Citation Nr: 1808575	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  08-35 685	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss disability, to include as secondary to service-connected right papilloma.

2. Entitlement to service connection for chronic sinusitis, to include as secondary to service-connected right papilloma.

3. Entitlement to service connection for sleep apnea, to include as secondary to service-connected right papilloma.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

A. Creegan, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from January 1966 to January 1968.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

A hearing in this matter was held in March 2011. The transcript is of record.  The Veterans Law Judge who presided at the hearing is no longer employed by the Board.  In October 2017, the Board informed the Veteran and offered the opportunity for another hearing.  The Veteran did not respond within the requested 30 days, and the Board will conclude that the Veteran does not want another hearing and proceed accordingly.  

When this case was before the Board in March 2011, it was decided in part and remanded in part. The Board again remanded the case in September 2013 and in December 2014. The directives as to the issues of bilateral hearing loss and sleep apnea having been substantially complied with, these matters again are before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

The issue of chronic sinusitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDINGS OF FACT

1. Bilateral hearing loss is not attributable to service or to the Veteran's service connected right papilloma.

2. Sleep apnea is attributable to the Veteran's service connected right papilloma.

CONCLUSIONS OF LAW

1. Bilateral hearing loss was not incurred in or aggravated by service, nor was it proximately caused or aggravated by the Veteran's service-connected right papilloma. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).

2. Sleep apnea was proximately caused or aggravated by the Veteran's service-connected right papilloma. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran's representative has raised concerns with the VA opinions obtained. Those objections will be addressed below.

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). 

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). 

Bilateral Hearing Loss

The Veteran contends he is entitled to service connection for his bilateral hearing loss disability, secondary to his service-connected right papilloma. 

A February 2017 VA audiological examination showed hearing loss in both ears that is disabling for VA purposes. However, the VA examiner opined that the hearing loss was less likely than not "impacted by right sinus surgery and right sinusitis." The examiner's stated rationale was that the hearing loss is symmetrical, indicating that the right ear was not impacted by the right papilloma. The Veteran's representative generally argues this rationale is inadequate but provides no specific challenge or basis for the objection.  However, the Board finds that it reflects a thorough review of the file and is well-reasoned with reference to clinical findings and a competent opinion based on those findings. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). Therefore, the Board finds the opinion adequate finds it is entitled to significant probative weight.

As there is no other evidence as to the etiology of the Veteran's bilateral hearing loss, the Board finds that the evidence does not warrant a grant of service connection on a secondary basis. 

Although the Veteran is claiming secondary service connection, direct service connection is potentially applicable. Service treatment records confirm the Veteran received audiological examinations upon entrance and separation. Neither examination reflected a finding of hearing loss disability for VA purposes. 

The February 2017 examination also addressed a potential nexus between the Veteran's active duty and his hearing loss. The examiner opined that the Veteran's bilateral hearing loss is less likely than not related to his active duty because the Veteran's hearing was normal at entrance and separation. Furthermore, the examiner noted that "a noise induced hearing loss will not progress once it is stopped." The Board finds the opinion to be competent and credible, as there is no evidence to the contrary, and finds the rationale to be adequate, as it reflects a thorough review of the file and is well-reasoned. Nieves-Rodriguez, 22 Vet. App. 295, 302-05 (2008). Therefore, the Board finds the opinion is entitled to significant probative weight.

Accordingly, the Board finds that the evidence does not support a grant of service connection on a direct basis. 

Sensorineural hearing loss is considered to be an organic disease of the nervous system, and therefore is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). As such, service connection based on the presumption in favor of chronic diseases and continuity of symptomatology is potentially applicable in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309.

However, as noted above, the Veteran's service records noted no hearing loss disability at separation, do not reflect in-service complaints thereof, and the Veteran himself denied hearing loss at separation. The Veteran does not contend that his hearing loss began in service or within a year of separation. More specifically, there is no proof of sensorineural hearing loss to a degree of 10 percent within one year of separation. As such, service connection for right ear hearing loss disability is not warranted based on presumptive service connection for chronic diseases or continuity of symptomatology. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. 

The preponderance of the evidence weighs against a finding that the Veteran's current bilateral hearing loss disability is attributable to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. For these reasons, the claim is denied.

Sleep Apnea

The Veteran contends that his sleep apnea is secondary to his service-connected right papilloma, which was operated on in October 2005.

The Veteran's sleep apnea was diagnosed via sleep study at the Washington VA Medical Center in March 2006. In June 2006, his physician from the VAMC submitted an opinion stating that the Veteran's sleep apnea was more likely than not "related to and contributed to by the nasal tumor that he has had operated." The doctor explained that the apnea is obstructive, and the tumor caused narrowing of the upper airway. 

The Veteran was provided with a VA examination in February 2017. The examiner did not provide an opinion regarding secondary service connection. An addendum opinion from another doctor was obtained in February 2017. That opinion stated that the Veteran's sleep apnea was "not related" to the right papilloma. The stated rationale was that the obstructive sleep apnea "is felt due to oropharyngeal/telopharyngeal disorder ONLY and not contributory for this veteran in any anatomic way." Furthermore, the opinion stated that there was not "any plausible ENT nexus reasonable either to papilloma surgery or chronic sinusitis."  

There is no indication that either doctor is not competent or credible. However, the February 2017 opinion was provided after review of the Veteran's file only. The doctor did not examine the Veteran in person. Conversely, the doctor who provided the June 2006 opinion had conducted the Veteran's sleep study and diagnosed the Veteran with sleep apnea. Moreover, the June 2006 opinion described the process of the tumor obstructing the airway.  Therefore, the Board finds the June 2006 opinion to be of greater probative weight or at least a relatively equal balance for and against secondary causation.  Greater weight is assigned due to the doctor's greater familiarity with the Veteran's and his disorder and due to his explanation of the physiological process.

Accordingly, the Board finds that the preponderance of the evidence weighs in favor of granting service connection on a secondary basis.


ORDER

Entitlement to service connection for a bilateral hearing loss disability, to include as secondary to service-connected right papilloma is denied.

Entitlement to service connection for sleep apnea, to include as secondary to service-connected right papilloma is granted.


REMAND

The Veteran contends that his chronic sinusitis is secondary to his right papilloma. 

In December 2014, the issue of chronic sinusitis was remanded for an opinion as to etiology. The remand instructions asked the examiner to explain "whether there is a 50 percent or better probability that the disability was caused or permanently worsened by the right maxillary papilloma." 

In February 2017 the Veteran was provided a VA examination for his chronic sinusitis. The examiner noted that an April 2015 sinus CT showed "extensive right-sided sinonasal surgery with moderate polypoid mucosal thickening extending from the right maxillary antrum into the right nasal cavity and posteriorly along the right lateral aspect of the nasopharynx." The examiner also stated that "the diagnosis changed from the previously Service Connected diagnosis...the new diagnosis is a progression of the previous diagnosis." However, no etiological opinion was provided, and the meaning of the examiner's remarks as to the sinusitis being a progression of the previous diagnosis was not made clear. 

An addendum opinion was submitted a few days later that stated that "the condition is not related" to the right papilloma. However, the rationale only addressed direct service connection. No explanation was provided as to why the Veteran's chronic sinusitis is not related to his right papilloma. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is required to obtain full compliance with the prior remand directives.

Accordingly, the case is REMANDED for the following action:

1. Obtain an addendum opinion as to the etiology of the Veteran's chronic sinusitis. Request that the examiner review the electronic claims file including the service treatment records and provide an opinion to answer the following question:

Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's chronic sinusitis was caused or aggravated by the Veteran's service connected right papilloma?

A detailed rationale for the opinion must be provided. 

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond.


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs