Citation Nr: 18145307 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-44 581 DATE: October 30, 2018 ORDER New and material evidence having been received, the claim to reopen service connection for a depressive disorder, is granted. Entitlement to service connection for asthma, claimed as secondary to service-connected sinusitis, is denied. Entitlement to service connection for gastroesophageal disease (GERD), claimed as secondary to service-connected sinusitis, is denied. Entitlement to service connection for urticaria of the upper extremities, claimed as secondary to service-connected sinusitis, is denied. Entitlement to service connection urticaria of the lower extremities, claimed as secondary to service-connected sinusitis, is denied. Entitlement to service connection for tussive syncope, claimed as secondary to service-connected sinusitis, is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to service-connected sinusitis, is denied. Entitlement to a rating greater than 10 percent for sinusitis is denied.   REMANDED Entitlement to service connection for a depressive disorder is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In November 2012, the Agency of Original Jurisdiction (AOJ) denied reopening the Veteran’s claim of entitlement to service connection for a depressive disorder. The Veteran did not appeal that rating decision nor was new and material evidence received within one year of notice of the decision. 2. The evidence added to the record since the November 2012 decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim for service connection for a depressive disorder. 3. Asthma was first diagnosed years after service and is not otherwise related to service, and was not caused or aggravated by a service-connected disability. 4. GERD was first diagnosed years after service and is not otherwise related to service, and was not caused or aggravated by a service-connected disability. 5. Urticaria of the upper extremities was first diagnosed years after service and is not otherwise related to service, and was not caused or aggravated by a service-connected disability. 6. Urticaria of the lower extremities was first diagnosed years after service and is not otherwise related to service, and was not caused or aggravated by a service-connected disability. 7. COPD was first diagnosed years after service and is not otherwise related to service, and was not caused or aggravated by a service-connected disability. 8. Tussive syndrome is proximately related to service-connected sinusitis. 9. The most probative evidence reflects that the Veteran's sinusitis manifests with no more than four non-incapacitating episodes of sinusitis per year and no incapacitating episodes of sinusitis per year. CONCLUSIONS OF LAW 1. A November 2012 rating decision that denied reopening the Veteran’s claim for service connection for depression is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b) (2012); 20.302, 20.1103 (2018). 2. New and material evidence has been received to warrant reopening the previously denied claim of entitlement to service connection for depression. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 4. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 5. The criteria for service connection for urticaria of the upper extremities are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 6. The criteria for service connection for urticaria of the lower extremities are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 7. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 8. The criteria for service connection for tussive syncope are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018) 9. The criteria for a disability rating in excess of 10 percent for chronic sinusitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6513 (2018. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1984 to March 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. Following the RO’s certification of this appeal to the Board in June 2016, additional VA treatment records and examination reports have been incorporated into the Veteran’s electronic claims file. However, these records are either duplicate of records already on file or do not pertain to the disability claims presently before the Board. Accordingly, there is no prejudice to the Veteran in proceeding with a decision on the claims at this time. 38 C.F.R. § 20.1304 (c). I. New and Material In November 2012, the Agency of Original Jurisdiction (AOJ) reopened a previously denied claim of entitlement to service connection for depression and denied the claim on the merits. The basis of the denial is that the Veteran did not have a depressive disorder. The Veteran did not express disagreement with that decision nor was new and material evidence received within one year. The decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.200. In December 2012, the Veteran filed to reopen his claim of entitlement to service connection for a depressive disorder. Thereafter, in March 2014, the RO reopened the Veteran’s claim and denied service connection for depression on both a direct basis and as secondary to his service-connected sinusitis. See 38 C.F.R. §§ 3.303, 3.310. As noted, the basis of the final adverse decision in November 2012 was that the Veteran did not have a psychiatric diagnosis. The evidence on file at that time included an October 2012 VA mental health examination report finding that the Veteran did not have a psychiatric diagnosis. The evidence on file after that decision includes a February 2014 VA examination report containing a diagnosis of unspecified depressive disorder. That evidence is new as it was not before VA at the time of the November 2012 rating decision. The Board also finds that the new evidence is material as it relates to an unestablished fact necessary to support the claim. That is, it shows that the Veteran has the disability that he claims; namely, a depressive disorder. Accordingly, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for major depressive disorder. To that extent only, the appeal is allowed. II. Service Connection 1. Asthma, GERD, Urticaria of the Upper and Lower Extremities, COPD The Veteran asserts that disabilities diagnosed as asthma, GERD, urticaria of the upper and lower extremities, and COPD are secondary to his service-connected sinusitis. As a starting point, the Board notes that the Veteran has the disabilities that he claims. That is, post-service medical records contain diagnoses of asthma, urticaria, GERD, and COPD. In this regard, VA outpatient records in December 2012 contain diagnoses of asthma and rule out asthma, urticaria is noted in records dated in the early 2000s, GERD is noted in a February 2013 record, and COPD is noted in a February 2013 record. Although asthma is noted in VA outpatient records, the diagnosis is questionable in light of a VA examiner’s report in March 2013 that pulmonary function tests do not meet the criteria for a diagnosis of asthma and there were no documented attacks or exacerbations of asthma. Nonetheless, the Board will resolve reasonable doubt in the Veteran’s favor and find that he does have a diagnosis of asthma. 38 C.F.R. 3.102. The above determinations notwithstanding, the preponderance of the evidence is against finding that the Veteran’s asthma, GERD, urticaria, and/or COPD are proximately due to or the result of, or aggravated by service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In negating a link between the Veteran’s claimed asthma and service-connected sinusitis, the March 2013 VA examiner stated that asthma was not caused by sinusitis. He also stated that the Veteran’s urticaria was secondary to allergies and that chronic sinusitis can be caused by and/or aggravated by the same trigger or allergen as urticaria, but that chronic sinusitis did not cause skin problems. In addition, this disability has been diagnosed as being idiopathic in nature. Moreover, VA outpatient records contain the Veteran’s March 2015 report that he did not have any further outbreaks of urticaria after he stopped taking Lisinopril (medication for hypertension). Regarding GERD, a VA examiner in February 2013 opined that there was minimal evidence of gastroesophageal reflux on swallowing study and that EGD (esophagogastroduodenoscopy) found no evidence of GERD. However, due to the minimal finding of esophageal reflux on the swallowing study, the examiner found that he had GERD. However, he opined that GERD was not caused by or aggravated by sinusitis. He also reported that the Veteran’s Pulmonary Function Tests revealed a very mild borderline restrictive ventilatory defect (which technically was very mild borderline COPD). He went on to opine that chronic sinusitis did not cause or aggravate COPD unless there was aspiration, which was not shown on the Veteran’s swallowing study. The adverse opinions above are fully articulated and are based on the examiner’s review of the Veteran’s medical history and examination of him. Thus, the Board finds that they are probative. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, there are no medical opinions on file that are contrary to those opinions. While the Veteran believes that his asthma, GERD, urticaria, and COPD are proximately due to or the result, or aggravated by his service-connected sinusitis, he is not competent to provide a nexus opinion in this case as an opinion of that nature is medically complex and outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Service connection may also be granted on a direct basis. However, the preponderance of the evidence is against finding that the Veteran’s asthma, urticaria, GERD, and/or COPD are related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran was not shown to have those claimed disabilities while he was in service or for years after service, and there is no indication from the evidence of record, to include the Veteran’s own contentions, that those disabilities are related to his active service. In fact, the VA examiner in March 2013 opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Accordingly, service connection on a direct basis is not warranted. 38 C.F.R. § 3.303. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for asthma, GERD, urticaria, and COPD is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Tussive Syncope The Veteran asserts that his tussive syncope is secondary to his service-connected sinusitis. He explains that his sinusitis causes him to cough and that approximately two times a year the coughing leads to syncope episodes. VA outpatient records show that the Veteran began having syncope episodes in approximately 2008. That is supported by a September 2014 report by a VA internist who said that the Veteran was her patient and that he had an eight-year history of tussive syncope which she described as “passes out when he coughs”. Regarding the etiology of the coughing, there is evidence partially relating it to the Veteran’s nonservice-connected allergic rhinitis, smoking, and GERD. However, there is also evidence relating it to the Veteran’s service-connected sinusitis and associated postnasal drip. In this regard, A VA psychiatric examiner in September 2014 reported that the Veteran’s postnasal drip was a symptom of his sinusitis. Also, a VA examiner in October 2012 opined that the Veteran’s chronic cough may be related to the chronic sinusitis as seen on computed tomography scan imaging which would support service connection. In addition, there is a December 2012 VA pulmonary consultation report that states that the Veteran likely had a post nasal drip/chronic sinusitis picture. The Veteran was seen again for his chronic cough at a VA pulmonary clinic in February 2013. The physician at that time assessed him as having a chronic cough that had not improved. He went on to opine that, “we still believe that this is due to UACS [upper airway cough syndrome]” and that “he clearly has post nasal drip and it is not well controlled on Flonase and Zyrtec”. Additionally, a VA examiner in June 2013 related the Veteran’s tussive syndrome to postnasal drip, as well as to smoking. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tussive syncope is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tussive syncope is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Rating Greater than 10 Percent for Sinusitis The Veteran contends that he should receive a rating higher than 10 percent for his service-connected sinusitis. The Veteran's sinusitis has been rated as 10 percent disabling under 38 C.F.R. § 4.97, Code 6513 (2018). Under that code, a 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Neither VA outpatient records nor examination reports pertinent to this claim show that the Veteran meets the criteria for a higher than 10 percent rating for his sinusitis. That is, the Veteran is not shown to have more than six non-incapacitating episodes per year of sinusitis characterized by headache, pain, and purulent discharge or crusting. Rather, a VA examiner in June 2013 reported that the Veteran had three to four non-incapacitating episodes over the past 12 months. The examiner also reported that the Veteran did not have any incapacitating episodes of sinusitis over the past 12 months requiring prolonged treatment. In light of that evidence and the lack of any evidence to the contrary, a disability rating higher than 10 percent is not warranted for chronic sinusitis. 38 C.F.R. § 4.97, Diagnostic Code 6513 (2018). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for chronic sinusitis is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection for a Depressive Disorder In February 2014, VA obtained a medical opinion that addresses a possible nexus between the Veteran’s diagnosed depressive disorder and his service-connected sinusitis. However, at that time the Veteran was not service-connected for tussive syncope. That is noteworthy when considering that the Veteran relates his depression to his tussive syndrome. Accordingly, an addendum nexus opinion should be obtained. 38 U.S.C. § 5103A(d). TDIU The Veteran reported when he filed his claim for a TDIU in April 2013 that he can no longer work due to his four to five-year history of passing out unexpectedly (tussive syncope). He said that because of this condition he is fearful at times to be alone and to drive, operate machinery, and to climb on things. The Veteran’s family and friends submitted statements in February 2013 attesting to him passing out at random times while coughing. There is also an employment information form (VA Form 21-4192) on file in April 2013 from the Veteran’s last employer reporting that the Veteran was not able to operate tractors or climb on top of grain bins due to passing out and that he was basically limited to a helper which was not conducive to his line of work. The employer went on to report that the Veteran had been terminated due to his limitations. There are also VA outpatient records dated in April 2013 that show that the Veteran was advised not to drive due to tussive syndrome. In light of the Veteran’s now service-connected tussive syndrome and the evidence outlined above, the Veteran's claim should be referred to the Director, Compensation and Pension Service for consideration of an extra-schedular TDIU award. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the February 2014 VA mental health examiner or another appropriate clinician regarding whether it is at least as likely as not (50 percent degree of probability or higher) the Veteran's unspecified depressive disorder was caused or chronically worsened by his service-connected sinusitis and tussive syndrome. The claims file must be reviewed by the clinician in conjunction with the provision of the opinions. The examiner should provide a rationale for the opinions provided. An additional VA examination of the Veteran should only be performed if determined necessary by the VA examiner providing the opinion. 2. Thereafter, refer the Veteran's claim to the Director, Compensation and Pension Service, for consideration of an extra-schedular TDIU pursuant to 38 C.F.R. § 4.16 (b). 3. Then, readjudicate the remaining claims on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shawkey, Counsel