Citation Nr: 19106901 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-24 492A DATE: January 29, 2019 ORDER Entitlement to service connection for sleep disturbances, to include sleep apnea, is granted. Entitlement to a compensable rating for sinusitis is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his obstructive sleep apnea began during active service. 2. The Veteran has not had any incapacitating episodes of sinusitis requiring prolonged antibiotic treatment or three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria to establish service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326(a) (2017). 2. The criteria for a compensable rating for sinusitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.97, Diagnostic Code 6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to April 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and December 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 1. Entitlement to service connection for obstructive sleep apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends his obstructive sleep apnea began during his active service. The Board concludes that the Veteran has a current diagnosis of obstructive sleep apnea that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records show that in September and October of 2007, the Veteran complained of loud snoring. An ear, nose and throat specialist examined the Veteran, then referred him for a sleep consultation to assess whether he had obstructive sleep apnea. The Veteran participated in a sleep study. However, the test results were normal and he was diagnosed with primary snoring. Private treatments notes from February 2009 indicate the Veteran again reported sleep disturbance due to snoring. In March 2014, the Veteran completed an additional sleep study, and was diagnosed with mild obstructive sleep apnea. As the evidence establishes the Veteran has a current diagnosis of sleep apnea, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes two VA medical opinions. The Veteran was afforded a VA examination in March 2014. The VA examiner opined that the Veteran’s current mild sleep apnea is less likely as not a progression of complaints made during active service. In support of her opinion, the examiner explained that following his complaints of snoring during service, the Veteran underwent a sleep study and it was determined he did not have sleep apnea. The examiner stated it is unlikely that the Veteran’s symptoms during service were due to sleep apnea given that the sleep study was negative, and he was not diagnosed until eight years after service discharge. An additional VA medical opinion was obtained in February 2016 to assess whether the Veteran’s sleep apnea is related to his service in the Southwest Asia theater during the Gulf War. The VA examiner opined that the Veteran’s sleep apnea is less likely than not related to a medically unexplained chronic multi-symptom illness related to his Gulf War service. The examiner explained that the Veteran has not been diagnosed with a chronic multi-symptom illness related to his Gulf War service, and he was not diagnosed with obstructive sleep apnea until 2014, over 24 years after serving in the Gulf War. Additionally, the examiner stated an association between service in Southwest Asia and sleep apnea has not been clearly defined. The evidence in favor of the claim includes two opinions from the Veteran’s private physicians, both of which assert the Veteran’s in-service complaints regarding sleep disturbance manifested as continued symptomatology after service and resulted in the diagnosis of obstructive sleep apnea. A March 2016 letter was submitted by Dr. E.G., who also treated the Veteran during service while stationed at Camp Lejeune. Dr. E.G. stated that in 2007, the Veteran presented with symptoms of loud snoring with witnessed apneas and nasal congestion. He noted that the Veteran underwent a sleep study, which revealed two obstructive apneas and resulted in a diagnosis of primary snoring. He stated that since the 2007 sleep study, the Veteran noted a return of snoring and progression of apnea, which led to the 2014 sleep study and sleep apnea diagnosis. Dr. E.G. opined that it is more likely than not that the Veteran’s current obstructive sleep apnea represents a progression of disease that occurred during service. In June 2016, Ms. R.B., a physician’s assistant, submitted an opinion in support of the Veteran’s claim. She stated that the Veteran’s sleep apnea symptoms originated during his active service. Ms. R.B. opined that the 2014 sleep apnea diagnosis is more likely than not a progression of symptoms that began during service. She explained that while the 2007 sleep study did not show obstructive sleep apnea, the Veteran’s symptoms progressed over time and resulted in the 2014 diagnosis, as sleep apnea tends to worsen with time and weight gain. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current sleep apnea is related to his service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a compensable rating for sinusitis Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). The Veteran has been assigned a noncompensable rating under DC 6513 for chronic maxillary sinusitis throughout the period on appeal. Under Diagnostic Code 6513, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year 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 warranted for three or more incapacitating episodes per year 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 warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6513 (2017). An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513, Note 1 (2017). The Veteran’s private physician, Dr. G.Z., submitted a Disability Benefits Questionnaire (DBQ) in September 2015. Dr. G.Z. noted that the Veteran underwent two sinus surgeries that he performed during September 2015, and included the treatment notes with the DBQ. He stated that the Veteran has a diagnosis of allergic rhinitis. He reviewed August 2015 computed tomography (CT) scans of the Veteran’s sinuses, showing opacification of the maxillary, frontal, and ethmoid sinuses. In response to the question as to whether the Veteran has findings, signs, or symptoms attributable to chronic sinusitis, Dr. G.Z. did not select either yes or no. Instead, he selected the boxes on the form associated with chronic sinusitis being detected only by imaging studies, and episodes of sinusitis. He then stated the Veteran did not have any incapacitating episodes of sinusitis requiring prolonged (four to six weeks) antibiotic treatment in the past 12 months. The physician did not know whether the Veteran had non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge, or crusting in the past 12 months. Additionally, Dr. G.Z.’s response to whether the Veteran had radical sinus surgery with chronic osteomyelitis was “N/A.” The Board concludes the preponderance of the evidence is against finding the Veteran is warranted a compensable rating for service-connected sinusitis. Aside from the September 2015 treatment notes and DBQ from Dr. G.Z., there is no additional medical evidence showing the Veteran suffered a worsening of sinusitis symptoms that resulted in incapacitating or non-incapacitating episodes. It appears from Dr. G.Z.’s medical records that the Veteran’s sinus complications were associated with allergic rhinitis. The Board notes that effective September 22, 2015, the Veteran was service-connected for allergic rhinitis with benign nasal polyp associated sinusitis with a 30 percent disability evaluation. Thus, he is in receipt of compensation for worsening symptoms that resulted in a separate disability. The Board also acknowledges that Dr. G.Z. did not clearly select “yes” or “no” regarding radical surgery with chronic osteomyelitis. However, his “N/A” response is interpreted to mean “not applicable.” Dr. G.Z.’s operative report also does not indicate the Veteran’s surgeries were characterized as radical with chronic osteomyelitis. The Board has also considered the brief submitted by the Veteran’s representative in November 2018. The Veteran’s representative contends that the Veteran has consistently related the severity of his sinusitis to the frequency and severity of his headaches, and consideration should be given to possible exacerbation. However, the Board finds this assertion is not supported by the evidence of record. In Dr. G.Z.’s DBQ, he did not list headaches as a symptom associated with the Veteran’s chronic sinusitis. He also noted in his August 2015 treatment notes that the Veteran was negative for headaches. Further, the Veteran is currently compensated for symptoms associated with migraine headaches, as he has been service-connected for headaches since May 1, 2008. Accordingly, the claim for a compensable rating for service-connected sinusitis is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel