Citation Nr: 18145947 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-38 029 DATE: October 30, 2018 ORDER The application to reopen the previously denied claim of service connection for asthma is granted. Service connection for asthma is granted. Service connection for obstructive sleep apnea is denied. Service connection for an anxiety disorder is granted. A disability rating greater than 30 percent for sinus headaches is denied. An effective date earlier than July 25, 2013, for the award of service connection and compensation for sinus headaches is denied. REMANDED Total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a July 2012 rating decision, the RO denied service connection for asthma. Additional evidence submitted since the RO’s July 2012 denial relates to an unestablished fact necessary to substantiate the claim. 2. Asthma is attributable to service. 3. Obstructive sleep apnea did not manifest during active service, and is not related to service. 4. The evidence supports a finding that the Veteran’s service-connected sinus headaches and jaw pain likely exacerbated an anxiety disorder. 5. Throughout the rating period, the Veteran’s sinus headaches have been manifested by prostrating attacks averaging once a month or more over the last several months; very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability, have not been demonstrated. 6. On March 24, 2010, VA received the Veteran’s formal claim for service connection for allergic rhinitis (claimed as sinus condition); this claim did not encompass a claim for service connection for sinus headaches. 7. On July 25, 2013, VA received the Veteran’s claim for service connection for headaches. 8. There was no pending claim prior to July 25, 2013, pursuant to which service connection for sinus headaches could have been awarded. CONCLUSIONS OF LAW 1. The RO’s July 2012 decision, denying service connection for asthma, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence submitted since the RO’s July 2012 denial is new and material; and the claim for service connection for asthma is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Asthma was incurred in active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The Veteran’s obstructive sleep apnea was not incurred in active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. An anxiety disorder is aggravated by service-connected sinus headaches and service-connected temporomandibular joint disability. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 6. The criteria for a disability rating greater than 30 percent for sinus headaches are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2017). 7. The criteria for an effective date earlier than July 25, 2013, for the award of service connection and compensation for sinus headaches are not met. 38 U.S.C. §§ 1131, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1978 to June 1982, and from December 1982 to May 1985. Application to Reopen Claim for Service Connection VA may reopen and review a claim that hase been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), “new evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Veteran is not entitled to an examination prior to submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). In July 2012, the RO denied service connection for asthma on the basis that service treatment records revealed no complaints of wheezing or shortness of breath due to asthma and no treatment for asthma. Nor was there evidence showing that asthma was related to the Veteran’s active service. Since then, the Veteran again claimed service connection for asthma in September 2015. The additional evidence was submitted, which indicated that the Veteran has been followed for asthma since age 38; that the Veteran reported having mild asthma symptoms with mild shortness of breath, coughing, and choking during active service that generally occurred with exercise; that the Veteran was exposed to different chemicals in active service, including polyurethane paint and epoxy; that such exposure can potentially trigger bronchial hyper-responsiveness, which could lead to asthma later; and that the Veteran’s asthma is at least as likely as not a result of chemical exposure in active service. The Board finds that the evidence added to the record since July 2012 is presumed credible, and that the additional evidence links current disability with active service. Hence, the additional evidence is considered new and material, and the Veteran’s claim for service connection for asthma is reopened. 38 U.S.C. § 5108. Service Connection Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Asthma Clinical evaluation at the time of the Veteran’s enlistment examination in active service in February 1978 shows normal nose, sinuses, mouth and throat, and lungs and chest. On medical history reports completed by the Veteran in 1978, 1980, 1983, 1984, and in 1988, he checked “no” in response to whether he ever had or now had asthma. Results of pulmonary function testing in February 1984 and in October 1984 were within normal limits. Chest X-rays were normal. Service treatment records, dated in September 1984, show that the Veteran had been exposed to polyurethane paint since February 1984. The Veteran reportedly used an air-powered respirator while painting, but he still smelled the paint fumes. He also was exposed to MEK and thinner. Clinical evaluation at the time revealed a history of exposure to polyurethane and epoxy, and no history of serious lung disease. The Veteran reported a history of bronchial asthma and allergies during childhood, and no asthmatic episode since then. He reported having frequent colds and occasional cough during episode of cold, but these were not worse during the period that he had worked with polyurethane. Examination in September 1984 revealed that breath sounds were normal; there were no crackles or wheezes or friction rub. Pulmonary function testing was conducted. VA records show an assessment of asthma, controlled, in March 2010. The January 2011 VA examination report shows a diagnosis of asthma. The examiner noted the Veteran’s report of a history of childhood asthma; and noted that there were neither records of treatment for asthma nor complaints of wheezing or shortness of breath due to asthma in the Veteran’s service treatment records. Based on this evidence, the examiner opined that the Veteran’s asthma was less likely than not caused by or the result of active service. In an August 2011 addendum, the same VA examiner reported the Veteran’s known exposure to chemicals in active service, including polyurethane paint and epoxy; and reasoned that this can potentially trigger bronchial hyper-responsiveness, which could lead to asthma. The examiner then opined that it was at least as likely as not that the Veteran’s asthma is a result of chemical exposure in active service. The Board concludes that the Veteran has a current diagnosis of asthma that is related to chemical exposure in active service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Hence, the Board finds that asthma is attributable to service. Obstructive Sleep Apnea Service treatment records do not reflect any findings or complaints of obstructive sleep apnea. Nor is there evidence of trauma or injury in active service involving, the head, neck, or throat. There is no evidence of treatment in active service for any sleep disorder. The Veteran has not since reported in the context of his claim that he experienced any sleep apnea in service. Therefore, the in-service element has not been met. Rather, post-service treatment records show the onset of disability in 2011—that is, more than two decades after the Veteran’s separation from active service. Records show that the Veteran underwent a sleep study in July 2011. A pulmonary consultation at that time revealed severe obstructive sleep apnea. The Veteran had used a nasal CPAP for a few weeks in August 2011, which he did not tolerate well. Following examination in April 2016, a VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by in-service injury or illness. In support of the opinion, the examiner reasoned that there was no objective medical evidence that sleep apnea was caused by or incurred in service. The Veteran’s complaints of trouble sleeping at the separation examination was secondary to his separation, and records were silent for nearly twenty-six years. Accordingly, the first credible showing of pertinent disability is decades after service with no competent evidence that sleep apnea is related to active service. In short, for the reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for obstructive sleep apnea. The preponderance of the evidence is against the claim; the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Acquired Psychiatric Disability, to Include Depression and Anxiety The Veteran seeks service connection for an anxiety disorder which he believes has increased in severity due to service-connected disabilities. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The January 2014 examiner has indicated that the Veteran’s anxiety, and his obsessive-compulsive disorder have been present since childhood. The Veteran underwent a psychological evaluation in July 2015. The diagnosis at the time was anxiety disorder due to another medical condition. Medical diagnoses included sinus headaches, temporomandibular joint disability, and allergic rhinitis. Current psychological symptoms included depressed mood, anxiety, suspiciousness, panic attacks, memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing relationships, difficulty adapting to stressful circumstances, neglect of personal appearance, and intermittent inability to perform activities of daily living. Mental status examination revealed complaints of increased trouble with short-term memory; thought content was appropriate. There was no report of overt hallucinations. Affect was restricted. The Veteran felt anxious and depressed; he endorsed symptomology of anxiety. Following evaluation in July 2015, the psychologist opined that the Veteran’s sinus headaches and temporomandibular joint disability were more likely than not aggravating his anxiety disorder. In support of the opinion, the psychologist referenced a body of literature which indicated that patients’ reporting more severe symptoms of anxiety and depression have more medical conditions; and reasoned that the Veteran continued to struggle with mental health symptoms, including anxiety, and chronic medical issues. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the July 2015 psychologist’s report to be persuasive in finding that service-connected sinus headaches and temporomandibular joint disability are more likely than not aggravating the Veteran’s anxiety disorder. The July 2015 psychologist reviewed the medical history and provided a rationale which is supported by medical literature; and indicated that the Veteran continues to struggle with anxiety and chronic medical issues. Here, aggravation is demonstrated. Specifically, the July 2015 psychologist noted the Veteran’s report of near-continuous depression and anxiety symptomology, which were not present prior to active service; and that his current anxiety disorder has become debilitating. The opinion is consistent with the evidence of record and is factually accurate, fully articulated, and contains sound reasoning. Therefore, the July 2015 opinion is afforded significant probative value because it is based on a review of the Veteran’s medical history and is supported by the evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304. In this case, the Board finds that the evidence is in favor of finding that the Veteran’s anxiety disorder is aggravated by service-connected disease or injury. When considering the service treatment records, the post-service medical evidence substantiating the Veteran’s claim, as well as the July 2015 psychologist’s favorable opinion; and resolving all reasonable doubt in his favor, the Board finds that an anxiety disorder is aggravated by service-connected disease or injury. See 38 C.F.R. § 3.310(a). Rating Sinus Headaches Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the RO has evaluated the Veteran’s sinus headaches as analogous to migraines. Headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months shall be evaluated as 30 percent disabling, and very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability shall be evaluated as 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The current 30 percent evaluation contemplates evidence compatible with migraine headaches, with characteristic prostrating attacks occurring on an average once a month over the last several months. The January 2011 VA examination report shows symptoms of persistent recurrent sinus headaches in the frontal region, as well as bilateral maxillary region. The headaches occurred about two-to-three times weekly, and were not incapacitating. The January 2014 VA examination report shows symptoms of constant head pain on both sides of head, which typically lasts up to three days. The January 2014 examiner indicated that the Veteran does have prostrating attacks of non-migraine headache pain more frequently than once per month; and that the Veteran does have very frequent prostrating and prolonged attacks of non-migraine headache pain. In terms of functional impact, the Veteran reported that he cannot focus or concentrate when experiencing a headache; and that he is unable to do physical or sedentary activities because of the pain. VA records show complaints of sinus pains with frontal headaches in May 2013. Here, the evidence reflects longstanding symptoms of sinus headache pain, which had increased in frequency over time. The overall evidence reflects non-migraine headaches with prostrating attacks occurring on an average of more than once a month over the last several months. At no time, however, does the evidence show that the Veteran had completely prostrating and prolonged attacks productive of severe economic inadaptability, to warrant a disability rating greater than 30 percent. The Board has considered the Veteran’s lay assertions regarding severity and finds that they support no more than the currently assigned 30 percent disability evaluation. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Effective Date of Service Connection for Sinus Headaches The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b). The effective date of service connection based on a reopened claim is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Here, the Veteran first filed a formal claim for service connection for a sinus condition on March 24, 2010. In a July 2012 decision, the RO granted service connection for allergic rhinitis (claimed as sinus condition); and assigned a 0 percent (noncompensable) rating effective from the date of claim. That decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Regarding headaches, on July 25, 2013, the RO received the Veteran’s informal claim for service connection. The January 2014 VA examination report shows a diagnosis of sinus headaches, and shows the date of diagnosis as 2013. As noted above, service connection was ultimately established for sinus headaches. In a January 2014 rating decision, the RO assigned an effective date of July 25, 2013, for the award of service connection for sinus headaches. The Veteran appealed for an earlier effective date. The Board notes that, following the RO’s July 2012 grant of service connection for allergic rhinitis, and prior to July 25, 2013—the date of receipt of the Veteran’s claim—the Veteran had not submitted any communication indicating an intent to apply for service connection for sinus headaches, which would constitute a pending claim. 38 C.F.R. § 3.155. His earlier claim for service connection for allergic rhinitis (claimed as sinus condition) had been finally resolved, and the Veteran had not appealed the determination. Further, in connection with that claim the Veteran did not complain of headaches, and there was no basis upon which to infer a claim for such as a symptom of a sinus or rhinitis condition. Hence, there is no pending claim prior to July 25, 2013, pursuant to which benefits could be granted. Since the claim for service connection for sinus headaches was received in 2013—i.e., more than one year following separation from service, as a matter of law, the effective date can be no earlier than the date of receipt of the claim. 38 C.F.R. § 3.400(b). Accordingly, the proper effective date can be no earlier than the date of receipt of the claim for service connection—that is, July 25, 2013. The same result is reached under the criteria for a claim to reopen, 38 C.F.R. § 3.400(r). The effective date of the award of compensation for sinus headaches cannot precede the effective date of the grant of service connection. The weight of the evidence is against the grant of an effective date earlier than July 25, 2013, for the award of service connection and compensation for sinus headaches. Reasonable doubt does not arise, and the claim for an earlier effective date is denied. REASONS FOR REMAND TDIU The Veteran may be entitled to special monthly compensation as provided in § 1114(s), if he is found to be unemployable due solely to one of his service-connected disabilities and there is additional service-connected disability or disabilities that are independently ratable at 60 percent, which are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. See Bradley v. Peake, 22 Vet. App. 280 (2008). As the Board has granted service connection for asthma and for an anxiety disorder which have yet to be rated, the TDIU issue is inextricably intertwined and must be deferred on remand for re-adjudication. The matter is REMANDED for the following action: 1. Implement the grant of service connection for asthma, and the grant of service connection for an anxiety disorder, to include assignment of initial evaluations. 2. After completion of the above, readjudicate the issue of entitlement to TDIU. If the benefit sought remains denied, furnish a supplemental statement of the case and then return the appeal to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta