Citation Nr: 18155489 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-43 071 DATE: December 4, 2018 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service connected sinusitis and allergic rhinitis is granted. Entitlement to a compensable rating for sinusitis is denied. Entitlement to a compensable rating for allergic rhinitis is denied. FINDINGS OF FACT 1. The Veteran is currently service connected for sinusitis and allergic rhinitis. 2. The Veteran has a current diagnosis of obstructive sleep apnea. 3. Affording the Veteran the benefit of the doubt, it is at least as likely as not that his obstructive sleep apnea is proximately due to or aggravated beyond its natural progress by his service connected respiratory conditions. 4. For the entire appeal period, the Veteran’s sinusitis has not manifested in any incapacitating episodes or non-incapacitating episodes characterized by headaches, pain and purulent discharge or crusting. 5. For the entire appeal period, the Veteran’s allergic rhinitis did not manifest in polyps, a 50 percent or greater obstruction of either side or complete obstruction of one side of the nasal passage. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea on a secondary basis have been met. 38 U.S.C. §1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to a compensable rating for sinusitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.97 DC 6513. 3. The criteria for entitlement to a compensable rating for allergic rhinitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.97 DC 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from August 1973 to December 1998. 1. Entitlement to service connection for obstructive sleep apnea as secondary to service connected sinusitis and allergic rhinitis Service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is no dispute that the Veteran is service connected for sinusitis and allergic rhinitis. There is also no dispute that the Veteran is diagnosed with obstructive sleep apnea, most recently in the September 2011 private sleep study. The remaining issue is a nexus, for which conflicting opinions have been provided. In June 2012, a VA examiner found that the Veteran’s sleep apnea was at least as likely as not proximately due to or the result of the claimant’s service connected condition. However, the Board cannot afford probative weight to this opinion. The examiner’s rationale, while detailed, was responsive to the Veteran’s already service connected conditions and did not discuss treatment for obstructive sleep apnea or adequately address how it was proximately due to the Veteran’s service connected disabilities. Additionally, in November 2011 and July 2017, the Veteran’s private Dr., citing the Veteran’s treatment for chronic allergic rhinitis and statements of fellow servicemen regarding symptoms of obstructive sleep apnea in service, found that it was more likely than not that the Veteran’s allergic rhinitis contributes to his sleep apnea. The Board finds this opinion to be of some probative value given the examiner’s extensive treatment history with the Veteran. However, the “contributed to” language of the opinion is too nonspecific for the Board to find a true nexus here. The Board acknowledges that while this opinion does not explicitly address aggravation, it can be inferred from a review of the treatment records from the same provider that she intended to conclude that the Veteran’s nasal conditions contributed negatively to his sleep apnea. Specifically, in November 2016, Dr. N.G. noted that the Veteran’s congestion was so bad that he was having trouble using his CPAP. The Veteran’s congestion was confirmed as a symptom of his sinusitis throughout the record. In October 2013, a second VA examiner provided a negative nexus opinion regarding an etiological link between the Veteran’s obstructive sleep apnea and his sinusitis. The October 2013 examination report notes that people with chronic sinusitis have nasal obstruction which can make sleep apnea worse or more difficult to treat but goes on to say that this is not causative and as such does not support the conclusion that the condition is proximately due to sinusitis. While the examiner’s rationale alludes to aggravation, the examiner failed to address whether the Veteran’s sleep apnea was aggravated beyond its natural progress by his service connected sinusitis. Consequently, the Board affords limited probative value to the October 2013 negative nexus opinion. After having carefully reviewed the record, and weighing the evidence in support of and the evidence against the claim, the Board finds that the issue of nexus is in equipoise. Thus, resolving any doubt in the Veteran’s favor, entitlement to service connection for obstructive sleep apnea has been established, and the appeal is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). As to claims of entitlement to an increased evaluation, as opposed to a higher initial evaluation, “the relevant temporal focus... is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim.” Hart v. Mansfield, 21 Vet. App. 505, at 509 (2007). This is because the effective date of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date. 38 U.S.C. § 5110 (b)(2) (2012). 1. Entitlement to a compensable rating for sinusitis Sinusitis is rated under 38 C.F.R. § 4.97, DC 6513. Under this provision, a 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis [an incapacitating episode of sinusitis is one that requires bed rest and treatment by a physician] 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. Id. The Board finds that the evidence supports neither criterion. First, the Veteran has not contended, nor does the evidence support, that his sinusitis has been incapacitating. Second, the Board finds that the record does not support that the Veteran’s sinusitis has manifested in non-incapacitating episodes characterized by the required symptomology or at the requisite frequency during the appeal period to warrant a higher disability rating. In October 2011, the Veteran submitted a claim for an increased rating for sinusitis. For the entire appeal period, his sinusitis has been assigned a noncompensable rating. He contends that he is entitled to a higher disability rating for his sinusitis because he complained of headaches prior to his retirement from the military and he had numerous visits to his primary care provider, ear, nose and throat doctor (ENT) and the VA with complaints about nasal blockage. He also submitted evidence that he used a nasal spray daily to treat the symptoms. Upon review of the evidence, the Board finds that an increased rating is not warranted. The Veteran was provided with a VA examination to assess the status of this disability in June 2012. In the relevant portion, the June 2012 examiner noted that the Veteran had no surgery on his nose or sinuses, that his sinusitis was treated with over the counter medications, and the Veteran had no incapacitating episodes requiring prolonged antibiotic treatment or non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The Veteran was treated for chronic congestion in October 2011, May 2012, March 2015, October 2015, November 2015 and November 2016. During the March 2015 visit, the Veteran also sought treatment for intermittent flare-ups of sinus symptoms including dryness associated with crust and nose bleeding. The clinician noted that the last flare-up had occurred approximately 3 weeks prior. In October 2015, the Veteran again complained of nose bleeds. Notably, the Veteran did seek treatment for sinusitis symptoms at least three times in 2015. However, he was treated for congestion and nose bleeds. There is no indication that he reported headaches, pain or purulent discharge at any of these visits. In September 2016, the Veteran provided competent lay testimony that he suffered headaches prior to his retirement in 1998, and while the Board finds the Veteran’s statement about headaches credible, the record does not support that these symptoms have occurred at least three times a year during the appeal period as required to warrant a higher disability rating. In the Veteran’s correspondence, he did not report any continuity since 1998. In contrast, when assessed for these symptoms in the June 2012, the Veteran did not report headaches, pain or purulent discharge associated with his sinusitis in the preceding 12 months. The Veteran’s lay statements, private treatment records and VA treatment records do not demonstrate any evidence of purulent discharge or crusting. The only evidence of crusting in the record was associated with nose bleeds. In fact, in June 2012, the Veteran underwent a separate VA examination for obstructive sleep apnea. That examiner noted that the Veteran had been having chronic nasal congestion and non-purulent rhinorrhea for years. A Disability Benefits Questionnaire for sinusitis from the same month is similarly negative for purulent discharge. In sum, the Board finds that there is insufficient evidence to support a higher disability rating for the Veteran’s sinusitis. Although the Veteran frequently seeks treatment for congestion and flare-ups, the evidence does not show that his symptoms included headaches, pain or purulent discharge with sufficient frequency to satisfy the rating criteria for an increased evaluation. Therefore, the Board finds that the evidence does not support a higher disability rating. 2. Entitlement to a compensable rating for allergic rhinitis The Veteran submitted a claim for an increased rating for allergic rhinitis and in October 2011. For the entire appeal period, this condition has been assigned a noncompensable rating. Allergic rhinitis is rated under 38 C.F.R. § 4.97, DC 6522. Under this provision a 10 percent rating is warranted for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side; and a 30 percent evaluation is warranted for allergic Rhinitis with polyps. Id. The Board finds that no other DCs are implicated by the Veteran’s increased rating claim for allergic rhinitis. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (held that where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). The Veteran underwent a VA examination in June 2012 which revealed no polyps, no deviated septum and no permanent hypertrophy of the nasal turbinates. There was no finding of nasal obstruction during the examination. The Veteran’s VA and private treatment records indicate that he suffered from problems with congestion, but they do not contain evidence that he had 50 percent obstruction of nasal passages on both sides or complete obstruction on one side due to his rhinitis. In October 2011 and May 2012 when inspections of the Veteran’s nasal passages were conducted the only note was that the Veteran had congestion. The majority of the Veteran’s private treatment records indicate only a diagnosis and maintenance of the Veteran’s allergic rhinitis without indication of any obstructions. A January 2017 report from a private ENT noted that the Veteran suffered from nocturnal nasal obstruction but did not indicate a degree. Lay testimony from the Veteran demonstrates that he feels his nasal passages are blocked, he suffers from congestion, and he takes medication to treat this congestion. While the Veteran is competent to testify about what medication he takes and that he feels congested, the Veteran’s statements that his nasal passages are obstructed is not supported by the most probative evidence of record. The Veteran at no point indicated that he was 50 percent blocked on both sides of his nose and there is no evidence to suggest he is competent to assess that. Nor did he provide lay testimony that one nasal passage was 100 percent blocked. Further, as noted above, there is no evidence in the treatment records to support this conclusion. In summary, the preponderance of the evidence does not indicate that the Veteran has polyps, greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side due to his service-connected rhinitis. See 38 C.F.R. § 4.97, DC 6522. Therefore, the claim for a compensable rating for allergic rhinitis must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Sherman Associate Counsel