Citation Nr: 18142021 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 15-39 165 DATE: October 15, 2018 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for non-Hodgkin's lymphoma is granted. An effective date of January 6, 2011, but no earlier, is granted for the Veteran’s service connected radiculopathy of the left lower extremity. FINDINGS OF FACT 1. The weight of the evidence shows that the Veteran’s sinusitis was incurred in service. 2. The weight of the evidence shows that the Veteran’s allergic rhinitis was incurred in service. 3. The weight of the evidence shows that the Veteran’s sleep apnea was incurred in service. 4. The Veteran currently has non-Hodgkin’s lymphoma, which is presumed to be related to exposure to herbicide agents during his active military service in Thailand. 5. The Veteran’s request for an increased rating for his service-connected lumbar spine disability was received on November 21, 2011. 6. The Veteran’s radiculopathy is part and parcel with his increased rating for his service-connected lumbar spine disability and was shown to have occurred on January 6, 2011. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have been met. 38 C.F.R. §§ 1101, 1110, 1154(a); 38 C.F.R. §§ 3.159(a), 3.303. 2. The criteria for service connection for allergic rhinitis have been met. 38 C.F.R. §§ 1101, 1110, 1154(a); 38 C.F.R. §§ 3.159(a), 3.303. 3. The criteria for service connection for sleep apnea have been met. 38 C.F.R. §§ 1101, 1110, 1154(a); 38 C.F.R. §§ 3.159(a), 3.303. 4. The criteria for service connection for non-Hodgkin's lymphoma have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for an effective date of January 6, 2011, but no earlier, for the Veteran’s service-connected radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400, 4.71a, Diagnostic Code 5237, Note 1. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to February 1980 and from August 1989 to August 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for radiculopathy of the left lower extremity, effective August 3, 2011, and denied service connection for rhinitis, sleep apnea, and Hodgkin’s lymphoma, and confirmed and continued its previous denial of service connection for chronic maxillary sinusitis. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2017. A copy of the transcript has been reviewed and associated with the claims file. Generally, where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). In this case, the last prior denial for the issue of service connection for sinusitis was issued by the RO in a December 2006 rating decision. At the time of the December 2006 rating decision, all of the Veteran’s military personnel records were not associated with the claims file. After a review of the evidence, the Board finds that relevant military personnel records have been added to the record since the last prior decision. As such, the Board will consider the claim of service connection for sinusitis without the need for new and material evidence. Service Connection Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App 439, 449 (1995). The Veteran has claimed exposure to herbicides while stationed in Thailand. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VBA Adjudication Manual, M21-1, IV.ii.2.C. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. See M21-1, M21-1, IV.ii.1.H.5.b. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 1. Entitlement to service connection for sinusitis; 2. Entitlement to service connection for allergic rhinitis; 3. Entitlement to service connection for sleep apnea, including as secondary to sinusitis and allergic rhinitis The Veteran asserts that his current sinusitis, obstructive sleep apnea, and allergic rhinitis were incurred as a result of service. The Veteran has been diagnosed with obstructive sleep apnea, allergic rhinitis, and sinusitis. See e.g., 10/12/2010, Medical Treatment Record- Non-Government Facility, pp. 17, 43, 51. Thus, present disabilities have been established by the evidence. The Veteran’s service-treatment records reveal complaints of chronic sinus problems, upper respiratory congestion, and nasal congestion from February 1973 through 2000. He was diagnosed with sinusitis, vasomotor rhinosinusitis, and upper respiratory infections while in service. Furthermore, the Veteran submitted statements and affidavits from his former colleagues in service, his current wife and first wife, and daughter, who all indicated that the Veteran had longstanding sleeping and breathing problems, including snoring, which started in service and have continued to the present time. Accordingly, an in-service incurrence has been shown by the evidence. Having established current disabilities and in-service incurrences, the remaining question is whether the Veteran’s current sinusitis, allergic rhinitis, and obstructive sleep apnea are the result of service. The Veteran testified at the hearing in April 2017 and indicated that he noticed sleeping problems in the mid to late 1970s. Furthermore, he started having sinus pressure and headaches after he started flying in 1973. The Veteran submitted an affidavit dated in April 2017 from his first wife who indicated that she has known the Veteran since they were both 17 and were married from January 1973 to June 1986. She indicated that after the Veteran started flying with his squadron in service, he complained of sinus and ear issues. He would also snore and stop breathing. His current wife and daughter submitted statements and affidavits indicating that since the mid-1990s, the Veteran has suffered from sinus and breathing difficulty, including snoring. A VA examination was performed in October 2010, at which time the Veteran was diagnosed with chronic allergic rhinitis, chronic pansinusitis, and history of sleep apnea. The examiner concluded that it was less likely than not that the Veteran’s current allergic rhinitis and chronic pansinusitis were related to the treatment for recurrent upper respiratory tract infections noted in service. The examiner based this opinion on his inability to find evidence of chronic sinus disease or recurrent sinusitis in the Veteran’s records. Furthermore, current medical literature did not indicate that sleep apnea was secondary to rhinitis or pansinusitis. The Veteran submitted a statement by J.R.L, D.O. dated in July 2013. He indicated that the Veteran’s history was significant for chronic sinusitis and concluded that his sinus and nasal problems were present during his military service and have continued post-service. Furthermore, his persistent sinus and nasal obstruction issues played a significant factor in his obstructive sleep apnea. The Veteran submitted an April 2017 statement by S.P., D.O. Dr. S.P. has been the Veteran’s primary care physician since June 2005. He reviewed the Veteran’s service-treatment records and concluded it was more likely than not that the Veteran’s current chronic rhinosinusitis and obstructive sleep apnea developed during his time in the military service. Lastly, the Veteran submitted statements dated in April and May 2017 by J.M., M.D. Dr. J.M. has been treating the Veteran for chronic sinusitis, allergic rhinitis, and obstructive sleep apnea. He reviewed the Veteran’s service and post-service treatment records, along with the statements by his family members and friends, and opined that it was more likely than not that his current diagnoses of chronic sinusitis, chronic rhinosinusitis, and sleep apnea were incurred during his military service. Dr. J.M. reasoned that his service-treatment records clearly indicated his chronic sinusitis and chronic rhinosinusitis continued through his military service and post-military to the present time. Furthermore, medical literature supports the causation between obstructive sleep apnea and chronic nasal conditions and his sleep apnea manifested in service. After a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current sinusitis, allergic rhinitis, and obstructive sleep apnea are related to service. In this regard, the Veteran’s service-treatment records reveal longstanding sinusitis, vasomotor rhinitis, upper respiratory infections, and nasal congestion while in service. Furthermore, the lay evidence of record, including statements by the Veteran, his first wife, current wife, and daughter, indicate that he began snoring and having breathing issues while in service, which continued post-service. Lastly, Dr. J.M., the Veteran’s treating physician, reviewed the Veteran’s service-treatment records and post-service treatment records and concluded his current chronic sinusitis, allergic rhinitis, and obstructive sleep apnea were incurred in service given his documented in-service complaints and evidence of post-service continuous symptoms. The Board acknowledges the negative opinion provided by the October 2010 VA examiner. However, the Board gives little weight to this opinion. In this regard, the examiner indicated that there was no evidence of chronic sinusitis or rhinitis but subsequently diagnosed him with chronic pansinusitis and chronic allergic rhinitis. Furthermore, the examiner merely indicated that the Veteran’s obstructive sleep apnea was not secondary to his rhinitis or sinusitis but failed to provide an opinion as to whether his current obstructive sleep apnea was related to service. In view of the foregoing, and in consideration of the credible lay statements and medical evidence, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current sinusitis, allergic rhinitis, and obstructive sleep apnea were the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 4. Entitlement to service connection for non-Hodgkin's lymphoma The Veteran has been diagnosed with non-Hodgkin’s lymphoma and asserts it was incurred in service due to Agent Orange exposure during his presence in Thailand. A review of the Veteran’s military personnel records reveals that he was assigned to Patrol Squadron Forty as an aviation ordnanceman. He commenced a continuous sea duty tour in September 1972 and was assigned to Patrol Squadron Forty until February 1975. He testified at the hearing that his squadron patrolled the coast of Vietnam and stopped in Thailand on several occasions. While stopped at the Thailand air base, he stayed overnight near the perimeter of the base. Following the hearing, the Veteran submitted a statement by K.M. dated in May 2017. K.M. was assigned to Patrol Squadron Forty and served as the pilot of Combat Aircrew 14, along with the Veteran who served as the ordinance crewmember. Based upon entries noted in his flight log book, K.M. indicated that Aircrew 14 arrived at the U-Tapao, Thailand, air base on December 10, 1972, and January 17, 1973, and staying for several weeks. During their time at the U-Tapao base, they were housed in barracks in close proximity to the base perimeter and gate. After a review of the evidence, the Board finds that the Veteran had service at one of the designated Thailand bases, U-Tapao, and served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near the listed air base perimeters in Thailand. The Veteran and K.M. confirmed that the barracks were located near the perimeter of the military base. In light of the above evidence, the Board finds that the Veteran had service in U-Tapao, Thailand, and his duties placed him near the perimeter of the air force base. As such, he is presumed to have been exposed to herbicides. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Post-service treatment records confirm the Veteran’s diagnosis of non-Hodgkin’s lymphoma. Therefore, service connection is warranted. The Board acknowledges there is a discrepancy as to whether the Veteran has Hodgkin’s disease or non-Hodgkin’s lymphoma. See e.g., 07/31/2013, Medical Treatment Record- Non-Government Facility, pp. 3, 11; 01/15/2016, CAPRI, p. 7. However, the Board notes that both diseases are entitled to the presumption under 38 C.F.R. § 3.309(e). Therefore, the Board finds this discrepancy can be addressed by the RO in implementing the initial rating. Furthermore, with respect to the requirement that the disability manifests to a degree of 10 percent disabling as set forth under 38 C.F.R. § 3.307(a)(6)(ii), the Board finds that the evidence is at least in equipoise on this point. In this regard, both non-Hodgkin’s lymphoma and Hodgkin’s disease are rated 100 percent disabling when there is evidence of active disease or during a treatment phase. See 38 C.F.R. § 7709, 7715. During the rating period on appeal, there is evidence that the disease has been active and was treated with Rituxan. See e.g., See e.g., 07/31/2013, Medical Treatment Record- Non-Government Facility, p. 3. In sum, resolving all doubt in favor of the Veteran, the weight of the evidence establishes that the Veteran had a diagnosis of non-Hodgkin’s lymphoma and that he had presumed herbicide exposure during service. As such, service connection is warranted for non-Hodgkin’s lymphoma. 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e). 5. Entitlement to an effective date earlier than August 3, 2011, for service connection for radiculopathy of the left lower extremity During the hearing in April 2017, the undersigned VLJ acknowledged that the Veteran had withdrawn the issue of entitlement to an earlier effective date for his service-connected radiculopathy. However, a subsequent decision by the Federal Circuit Court clarified what constitutes an effective verbal withdrawal of an appeal. Specifically, a verbal withdrawal of an appeal at a hearing is effective “only where it is (1) ‘explicit’; (2) ‘unambiguous’; and (3) ‘done with a full understanding of the consequences of such action on the part of the [veteran].’” See Acree v. O’Rourke, 891 F.3d 1009, 1012-1013 (Fed. Cir. 2018) (quoting DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)) (explaining that the Board must consider all three prongs of the DeLisio standard when determining whether a verbal withdrawal of a claim is effective). After a review of the evidence, including the April 2017 hearing transcript, the Board finds that there has been no withdrawal of the issue on appeal that was explicit, unambiguous, and done with a full understanding of the consequences of such action. In this regard, the Veteran did not verbally affirm this withdrawal at the hearing and there is no indication that he withdrew this claim with a full understanding of the consequences. Accordingly, the Board will proceed with the adjudication of an earlier effective date for the Veteran’s service-connected radiculopathy. It is well established that the “effective date assigned for a secondarily service-connected condition is governed by 38 C.F.R. § 3.400,” Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007), which provides that the effective date of an award of service connection will be the “date of receipt of claim, or date entitlement arose, whichever is later” 38 C.F.R. § 3.400(b)(2). The mere presence of medical evidence, including medical records, does not establish an intent on the part of the Veteran to seek secondary service connection. Brannon v. West, 12 Vet. App. 32, 35 (1998); see also MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical had not previously been determined to be service-connected). Thus, any such medical records are insufficient to establish an application for service connection. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (stating that where a veteran had not been granted service connection, mere receipt of medical records could not be construed as an informal claim). For claims for an increase in a service connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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, 53 (1990). In an October 2009 rating decision, the RO continued the Veteran’s 20 percent disability rating for a lumbosacral strain. The Veteran was notified of this decision in a letter dated in October 2009. He did not appeal and no new and material evidence was submitted within one year. Accordingly, the October 2009 rating decision became final. See 38 C.F.R. §§ 3.156, 20.302. The Veteran filed a claim for an increased rating for his lumbar spine disability in November 2011. In a rating decision dated in May 2012, the RO continued the 20 percent disability rating for his lumbar spine disability and granted service connection for radiculopathy of the left lower extremity as secondary to the lumbosacral strain, effective August 3, 2011. After a review of the evidence, the Board finds that an effective date of January 6, 2011, but no earlier, is warranted. As discussed, any neurological abnormalities associated with a lumbar spine disability are part and parcel of the lumbar spine claim. See 38 C.F.R. § 38 C.F.R. § 4.71, Diagnostic Codes 5235 to 5243, Note 1. While looking back one year prior to the November 2011 claim for an increased rating for the service-connected lumbar spine disability, the Board finds that it was factually ascertainable that the Veteran had radiculopathy associated with his lumbar spine disability on January 6, 2011. See 05/20/2011, Medical Treatment Record-Government Facility, p. 6. Accordingly, an effective date of January 6, 2011, but no earlier, for the Veteran’s radiculopathy associated with his lumbar spine disability is warranted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel