Citation Nr: 18141636 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-16 592 DATE: October 11, 2018 ORDER Entitlement to service connection for sinusitis is denied. REMANDED Entitlement to service connection for hyposmia is remanded. Entitlement to service connection for hypogeusia is remanded. Entitlement to service connection for bronchitis is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 20 percent for a back disorder is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence shows sinusitis was not present in service or until many years thereafter and they were not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from September 1988 to September 1991. In September 2016 the Veteran testified at a personal hearing before the undersigned and a transcript of that hearing has been associated with the record. The Board finds that it has jurisdiction over both the claim for a higher evaluation for radiculopathy because it is part of the claim for a higher evaluation for the back disability (see 38 C.F.R. § 4.71a) and for a TDIU because the Veteran testified that his service-connected back disability prevents him from working (see Rice v. Shinseki, 22 Vet. App. 447 (2009)). Entitlement to service connection for sinusitis The Veteran claims his current sinusitis is due to his military service because his current symptomatology from his sinusitis is the same as he had while on active duty. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board also finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disabilities, such as difficulty breathing threw his nose and, as per his testimony, chest pain and sore throats. See Davidson, supra. Moreover, service treatment records show the Veteran’s complaints and treatment for a-typical chest pain, a sore throat, suspected and diagnosed strep throat, the flue, pharyngitis, and an upper respiratory infection. However, service treatment records including the August 1991 separation examination, are negative for a diagnosis of sinusitis. In fact, when examined for separation in August 1991 the Veteran specifically denied having problems with sinusitis, hay fever, asthma, shortness of breath, and a chronic cough and on examination it was opined that his head, nose, and sinuses were normal. These medical findings are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); also see 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Hensley, supra. Similarly, the record does not show that the Veteran had a continued problem with sinusitis in and since service. In fact, as reported above, the August 1991 separation examination is negative for such a diagnosis. Likewise, the post-service is negative for sinusitis until years after service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). Furthermore, the record is negative for a competent and credible opinion that shows that the Veteran’s sinusitis is due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the January 2013 VA examiner opined that his sinusitis was not due to the Veteran’s military service. The Board finds that this opinion is the most probative evidence of record because it is supported by a review of the record on appeal and citation to evidence found in the record. See Owens, supra. The medical opinion is also not contradicted by any other medical evidence of record. See Colvin, supra. In addition, the Board finds that the Veteran is not competent to provide a nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question. See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for sinusitis. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Entitlement to service connection for hyposmia, hypogeusia, and bronchitis are remanded. As to the claims of service connection for hyposmia, hypogeusia, and bronchitis, the record shows the Veteran was afforded a VA examination in January 2013. However, the Board finds that the opinions provided by that examiner are inadequate because they were based on an inaccurate factual history-the appellant being on active duty at the time he first experienced problems with hyposmia, hypogeusia, and bronchitis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Therefore, the Board finds that a remand to provide the Veteran with a new VA examination to obtain adequate etiology opinions is required. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Entitlement to service connection for an acquired psychiatric disorder is remanded. At his September 2016 personal hearing, the Veteran testified that his acquired psychiatric disorders are due to his service-connected back disability. However, the January 2013 VA examiner did not provide an opinion as to whether the depressive disorder he diagnosed was caused or aggravated by the back disability. Therefore, the Board finds that a remand to provide the Veteran with a new VA examination to obtain this needed etiology opinion is required. See 38 U.S.C. § 5103A(d); Barr, supra; El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). If while the appeal is in remand status the Veteran is diagnosed with PTSD, the Board finds that the agency of original jurisdiction should also attempt to obtain a more detailed stressor statement from him and attempt to verify his stressors. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.304(f). Entitlement to a higher rating for a back disorder is remanded. As to the claim for a higher rating for a back disorder, the Board finds that this issue needs to be remanded to provide the Veteran with a new VA examination because the examinations found in the record do not included range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran’s range of motion during flare-ups. See 38 U.S.C. § 5103A(d); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Entitlement to a higher rating for radiculopathy of the left lower extremity and a TDIU are remanded. As to the claim for a higher rating for radiculopathy of the left lower extremity, the regulations governing rating the back disability specifically include radiculopathy and therefore adjudication of the back rating claim is inextricably intertwined with the radiculopathy rating claim. See 38 C.F.R. § 4.71a. Likewise, the Board finds that adjudication of the TDIU claim is inextricably intertwined with the above claims. See 38 C.F.R. § 4.16. Therefore, the Board finds that these claims must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). As to the TDIU claim, the Board finds that while the appeal is in remand status the Veteran should be provide with notice of the laws and regulations governing TDIU claims and asked to provide VA with a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. See 38 U.S.C. §§ 5103, 5103A; Dingess v. Nicholson, 19 Vet. App. 473 (2006). While the appeal is in remand status any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records; including all post-September 1991 treatment records from the Hines and Chicago. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any other outstanding private treatment records including from Pickneyville Correctional. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. Provide the Veteran with notice of the laws and regulations governing TDIU claim and request a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 4. If while the appeal is in remand status the Veteran is diagnosed with PTSD, attempt to obtain a more detailed stressor statement and attempt to verify his stressors. 5. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of the hyposmia, hypogeusia, and bronchitis. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: Provide an opinion as to whether any hyposmia, hypogeusia, and/or bronchitis is at least as likely as not (50 percent or greater probability) causally related to active service. In providing an answer to the above question, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In providing an answer to the above question, the examiner should consider and discuss the service treatment records that show the Veteran’s complaints and treatment for a-typical chest pain, a sore throat, suspected, strep throat, the flue, pharyngitis, and an upper respiratory infection. In providing an answer to the above question, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. 6. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the diagnosis and etiology of all acquired psychiatric disorders including PTSD. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide diagnoses of all acquired psychiatric disorders. b. Provide an opinion as to whether any current acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) causally related to active service. c. Provide an opinion as to whether any psychosis manifested in the first post-service year. d. Provide an opinion as to whether any acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) caused by the service-connected back disability. e. Provide an opinion as to whether any acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) permanently aggravated beyond the normal course of the condition by the service-connected back disability. In providing answers to the above questions, the examiner should also consider the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions, the examiner is advised that the term “aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must include in the medical report the rationale for any opinion expressed. 7. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his back disability and left lower extremity radiculopathy. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. All studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all back and left leg musculoskeletal and neurological pathology found to be present during the pendency of the appeal. Range of Motion Testing: (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (e) Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional lost motion caused by functional loss during a flare-up and after repeated use over time in the back. (f) If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Other Testing: (g) The examiner should also state the nature, extent, and severity of any left as well as right lower extremity radiculopathy. (h) Likewise, the examiner should state the nature, extent, and severity of any loss of sphincter and bladder control caused by his service-connected disability. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel