Citation Nr: 1800019 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 12-30 779A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for allergic rhinitis (also claimed as sinusitis). 2. Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to allergic rhinitis/sinusitis, REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1995 to June 1998. This appeal to the Board of Veterans' Appeals (Board) arose from May 2010 and May 2012 rating decisions. In the May 2010 decision, the RO denied service connection for OSA and reopened a claim for service connection for allergic rhinitis/sinusitis, but denied the claim on the merits. In the May 2012 rating decision, the RO, inter alia, assigned a 10 percent rating for scarring associated with the post-traumatic swan neck deformity of the right, middle, ring and little fingers, effective February 28, 2011. The Veteran filed a notice of disagreement (NOD) with respect to the denials of service connection for OSA and allergic rhinitis/sinusitis in February 2011, and filed an NOD with respect to the effective date assigned for the 10 percent rating for scarring associated with the service-connected fingers disability of the right hand in July 2012. A statement of the case (SOC) addressing the claims for service connection for OSA and allergic rhinitis/sinusitis was issued in September 2012, and another SOC was issued that same month addressing the claim for an earlier effective date for the grant of service connection for scarring associated with the service-connected fingers of the right hand. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) with respect to all three claims in November 2012. In November 2014, the Veteran and his wife presented testimony during a Board video-conference hearing before the undersigned Veterans Law Judge. Unfortunately, a transcript of this hearing could not be completed, as the recording from this hearing was not audible. In December 2014, the Veteran was informed by letter of these facts, and asked if he desired another hearing. In February 2015, the Veteran submitted a statement indicating that he did not desire another hearing. In March 2015, the Board denied an earlier effective date for the award of service connection for scarring associated with the service-connected disability affecting fingers of the right hand, reopened the claim for service connection for allergic rhinitis/sinusitis, and remanded the claims for service connection for allergic rhinitis/sinusitis and OSA secondary to allergic rhinitis/sinusitis for further action,. After completing the requested development, the Appeals Management Center (AMC) in Washington, D.C., continued to deny the claims (as reflected in a September 2015 supplemental SOC (SSOC)) and returned the matters on appeal to the Board for further consideration. In May 2017, the Veteran was informed that his July 2012 VA Form 21-22 Appointment of Veterans Service Organization as Claimant's Representative was invalid because the representative did not date the signature line. The Veteran and his representative were provided a new VA Form 21-22, which was returned with the appropriate dates and signatures in November 2017. While the Veteran previously had a paper claims file, this appeal is now fully being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems All records have been reviewed.. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. It is established by clear and unmistakable evidence that the Veteran's allergic rhinitis/sinusitis pre-existed his active duty service. . 3. It is established by clear and unmistakable evidence that the Veteran's pre-existing allergic rhinitis/sinusitis was not aggravated beyond the natural progression of the disorder during or as a result of service. 4. As service connection for allergic rhinitis has not been established, there is no legal basis for an award of service connection for OSA on a secondary basis. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis/sinusitis are not met. 38 U.S.C. §§ 1110 , 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for OSA , claimed as secondary to allergic rhinitis/sinusitis, are not met. 38 U.S.C. §§ 1110 , 1131 (2012); 38 C.F.R.§§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before an unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a September 2009 pre-rating letter, the agency of original jurisdiction (AOJ) provided notice to the Veteran explaining what information and evidence was needed to substantiate his claims for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter further provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the claims herein decided, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to these matters. Pertinent medical evidence associated with the claims file consists of service treatment records (STRs), VA treatment records, private treatment records, and VA examination reports. Also of record and considered in connection with the appeal is the transcript of the November 2014 Board hearing, along with various written statements by the Veteran, and his representative, on his behalf. The Board finds that no further AOJ action on either claim, prior to appellate consideration, is required. As noted, the Veteran had an opportunity to orally advance his contentions during a Board hearing. During the hearing, the undersigned identified the claims on appeal. Also, information was elicited from the Veteran regarding the nature of his claimed disabilities and why it was believed that he has current disabilities related to service. Although the undersigned did not explicitly suggest the submission of any specific additional evidence, on these facts, such omission was harmless. Following the hearing, additional development was undertaken and, as a result, additional evidence was subsequently added to the claims file. Thus, the hearing was legally sufficient. See 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). As indicated above, most recently, in March 2015, the Board remanded the claims on appeal for additional development, and the record reflects compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that substantial, rather than strict, compliance is sufficient). The Board instructed the AOJ to send the Veteran a letter requesting sufficient information to obtain any additional evidence, associate additional VA treatment records, and obtain an addendum opinion from the May 2010 VA examiner discussing the nature and etiology of the Veteran's allergic rhinitis/sinusitis and OSA. The AOJ complied with the remand instructions in April and September 2015, and readjudicated the claims in a September 2015 SSOC. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with ether claim. As such, the Veteran is no prejudiced by the Board proceeding to a decision on each remaining claims on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has manifested the claimed disability at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be established on secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See 38 C.F.R. § 3.310 (2017). Allen v. Brown, 7 Vet. App. 439, 448 (1995). A. Allergic Rhinitis/Sinusitis STRs do not include an enlistment report of medical examination. However, in February 1995, the Veteran reported sinus congestion for the past two years, and complained of a runny and stuffy nose; he was then diagnosed of seasonal rhinitis. In March 1995, the Veteran complained of sinus congestion for two weeks and recurrent sinus problems. The Veteran stated that he had had "problems all my life with a constant runny nose." The examiner assessed allergic rhinitis. In March 1996, the Veteran complained of sinus congestion due to allergy, runny nose, headache, and yellow productive cough. In July 1996, the Veteran reported a history of several years of seasonal allergic rhinitis, usually worse in the spring and fall but near constant rhinorrhea since arriving in Okinawa, Japan. The examiner diagnosed allergic rhinitis. In October 1996, the Veteran stated that he had had sinus problems for the last four to five months, with sinuses worse in the summer time when he went out to the field. He reported fever, chills, and headaches. The examiner diagnosed upper respiratory infection, to rule out sinusitis. In January 1997, the Veteran reported sinus congestion and pain, with ongoing sinus problems for about four years. In February 1997, the Veteran complained of sinus drainage and runny nose, stating that it had been a chronic problem for about three years. The examiner assessed sinusitis/tonsillar edema. X-rays revealed normal sinuses. In March 1997, the Veteran reported sinus congestion, headache, dizziness, and sneezing for two years; the examiner diagnosed chronic sinusitis. In May 1998, the Veteran complained of sinus congestion, head pressure, constant runny nose, drainage down the back of his throat, and trouble sleeping due to sneezing and productive cough. The examiner diagnosed allergic rhinitis. January 2001 private treatment records reflect a diagnosis of chronic rhinosinusitis and turbinate hypertrophy; and a bilateral nasal endoscopy with maxillary antrostomy, right partial ethmoidectomy, left total ethmoidectomy, bilateral inferior turbinate cauterization surgery. In January 2010, the Veteran underwent a functional endoscopic sinus surgery (FESS) and uvulopalatopharyngoplasty. The physician remarked that the Veteran had a history of sinusitis and OSA, and had sinus surgery in 2002, but that symptoms were significantly worse now. An April 2010 VA examination report reflects a review of the Veteran's claims file, noting that the Veteran had seasonal nasal congestion prior to the Veteran's military service, and that he reported progressively worse seasonal allergies particularly in the spring and later within the first six months to a year in the Marine Corps. His symptoms began to worsen, and he was treated for allergic rhinitis and acute sinusitis with antibiotics during service. The Veteran had bilateral nasal endoscopy with maxillary antrostomy, right partial ethmoidectomy, left total ethmoidectomy, bilateral inferior turbinate cauterization in 2002, which improved his symptoms for a time; and had a repeat nasal surgery in January 2010 with bilateral FESS and tonsillectomy uvulectomy with the latter procedure for OSA. The examiner diagnosed chronic sinusitis status post functional endoscopic sinus surgery and allergic rhinosinusitis. June 2010 VA treatment records reflect the Veteran's report that, prior to joining the service, he had some intermittent drainage from the nose but that it was aggravated during service, mainly from climate and altitude changes when he was in Japan and California. The Veteran stated that he had his first sinus surgery about one year after his separation from service. An August 2015 VA addendum opinion documents review of the claims file and lists the Veteran's allergic rhinitis/sinusitis medical history. The examiner opined that, based on the information contained in claims file and the Veteran's reports, the evidence clearly and unmistakably supported onset of allergic rhinitis/sinusitis prior to military service. As such, the examiner found that the condition at least as likely as not had its onset prior to military service. Further, the examiner opined that the claimed pre-existing condition was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner stated that individuals with allergic rhinitis were pre-disposed to sinusitis, despite environmental factors. After review of the file, the examiner could not identify environmental factors during military service that would likely aggravate allergic rhinitis and/or sinusitis beyond the normal progression of the disease. The examiner stated that, according to evidence based literature, the symptoms noted and claimed by the Veteran were typical of chronic allergic rhinitis. As such, it was less likely than not that allergic rhinitis and/or sinusitis was unmistakably aggravated beyond the normal progression as a result of service, giving consideration to exposure to any environmental hazards such as dust. Considering the pertinent evidence in light of the applicable legal authority, the Board finds that service connection for allergic rhinitis is not warranted. In addition to the basic legal authority governing service connection cited above, pertinent to this claim, it is noted that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). To rebut the presumption of soundness in 38 U.S.C. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000); Adams v. West, 13 Vet. App. 453 (2000). The term "noted" denotes only such disorders that are recorded in examination reports. The existence of disorders prior to the active military service reported by the veteran as medical history do not constitute a notation of such disorders, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disorder. 38 C.F.R. § 3.304(b)(1). Determinations of whether a disorder pre-existed the active military service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. Id. An injury or disease that has been determined to be pre-existing will be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). Here, the Board finds competent medical evidence of record clearly and undebatably establishes that the Veteran's allergic rhinitis/sinusitis pre-existed service, and that the disorder was not aggravated beyond natural progression during or as a result of service. As noted, although the claims file does not include an enlistment examination report,, based on review of the claims file and the Veteran's statements, the August 2015 VA examiner found that the Veteran's allergic rhinitis/sinusitis clearly and unmistakably pre-existed military service. Specifically, the examiner noted that the Veteran enlisted in January 1995, and in February 1995, he reported sinus congestion for the past two years, and in March 1995 he stated that he had had problems with runny nose "all his life." Significantly, there is no contrary medical evidence or opinion on this point. The August 2015 VA examiner also opined that the Veteran's allergic rhinitis/sinusitis was not aggravated beyond the natural progression of the condition. The examiner provided medical definitions of chronic rhinosinusitis (commonly referred to as rhinitis and sinusitis) and allergic rhinitis, as well as their causes and symptoms. The examiner also reviewed the claims file and noted the Veteran's extensive in-service complaints of allergic rhinitis/sinusitis, and his post-service surgeries and complaints of the condition. However, the examiner opined that there were no identifiable in-service environmental hazard, to include dust, that would likely aggravate allergic rhinitis and/or sinusitis beyond the normal progression. Specifically, the examiner noted that, in light of the fact that allergic rhinitis pre-existed military service, this automatically pre-disposed the Veteran to sinusitis, regardless of environmental factors. The examiner explained that, according to evidence-based literature, the symptoms noted and claimed by the Veteran were typical of chronic allergic rhinitis. ." Significantly, there is no contrary medical evidence or opinion on this point. As the unopposed conclusions of opinions of the August 2015 VA opinion provider were based his conclusions on examination of the Veteran, and consideration of his history, assertions, and pertinent medical literature, and such conclusions supported by stated rationale, rhe Board accepts these conclusions as probative evidence on the questions of pre-existence and in-service aggravation upon which this claim turns. See, e.g, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, to whatever extent the Veteran and/or his representative attempt to assert that the Veteran's allergic rhinitis/sinusitis was incurred in or aggravated by his service, such assertions do not provide persuasive support for the claim. s Matters of diagnosis and etiology of medical disabilities typically are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some simple medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the specific matter of the etiology of the disability under consideration is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (holding that lay persons are not competent to diagnose cancer). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on any medical matter upon which this claim turs. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for allergic rhinitis/sinusitis must be denied As B. OSA The Veteran has a current diagnosis of OSA and uses continuous positive airway pressure (CPAP) nightly. At the outset, the Board notes, that there is no evidence or allegation that OSA was present in service, or is otherwise medically related to an in-service injury, disease or event. STRs are silent for complaint, finding, or diagnosis of OSA during service or for years thereafter, and there is nothing to even suggest a relationship between OSA and service. Rather, in this case, the Veteran has consistently asserted that his OSA is secondary to his allergic rhinitis/sinusitis-specifically, y that it is due to his January 2001 surgery for the condition,. An August 2015 VA examination report documents the examiner 'as notation as to a diagnosis of OSA since 2001. The VA examiner opined that the Veteran's allergic rhinitis/sinusitis less likely than not resulted in or aggravated the Veteran's OSA. The examiner explained that OSA was a sleep disorder characterized by intermittent complete or partial airway collapse, resulting in frequent episodes of apnea and hypopnea. The examiner further indicated that a number of factors contributed to OSA, including structural/anatomic factors; enlargement of soft tissues enveloping the pharynx, including hypertrophied tonsils, adenoids, and tongue; and impairment of upper airway mechanoreceptor sensitivity and reflexes. However, the examiner stated that, while inflammatory disorders such as allergic rhinitis, rhinosinusitis, and nasal polyposis of the upper respiratory tract are associated with sleep problems, daytime somnolence, and fatigue, studies suggested that allergic rhinitis was not a major risk factor for OSA. She reported that individuals with frequent nighttime symptoms of rhinitis had been shown to be more likely to have chronic excessive daytime sleepiness or chronic nonrestorative sleep than those who rarely or never have such symptoms. As such, based on the evidence in the medical literature and the Veteran's claims file, the examiner opined that it was less likely than not that the Veteran's OSA was caused by, due to, or aggravated by his allergic rhinitis/sinusitis. With respect to this claim, the Board need not assess the probative value of the medical etiology opinion cited above, or any assertions advanced by the Veteran and/or his representative as to the etiology of current sleep apnea. Although the Veteran has a current diagnosis of OSA, as noted above, the Board has herein denied service connection for allergic rhinitis/sinusitis. As service connection for allergic rhinitis has not been established, fundamentally, there is no legal basis for an award of service connection for OSA on a secondary basis. As such, at present, the Veteran's claim for secondary service connection for OSA is, essentially, without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for allergic rhinitis (also claimed as sinusitis) is denied. Service connection for OSA, claimed as secondary to allergic rhinitis/sinusitis, denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs