Citation Nr: 18149137 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-15 897 DATE: November 8, 2018 ORDER Entitlement to an effective date of August 25, 2008, for the award of service connection for sinusitis, is granted. Entitlement to a service connection for a traumatic brain injury is granted. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for hearing loss is remanded Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for gastroesophageal reflux disease is remanded. FINDINGS OF FACT 1. The Veteran filed an original claim of service connection for sinusitis (claimed as sinus allergies) in August 2008, which remained pending until granted by the Agency of Original jurisdiction (AOJ) in December 2015. 2. The evidence is in favor of a finding that the Veteran suffered a traumatic brain injury during his active duty service, which resulted in residuals that include headaches and cognitive defects. 3. The evidence is against a finding that the Veteran’s hypertension manifested during, or is otherwise related to, his military service. CONCLUSIONS OF LAW 1. The criteria for assignment of an earlier effective date of August 25, 2008, for the award of service connection for chronic sinusitis, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.400. 2. The criteria for establishing service connection for a traumatic brain injury, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ADT) from March 1998 to July 1998, and on active duty from March 2003 to May 2004, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) from June 2009, May 2010, July 2010, and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2016. A transcript of the hearing is of record. Neither the Veteran nor his representative has raised any issues with the duties to notify or to assist. Earlier Effective Date The RO granted service connection for chronic sinusitis in its December 2015 rating decision, and assigned an effective date of September 1, 2015. The RO stated that the effective date of this grant was the date of the evidence showed that the entitlement arose upon VA examination conducted on that date. The VA examiner’s opinion stated that the Veteran’s current sinusitis symptoms were at least as likely as not caused by or related to his in-service complaints of sinus problems. The Veteran contends that the effective date should be the date of an initial claim of service connection for sinus allergies filed in August 2008. The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Relevant to this appeal, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)); 38 C.F.R. § 3.151 (2014). A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Veteran filed an original claim for “sinus allergies” that was received by VA on August 25, 2008. A VA examination the following April 2009 noted diagnoses of allergic rhinitis and sinusitis, and the VA examiner provided the positive etiological opinion that these conditions had their onset or became symptomatic during the Veteran’s active military service. However, the RO denied the Veteran’s claim in June 2009 based on a negative medical opinion obtained earlier that month that these conditions predated the Veteran’s active service and were not aggravated therein. The Veteran initiated and perfected an appeal. In December 2015, subsequent to an additional VA examination in September 2015, the RO awarded service connection for “chronic sinusitis (claimed as sinus allergies).” Based on the foregoing, the Board finds that the Veteran’s claim for sinus allergies, filed on August 25, 2008, remained pending until the award of service connection in December 2015 and August 25, 2008 is considered the date of claim. Thus, the effective date should be that date unless it is shown that entitlement did not arise until a later date. 38 C.F.R. § 3.400. While the RO found that the VA examination dated September 1, 2015, provided the first affirmative diagnosis with a positive medical opinion for the issue of sinusitis, as noted above, sinusitis was diagnosed upon VA examination in April 2009 and a positive etiological opinion was provided at that time. This opinion was reinforced by the later September 2015 opinion. The Board finds that entitlement to service connection has existed throughout the course of the appeal and the proper effective date is the date of claim – August 25, 2008. See 38 C.F.R. § 3.400(b)(2)(i). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 active military service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). “Active military service” includes not only active duty but also qualifying ADT with regards to a disability due to disease or injury, and inactive duty for training for a disability from injury (though not also disease). 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6. VA has established certain rules and presumptions for chronic diseases, including hypertension. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). It is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Traumatic Brain Injury (TBI) The Veteran seeks service connection for a TBI, which he asserts is a result of head trauma sustained during his military service. Specifically, the Veteran has asserted that various stressors related to his service-connected posttraumatic stress disorder (PTSD), including mortar attacks, also resulted in his TBI residual manifestations of headaches and cognitive defects. Initially, the Board notes that the Veteran is currently diagnosed with TBI, as evidenced by the VA Medical Center treatment records and upon VA examination in August 2014. VA treatment records note a September 2009 physician’s statement that the Veteran did sustain a mild TBI. The Veteran’s STRs are silent for any complaints, treatments, or diagnosis of TBI, including a separation examination from May 2004 that was negative for complaints of traumatic brain injury or evidence of a head injury with loss of consciousness during active service. The Board does note, however, that the Veteran’s claimed PTSD stressors, i.e., mortar attacks, were conceded by VA in a March 2010 administrative decision. Indeed, the Veteran’s in-service injury is further evidenced by the RO’s grant of service connection for PTSD. Therefore, the Board concedes an in-service injury. Post service-treatment records note a post-deployment health reassessment in August 2009 that did not indicate a TBI; however, the Veteran did complain of headaches. A February 2010 cognitive evaluation notes the Veteran reporting that he noticed a cognitive decline after returning from deployment to Iraq. He stated that while in Iraq there was little deviation from routine and was therefore not aware of any cognitive impairment at the time, but upon return he noticed problems with attention, memory, word finding, slowed thinking, and personality change. Cognitive testing revealed moderate cognitive impairment in attention, memory, and visuospatial skills. In the September 2009 statement from a VA physician, it was opined that it was less clear whether his symptoms were the result of the deployment related injuries the Veteran described, explaining that while it was possible his headaches were related to his TBI given their onset, his other symptoms began later. While a VA examination in August 2014 diagnosed a TBI with residuals that included headache, memory loss, and visual spatial orientation, no opinion regarding the etiology of the Veteran’s TBI beyond his own lay assertions was provided. Based on the lack of a definitive opinion as to the etiology of the Veteran’s TBI and resulting residuals, VA TBI and headache examinations were afforded in September 2015 and again in December 2016. Headaches and cognitive disorders, as well as a neurogenic bladder, were noted as residuals attributable to his TBI. After review of the record, the examiner opined that it was at least as likely as not that the Veteran’s TBI incurred in or was caused by the documented mortar attacks when he was deployed in Southwest Asia. Based on the foregoing lay and medical evidence of record, the Board finds that the weight of the evidence supports a grant in this case. Accordingly, the Board finds that service connection TBI is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Hypertension The Veteran asserts that he has a current diagnosis of hypertension that had its onset during his military service. For the following reasons, the Board finds that service connection is not warranted. The Veteran’s medical treatment records dated throughout the appeal confirm a diagnosis of hypertension. However, the evidence of record does not establish an in-service incurrence or aggravation of hypertension. A diagnosis of hypertension for VA purposes must be confirmed by readings at least two or more times on three different days, which his STRs are negative for. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In addition, multiple blood pressure readings taken during in-service medical examinations did not indicate abnormally high blood pressure. An Initial Medical Review in January 2005, less than one year after his second period of active duty, notes medication only for his allergies and gastroesophageal reflux disease. The medical record is silent regarding this disability until four years after service in April 2008. As hypertension is not shown to be present during service or in the year following separation from service, in-service incurrence of hypertension cannot be presumed. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The Veteran was afforded a VA examination in September 2015. Upon review of the evidence, including the Veteran’s claims file and medical records, the examiner opined that it was not at least as likely than not (less than a 50 percent probability) that the Veteran’s hypertension was incurred in or caused by his active military service. There is no medical evidence in significant conflict with the above findings and opinion of the VA examiner. While the Veteran continues to be treated for hypertension, no other medical provider has provided a probative opinion as to its etiology. Thus, the preponderance of the evidence is against a finding that the Veteran’s hypertension is related to his military service. The Board acknowledges the Veteran’s contention during his Board hearing that hypertension preexisted his active service, and that it “skyrocketed” during deployment in Southwest Asia. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, excepts as to defects, infirmities, or disorders noted at the time of the entrance examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrated that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a preexisting disease or injury is noted on examination at service entrance, such disease or injury will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). As the Board has noted, however, the Veteran’s STRs, including his records related to his first period of service and examination’s related to his period of active duty beginning in March 2003, are silent for any symptoms or complaints related to hypertension. The Veteran noted in an Initial Medical Review dated January 2003 that he was taking no medications, despite his assertion to the contrary during his Board hearing that preexisting hypertension was being controlled by medication. Thus, the Veteran is presumed to have been sound upon entry to active service in March 2003. Moreover, the record is negative for complaints or a diagnosis of hypertension until 2008, with an additional medical review in January 2005 listing only medication for allergies and gastroesophageal reflux disease. Thus, the Board finds the evidence is also against a finding that the Veteran’s hypertension preexisted and was aggravated beyond it’s normal progression by his period of active duty and deployment to Southwest Asia. The Board acknowledges that a veteran is competent to describe symptoms that he can perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007. In that regard, the Veteran has asserted a history and symptomology of hypertension that either occurred in service or is otherwise related to service. However, whether any symptoms the Veteran experienced in service or following service are in any way related to these current disabilities requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). As the Veteran is not shown to possess any medical expertise, his opinion as to the etiologies of his hypertension is not competent medical evidence. Moreover, the medical record calls into question the veracity of Veteran’s statements regarding the onset and purported in-service progression of his hypertension. In any event, the Board finds the medical opinion of record more probative than the Veteran’s lay statements, as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disabilities and is supported by clear rationale. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. REASONS FOR REMAND While the Board regrets further delay, the Veteran’s service connection claims for hearing loss and obstructive sleep apnea must be remanded for additional development. 1. Service connection for hearing loss Review of the record shows that additional relevant evidence was added to the file by VA since the last Statement of the Case (SOC) was issued on this claim in May 2011, including additional VA treatment records and a September 2015 VA audiological examination. While a Supplemental Statement of the Case (SSOC) was issued in December 2015, the hearing loss claim was not addressed. Thus, as no SSOC was issued on this matter after the submission of the additional records, nor has any waiver of any additional evidence been submitted by the Veteran, remand is required so that this new evidence can be reviewed in the first instance by the AOJ. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. The Board notes that, despite an indication of hearing loss at higher frequencies, bilaterally, and an indication of moderate left ear hearing loss in April 2008, the Veteran did not have hearing loss for VA purposes upon VA audiological examination in September 2015. See 38 C.F.R. § 4.85. If the AOJ determines that a new VA examination and/or opinion is warranted to determine the severity and etiology of the Veteran’s hearing loss after review of the new evidence of record, one should be provided. 2. Service connection for OSA The record reflects a diagnosis of OSA, confirmed by a sleep study in October 2008. The Veteran asserts that the symptoms of his OSA began during his military service, as evidence by his submission of several buddy statements detailing his excessive snoring. A VA examiner opined in September 2015 that his OSA was not related to his military service, explaining that the first complaint and diagnosis of his condition was more than four years following the Veteran’s active service. The Board notes, however, that in the Veteran’s initial claim for OSA was a claim for restless sleep/sleep disturbances as a result of asbestos exposure. Service treatment records in January 2004 indicates possible asbestos exposure and a post-deployment questionnaire in March 2004 shows the Veteran reporting difficulty breathing and concerns about asbestos exposure. No medical opinion has been provided, however, regarding any possible relationship between the Veteran’s possible asbestos exposure and his current OSA. The record also contains several buddy statements regarding his onset of symptoms that were not addressed by the VA examiner. Given the Veteran’s alternative theory of entitlement and his lay and buddy statements regarding his onset of symptoms, the Veteran’s OSA claim must be remanded to obtain a VA examiner’s addendum opinion. 3. Service connection for Gastroesophageal Reflux Disease (GERD) The Veteran asserts that his diagnosed GERD was caused or aggravated by his active military service. At his hearing before the undersigned, he stated that he had a slight acid reflux problem before his second period of service and deployment to Southwest Asia, but that it worsened in Iraq due to an inadequate diet. As an initial matter, the Board finds that the Veteran’s GERD did preexist his period of service beginning in March 2003. While a March 2002 medical history report and contemporaneous medical examination is negative for complaints or diagnosis of GERD symptomology, a September 2002 private treatment record notes the Veteran being treated for GERD with medication. Moreover, while a January 2003 Initial Medical Review, two months prior to deployment, notes the Veteran reporting that he was not taking any medications at that time, a February 2003 statement from a private physician notes a history of persistent heartburn treated with Protonix. STRs, including a post-deployment questionnaire, note that the Veteran was taking medication for GERD during and after his deployment. The Board finds that the evidence remains unclear, however, as to whether the Veteran’s GERD was aggravated by his period of active service and deployment to Southwest Asia beginning in 2003. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The Veteran was afforded three VA examinations during the appeal, in April 2009, June 2009, and September 2015. The April 2009 examiner opined in the positive on only a direct service connection basis – that his GERD was incurred in service during his deployment to Southwest Asia. In June 2009, however, it was noted that the Veteran’s GERD preexisted his deployment to Southwest Asia, and the examiner opined that there was no evidence that his GERD was aggravated beyond its normal progression during said service, with no further rationale. While a VA examiner did note in September 2015 that the Veteran had a GERD diagnosis in 2002, no aggravation opinion was provided, only an additional positive opinion that his GERD was incurred in or caused by his active service between 2003 and 2004. As the medical evidence is unclear as to whether the Veteran’s preexisting GERD was aggravated beyond its natural progression by his deployment to Southwest Asia, an addendum opinion is necessary before the Board can properly adjudicate the claim. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Conduct any appropriate development necessary to verify the Veteran’s reported in-service exposure to asbestos. Thereafter, make a formal finding regarding the likelihood of such exposure during the Veteran’s active service and associate the report of this determination with the claims file. Attention is directed to a January 13, 2004 service treatment record noting possible exposure to asbestos while in support of Operation Iraqi Freedom. 3. After the above developments have been completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current OSA is related to an in-service injury, event, or disease, to include exposure to asbestos. In offering the opinion, the examiner is asked to consider any formal finding of asbestos exposure and the Veteran’s submitted lay and buddy statements noting in-service OSA symptomology. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested, to include alternative etiologies, as the Board is precluded from making any medical findings. 4. After the above developments have been completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether the Veteran’s GERD, which pre-existed his period of active duty service from March 2003 to May 2004, increased in disability during that period of service. If so, the examiner is asked to opine as to whether the evidence is clear that the increase in disability was due solely to the natural progression of the pre-existing GERD. In offering the opinion, the examiner is asked to consider the medical record prior to, during, and after the Veteran’s deployment to Southwest Asia, as well as his submitted lay statements asserting in-service aggravation of preexisting GERD. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested, as the Board is precluded from making any medical findings. 5. Then, the record should again be reviewed, to include the additional evidence added to the record since the May 2011 SOC as to the issue of entitlement to service connection for hearing loss. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case regarding the remaining issues on appeal and be given the opportunity to respond. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel