis and a sleep apnea diagnosis. Medical records supported the Veteran's chronic rhinitis (or allergic sinusitis) worsening post-service and subsequent development of sleep apnea. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek clarification of the August 2017 VA examiner's rationale for why the sleep apnea is related to the Veteran's allergic rhinitis, including discussion of the fact that the examiner appears to have used "rhinitis" and "sinusitis" interchangeably. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Thus, as there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," this is a situation where the benefit of the doubt rule applies. Ashley, 6 Vet. App. at 59; 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In resolving all reasonable doubt in the Veteran's favor, service connection for obstructive sleep apnea is warranted. 2. Increased rating for tinnitus In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the U.S. Court of Appeals for Veterans Claims (the Court) held that the pre-1999 and pre-June 13, 2003 versions of diagnostic code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a Veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260. Furthermore, the Board notes that in the July 2017 Board hearing, the Veteran indicated that he understood that 10 percent was the maximum and he did not have any evidence to warrant an increase. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus or separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REMAND A review of the record reflects that further development is necessary with regard to the remaining claims to ensure there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. First, with regard to the claim for service connection for bilateral hearing loss, the Veteran underwent VA hearing loss examinations in February 2011. The examination results indicated that the Veteran did not have hearing loss to an extent recognized as a disability for VA purposes. In the July 2017 Board hearing, however, the Veteran testified that his hearing loss had worsened since the examination. As such, the Veteran should be afforded another VA audiological examination. Next, with regard to the claim for service connection for a bilateral eye disability, the Veteran contends/asserts that his left eye was injured in the Mojave Desert due to sand getting in it. He indicates that he was given drops in service and after service, which cleared his eye and "it got good." He states that the eye injury healed with treatment. See the July 2017 Board hearing transcript. In a January 2011 VA eye examination, the Veteran reported having left eye itching 10 years ago, which was relieved with Acular. The examiner diagnosed refractive error (myopia, astigmatism), left eye nasal pterygium, and bilateral mild dry eyes. The examiner noted that dry eyes was the only diagnosis found that was mentioned in the claims file in a July 2001 treatment record, but did not opine on whether the Veteran's current dry eyes diagnosis was related to the in-service diagnosis. The examiner further noted that pterygium in the left eye was not mentioned in the claims file and was not related to treatment in the left eye noted in the service records, but did not provide any further explanation for his conclusion. The Board finds that remand for clarification is necessary. Finally, with regard to the claims for service connection for major depressive disorder and generalized anxiety disorder, the Veteran asserts that he reported depression and anxiety symptoms in service and that he had recently been diagnosed with depression. See the July 2017 Board hearing transcript. VA treatment records indicate that in November 2016, results of a depression screening suggested depression ranging from mild to severe. In January 2017, a psychiatrist indicated that the Veteran's "diagnostic impression" included unspecified anxiety disorder and rule-out generalized anxiety disorder. The Board finds that the Veteran's statements and evidence of record support the need for a VA examination, and a medical opinion should be obtained on the issues of entitlement to service connection for depression and/or anxiety. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d) (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and likely etiology of any current hearing loss disability. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations deemed necessary should be performed. The examiner should provide a medical opinion on whether it is as likely as not (50 percent or greater probability) that any hearing loss is related to service. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 2. Contact the VA examiner who conducted the January 2011 VA eye examination (or if he or she is no longer available, a suitable replacement) and ask the examiner to review the record and prepare an addendum to the medical opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current lower eye disability had causal origins in active service. The examiner should specifically address the Veteran's July 2001 in-service diagnosis of dry eyes. The examiner should also specifically address the rationale for why the left eye nasal pterygium is not related to the left eye complaints noted in service, including a February 2002 complaint of left eyelid swelling and a May 2002 report of having "something in eye." If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO/AMC should schedule the Veteran for such an examination. 3. Schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist to determine the current nature and likely etiology of any diagnosed psychiatric disability, to include major depressive disorder and/or generalized anxiety disorder. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations deemed necessary should be performed. The examiner should note all psychiatric diagnoses. For each diagnosed psychiatric disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that disability was incurred in or aggravated by service. A thorough rationale should be provided for all opinions expressed, to include discussion of the July 2000 service treatment record indicating that the Veteran reported symptoms of depression and anxiety. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 4. After completing the above, and any additional development deemed necessary, readjudicate the claims. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. 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. §§ 5109B, 7112 (2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel Department of Veterans Affairs