Citation Nr: 19175353
Decision Date: 09/27/19	Archive Date: 09/27/19

DOCKET NO. 16-38 200
DATE: September 27, 2019

ORDER

New and material evidence having been received, the claim of entitlement to service connection for right hand sprain is reopened, and to this extent only, the appeal is granted.

New and material evidence having been received, the claim of entitlement to service connection for partial blindness of the right eye is reopened, and to this extent only, the appeal is granted.

New and material evidence having been received, the claim of entitlement to service connection for history of ear infection is reopened, and to this extent only, the appeal is granted.

Entitlement to service connection for carpometacarpal degenerative joint disease and tenosynovitis of the right hand (right hand disability) is granted.

Entitlement to service connection for degenerative changes of the metacarpophalangeal (MCP) joint of the right thumb is granted.

Entitlement to service connection for carpal tunnel syndrome of the right hand is denied.

Entitlement to service connection for femoral acetabular impingement syndrome including labral tears of the left side (left hip disability) is granted.

Entitlement to service connection for chronic bronchitis is denied.

Entitlement to service connection for asthma is granted.

Entitlement to service connection for sleep apnea is granted.

Entitlement to a rating in excess of 10 percent for chronic sinusitis with headaches is denied.

REMANDED

Entitlement to service connection for a left shoulder disability, to include joint pain as due to an undiagnosed illness, is remanded.

Entitlement to service connection for a low back disability, to include joint pain as due to an undiagnosed illness, is remanded.

Entitlement to service connection for bilateral plantar fasciitis/flat feet is remanded.

Entitlement to service connection for detached retina of the right eye is remanded.

Entitlement to service connection for partial blindness of the right eye is remanded.

Entitlement to service connection for ear infections, to include as due to an undiagnosed illness, is remanded.

Entitlement to service connection for residuals of a deviated septum, status post septoplasty is remanded.

Entitlement to service connection for residuals of nasal polyps, status post polypectomy is remanded.

Entitlement to service connection for acid reflux is remanded.

Entitlement to a rating in excess of 10 percent for residuals of tinea versicolor of the posterior neck and anterior axilla to include pseudofolliculitis barbae is remanded.

REFERRED

In a May 2019 rating decision, the RO granted service connection for occupational problems with a history of posttraumatic stress disorder (PTSD) with major depressive disorder with anxious distress with an evaluation of 30 percent effective February 26, 2016; and granted service connection for migraine including variants with tension headaches with an evaluation of 30 percent effective February 26, 2019.  As the May 2019 decision represents a full grant of the benefits sought with respect to the claims for service connection for PTSD, major depressive disorder, and headaches, to include as due to an undiagnosed illness, these matters are no longer before the Board for consideration.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  To the extent that the Veteran’s representative appears to be in disagreement with the assigned effective dates, this matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.

FINDINGS OF FACT

1. Claims for service connection for right hand sprain, partial blindness of the right eye and history of ear infection were most recently denied in an unappealed March 1999 rating decision.

2. The evidence received since the March 1999 rating decision is neither cumulative nor redundant and raises a reasonable probability of substantiating the claims for service connection for right hand sprain, partial blindness of the right eye and history of an ear infection.

3. Resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that his carpometacarpal degenerative joint disease and tenosynovitis of the right hand began during active service.

4. Resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that his degenerative changes of the metacarpophalangeal joint of the right thumb began during active service.

5. The preponderance of the evidence of record does not reflect that the Veteran has carpal tunnel syndrome of the right hand which was incurred in, aggravated by, or otherwise related to his active duty service.

6. Resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that his femoral acetabular impingement syndrome including labral tears of the left side is proximately due to or caused by his service-connected right ankle disability.

7. Resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that his asthma is related to service.

8. The preponderance of the evidence of record does not reflect that the Veteran has chronic bronchitis which was incurred in, aggravated by, or otherwise related to his active duty service.

9. Resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that his obstructive sleep apnea is related to service.

10. For the entire period on appeal, the Veteran’s chronic sinusitis with headaches is not productive of one or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; three or more non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.

CONCLUSIONS OF LAW

1. The March 1999 rating decision, which denied service connection for right hand sprain, partial blindness of the right eye and history of an ear infection, is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

2. New and material evidence has been received to reopen the claims of entitlement to service connection for right hand sprain, partial blindness of the right eye and history of an ear infection.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

3. The criteria for service connection for carpometacarpal degenerative joint disease and tenosynovitis of the right hand are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a).

4. The criteria for service connection for degenerative changes of the metacarpophalangeal joint of the right thumb are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a).

5. The criteria for service connection for carpal tunnel syndrome of the right hand are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a).

6. The criteria for service connection for femoral acetabular impingement syndrome including labral tears of the left side are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.310.

7. The criteria for service connection for asthma are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a).

8. The criteria for service connection for chronic bronchitis are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a).

9. The criteria for service connection for obstructive sleep apnea are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a).

10. For the entire period on appeal, the criteria for a rating in excess of 10 percent for chronic sinusitis with headaches have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6513.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Air Force from September 1989 to October 1998, September 2007 to December 2007, and October 2017 to February 2019 and the United States Air National Guard of Michigan from June 2005 to February 2019.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  Based on the evidence of record, the Board finds that the issues of entitlement to service connection for a left shoulder disability, a left hip disability, and a low back disability were initially raised in a February 2012 by the Veteran as due to an undiagnosed illness.

In February 2012, the Veteran filed a claim for undiagnosed illnesses to include headaches, joint problems, chronic cough and infections.  See 38 C.F.R. § 3.317.  In the May 2013 rating decision, the RO denied service connection for undiagnosed illness, essentially based on a finding that there was no evidence that the Veteran had an undiagnosed illness and noted that all of the Veteran’s conditions had clear diagnoses, including his joint problems.  The RO noted that in June 2012 the Veteran reported experiencing pain all his body, including his left hip, left shoulder, and back; and the RO noted that the Veteran was later diagnosed with left shoulder bursitis, left hip bursitis, and neck pain due to trapezius muscle strain.

In May 2013, the Veteran filed a claim for entitlement to service connection for multiple system skeletal issues due to desert storm.  In April 2014, the RO continued the denial of service connection for an undiagnosed illness, essentially based on a finding that there was no evidence that the Veteran had an undiagnosed illness and noted that all of the Veteran’s illnesses had clear diagnoses.

In June 2018, the Veteran filed a claim for service connection for left hip condition with pain, a left knee condition with pain, a lower back condition with pain and left shoulder condition with pain.  In May 2019, the RO denied service connection for the Veteran’s left shoulder impingement syndrome with rotator cuff tendonitis and bursitis; left hip femoral acetabular impingement syndrome; left knee inflammatory condition with pain and decreased range of motion; and lumbar strain.

Further, at the Board hearing, the Veteran clarified that the disabilities for which he was seeking service connection based on undiagnosed illness were multiple joint pain issues and this decision reflects this clarification and characterization.

The Board notes that an April 2013 VA examination reflects a diagnosis of subacromial bursitis of the left shoulder.  An October 2012 VA treatment record reflects a diagnosis of left hip internal derangement and possible labral tear.  A May 2012 private treatment record reflects a diagnosis of lumbosacral strain.  Therefore, the Board has added the issues to the issues on appeal and characterized the issues as 1) entitlement to service connection for a left shoulder disability, to include joint pain as due to an undiagnosed illness; 2) entitlement to service connection for a left hip disability, to include joint pain as due to an undiagnosed illness; 3) entitlement to service connection for a low back disability, to include joint pain as due to an undiagnosed illness. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 

New and Material

In general, VA rating decisions that are not timely appealed are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.302.  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108.  New evidence is defined as evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  In Shade, the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  The evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant’s claim on any basis.  See Evans v. Brown, 9 Vet. App. 273 (1996).

1. Whether new and material evidence has been received to reopen a claim of service connection for right hand sprain

In March 1999, the RO denied service connection for history of right hand sprain, complaint of a right thumb and middle finger injury, essentially based on a finding that the Veteran did not have a permanent residual or chronic disability which was related to service or service-connected disability.  The Veteran did not appeal this decision and it is final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

In December 2011, the Veteran submitted a claim for entitlement to service connection for tendonitis of the right hand and carpal tunnel of the right hand.  At the time the Veteran submitted additional evidence regarding his claims for entitlement to service connection for tendonitis of the right hand and carpal tunnel of the right hand.  In March 2013, the RO denied service connection for carpal tunnel of the right hand and for right hand sprain essentially based on a finding that the Veteran’s current condition was not related to service or a service-connected disability.

Relevant evidence received since the March 1999 final decision includes service treatment records, private treatment records, VA treatment records, the Veteran’s statements and other lay statements.

The Board notes that although service treatment records were received after the March 1999 final decision, the provisions of 38 C.F.R. § 3.156(c)(1) do not apply, as the service treatment records relate to the Veteran’s service after March 1999.

Since the March 1999 final decision, relevant additional evidence suggests a nexus between currently diagnosed carpometacarpal degenerative joint disease and tenosynovitis of the right hand and degenerative changes of the carpophalangeal joint of the right thumb and military service.  This evidence, evidence not previously submitted to decisionmakers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material.  38 C.F.R. § 3.156(a).  Thus, the claim is reopened.

2. Whether new and material evidence has been received to reopen a claim of service connection for partial blindness of the right eye

In March 1999, the RO denied service connection for decreased visual acuity essentially based on a finding that the Veteran had a preexisting visual acuity problem that existed prior to service and there was no evidence to support a finding that the condition worsened during service.  The Veteran did not appeal this decision and it is final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

In December 2011, the Veteran submitted a claim for entitlement to service connection for a detached retina.  At the time the Veteran submitted additional evidence regarding his claim for entitlement to service connection for a detached retina. See November 2011 VA treatment record.  In March 2013, the RO denied service connection for carpal tunnel of the right hand and for right hand sprain essentially based on a finding that the Veteran’s current condition was not related to service or a service-connected disability.

Relevant evidence received since the March 1999 final decision includes service treatment records, private treatment records, VA treatment records, the Veteran’s statements and other lay statements.

The Board notes that although service treatment records were received after the March 1999 final decision, the provisions of 38 C.F.R. § 3.156(c)(1) do not apply, as the service treatment records relate to the Veteran’s service after March 1999.

Since the March 1999 final decision, relevant additional evidence suggests a nexus between currently diagnosed lattice degenerative bilateral eyes (OU) with very small tear at 10 in the periphery of the right eye (OD) status post laser retinopexy and military service. See December 2011 VA treatment records and STRs.  This evidence, evidence not previously submitted to decisionmakers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material.  38 C.F.R. § 3.156(a).  Thus, the claim is reopened.

As provided further below, additional development of the evidence is required, and the claim for service connection for a right eye disability will therefore be remanded for additional development prior to readjudication.

3. Whether new and material evidence has been received to reopen a claim of service connection for history of ear infection

In March 1999, the RO denied service connection for history of an ear infection essentially based on a finding that the Veteran did not have a permanent residual or chronic disability which was related to service or service-connected disability. The Veteran did not appeal this decision and it is final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

In February 2012, the Veteran submitted a claim for entitlement to service connection for an undiagnosed illness to include infections.  In March 2013, the RO denied service connection for an undiagnosed illness essentially based on a finding that the Veteran did not have any undiagnosed illnesses.

Relevant evidence received since the March 1999 final decision includes service treatment records, private treatment records, VA treatment records, the Veteran’s statements and other lay statements.

The Board notes that although service treatment records were received after the March 1999 final decision, the provisions of 38 C.F.R. § 3.156(c)(1) do not apply, as the service treatment records relate to the Veteran’s service after March 1999.

Since the March 1999 final decision, relevant additional evidence suggests a nexus between ear infections and military service.  See June 2019 Board hearing testimony.  This evidence, evidence not previously submitted to decisionmakers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material.  38 C.F.R. § 3.156(a).  Thus, the claim is reopened.

As provided further below, additional development of the evidence is required, and the claim for service connection for ear infections will therefore be remanded for additional development prior to readjudication.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).

For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree (10 percent disabling) within one year of discharge from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service.  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally a showing of “continuity of symptoms” after service is required for service connection.  38 C.F.R. § 3.303(b).

Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446-449 (1995) (en banc).

4. Entitlement to service connection for a right hand sprain

5. Entitlement to service connection for injuries to fingers of the right hand

6. Entitlement to service connection for carpal tunnel syndrome of the right hand

The Veteran seeks service connection for a right hand sprain, injuries to fingers of the right hand and carpal tunnel syndrome of the right hand which he asserts are related to service.  In June 2019, the Veteran testified that he injured his hand several times on active duty; he broke his thumb, hyper-flexed his wrist, and tore the tendons in his fingers.  The Veteran testified that initially he was diagnosed with carpal tunnel syndrome, but later, his treatment providers said that his hand swelling would cause his symptoms.  He testified that he has continued to experience pain and swelling with his hands.

The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for a right hand sprain and injuries to the right thumb have been met.

The Veteran also filed a claim for entitlement to service connection for carpal tunnel syndrome which he asserted was related to service.  However, the Board notes that in June 2019, the Veteran testified that his right hand disability was initially diagnosed as carpal tunnel syndrome and it was actually swelling of his right hand which caused his symptoms.  Based on a review of the evidence of record, the Board finds that the criteria for service connection for carpal tunnel syndrome have not been met.

Service treatment records reflect treatment of the Veteran’s right hand from at least November 1992.

A November 1992 service treatment record reflects a diagnosis of right hand sprain.  The Veteran reported that he had been having pain in his hand in wrist near the base of his thumb for approximately three days.  The Veteran reported that the only injury in the area occurred approximately two weeks earlier during a basketball game.  The back of his hand was pushed against a wall and his wrist was hyperflexed.

An August 1994 service treatment record reflects a diagnosis of right thumb nondisplaced fracture of distal phalanx.  The Veteran reported that he smashed his right thumb in a car door.

Post-service treatment records reflect that the Veteran complained of right hand pain at the base of his fingers for the past eight months from at least November 1998; a diagnosis of tendinitis of the right hand from at least January 1999.

X-rays revealed degenerative changes of the metacarpophalangeal joint of the right thumb from at least August 2011; and degenerative changes in the radiocarpal joint of the right hand from at least August 2011.

A September 2011 electromyography (EMG) consult report noted that there was no electrodiagnostic evidence of neuropathy of the right upper extremity.

An April 2012 VA treatment record reflects that a consultation was requested for a provisional diagnosis of carpal tunnel syndrome.

A February 1999 VA examination reflects a diagnosis of history of right hand, middle finger and thumb injury as well as wrist injury in the past.  The examiner noted that there was no residual at the present time.  The examiner noted that the Veteran reported that he injured his right middle finger while lifting something while working approximately one year prior and his finger continued to ache.  The examiner did not provide an opinion regarding the etiology of the Veteran’s right hand condition.

The Veteran was afforded a VA examination in April 2013 which reflected a diagnosis of tendinitis of the right hand.  The examiner noted that an EMG was negative for neuropathy or radiculopathy.  The examiner did not provide an opinion regarding the etiology of the Veteran’s tendinitis of the right hand.

An August 2019 private opinion reflects a diagnosis of carpometacarpal degenerative joint disease and tenosynovitis, which caused significant weakness of the right hand.  The examiner noted that the Veteran’s service treatment records document several injuries to his right hand, including his wrist and thumb.  The examiner opined that the Veteran’s right wrist injuries were more likely than not caused by his time in service.

Based on the evidence as outlined above, the Board finds that service connection is not warranted for carpal tunnel syndrome and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for carpometacarpal degenerative joint disease and tenosynovitis of the right hand and degenerative changes of the metacarpophalangeal joint of the right thumb have been met.

Service connection for carpal tunnel syndrome is not warranted, because there is no clear objective evidence that the Veteran has carpal tunnel syndrome.  Service connection cannot be granted if there is no present disability.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306.  See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

As noted, the September 2011 EMG report noted that there was no electrodiagnostic evidence of neuropathy of the right upper extremity.  In addition, the Veteran has testified that he does not have carpal tunnel syndrome, and it is likely that the symptoms of his right hand disability were related to the swelling his right hand instead of actual carpal tunnel syndrome.

Therefore, based on the foregoing, the Board finds that the preponderance of the evidence is against a finding of service connection for carpal tunnel syndrome.  Thus, the claim for service connection for carpal tunnel syndrome is denied.

Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for carpometacarpal degenerative joint disease and tenosynovitis of the right hand and degenerative changes of the metacarpophalangeal joint of the right thumb is warranted.

Service treatment records reflect that the Veteran injured his right wrist/hand from at least November 1992 and injured his right thumb from at least August 1994.

Post-service treatment records reflect a diagnosis of tendinitis of the right hand from at least January 1999 and a diagnosis of degenerative changes in the radiocarpal joint of the right hand and degenerative changes of the metacarpophalangeal joint of the right thumb from at least August 2011.

The August 2019 private opinion establishes that the Veteran’s carpometacarpal degenerative joint disease and tenosynovitis of the right hand and degenerative changes of the metacarpophalangeal joint of the right thumb are related to service.  The August 2019 opinion is competent, credible and probative, and coupled with the other medical evidence of record including the service records, private treatment records, VA treatment records, and lay evidence, supports a conclusion that service connection for carpometacarpal degenerative joint disease and tenosynovitis of the right hand and degenerative changes of the metacarpophalangeal joint of the right thumb is warranted.  There is no contrary medical opinion of record.

Thus, resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that evidence of record supports a finding that service connection for carpometacarpal degenerative joint disease and tenosynovitis and degenerative changes of the metacarpophalangeal joint of the right thumb is warranted.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

7. Entitlement to service connection for a left hip disability, to include joint pain as due to an undiagnosed illness

The Veteran seeks service connection for a left hip disability manifested by joint pain which he asserts is related to service.  In June 2019, the Veteran testified a podiatrist told him that due to the issues with his right foot and ankle, the Veteran was putting a lot of pressure on his hip.

The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for a left hip disability on the basis of secondary service connection to the Veteran’s right ankle disability have been met.

Service treatment records are silent as to any complaints, treatment or clinical diagnosis for a left hip condition.

Post-service treatment records reflect diagnosis of left hip pain from at least August 2011.

The Veteran was afforded a VA examination in June 2018, which reflected a diagnosis of femoral acetabular impingement syndrome including labral tears of the left side.  The examiner noted that the Veteran had a progressive increase in left hip pain due to altered weight bearing from chronic right ankle pain and tendonitis.  The Veteran reported that the pain began in approximately 2010 to 2011 and worsened after his right ankle and heel surgery in 2015.

An August 2019 private opinion reflects a diagnosis of left hip impingement syndrome.  The examiner noted that the Veteran’s occupation in service required constant lifting and a high level of physicality.  Therefore, the examiner opined that based on his extensive injuries incurred during service and the level of physicality of his position that the degenerative changes of his left hip were at least as likely as not caused by his time in the military.

Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for femoral acetabular impingement syndrome including labral tears of the left side on the basis of secondary service connection to the Veteran’s service-connected right ankle disability have been met.  38 C.F.R. § 3.310.

The June 2018 VA examination establishes that the Veteran’s femoral acetabular impingement syndrome including labral tears of the left side is related to service.  The June 2018 examination is competent, credible and probative, and coupled with the other medical evidence of record including the private treatment records, VA treatment records, and lay evidence, supports a conclusion that service connection for femoral acetabular impingement syndrome including labral tears of the left side is warranted.   There is no contrary medical opinion of record.

Thus, resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that evidence of record supports a finding that service connection for femoral acetabular impingement syndrome including labral tears of the left side is warranted.  See 38 U.S.C. § 5107; Gilbert, supra. As the Board finds that the Veteran has a diagnosed disability of the left hip related to service, the Board need not consider the Veteran’s initial claim of left hip joint pain due to undiagnosed illness pursuant to the provisions of 38 C.F.R. § 3.317.

8. Entitlement to service connection for chronic bronchitis

9. Entitlement to service connection for asthma

The Veteran seeks service connection for asthma which he asserts is related to service.  In June 2019, the Veteran testified that he began having breathing issues in Afghanistan, as well as upper respiratory infections.  He testified that he was initially diagnosed with bronchitis and was later diagnosed with asthma.

The Veteran’s former spouse stated that she was married to the Veteran from 1996 to 2010.  She stated that the Veteran was deployed to Afghanistan in 2007 and breathing consisted of violent coughing spells with exacerbated allergic type issues of coughing, sneezing, watery eyes, etc. See April 2013 and August 2019 statements.

The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for asthma have been met.

The Veteran also filed a claim for entitlement to service connection for chronic bronchitis which he asserted was related to service.  However, the Board notes that in June 2019, the Veteran testified that his asthma was misdiagnosed as chronic bronchitis and that he never had chronic bronchitis.  Based on a review of the evidence of record, the Board finds that the criteria for service connection for chronic bronchitis have not been met.

Post deployment records reflect that the Veteran served at Bagram Air Force Base (AFB) in Afghanistan from September 2007 to November 2007.  The Veteran indicated that his health had gotten worsen during deployment, he was seen in sick call four times during the deployment and he had difficulty breathing during deployment.  He also indicated that he was sometimes exposed to smoke from oil fire, he was often exposed to smoke from burning trash or feces, vehicle or truck exhaust fumes, tent heat smoke, industrial pollution, sand and dust.

Post-service treatment records reflect a diagnosis of bronchitis from at least October 2008 and a diagnosis of asthma from at least May 2011.

An October 2008 private treatment record reflects a diagnosis of bronchitis.  The Veteran reported that he still had a cough.

An April 2011 Department of the Army Memorandum regarding an Air Quality Summary on Bagram Air Field (BAF) noted that results of air samples taken over approximately the last eight years indicated that there may have been an increased risk of long term adverse health conditions as a result of the poor air quality on BAF.  The memorandum noted that the long term health risks associated with the air conditions on BAF indicates that there was a potential that long-term exposure may have increased the risk for developing chronic health conditions such as reduced lung function or exacerbated chronic bronchitis, chronic obstructive pulmonary disease (COPD), asthma, atherosclerosis, or other cardiopulmonary disease.  The memorandum noted that this did not mean that service members that served on BAF would acquire adverse long term pulmonary or heart conditions, but that the risk for such was increased.

A June 2012 VA treatment record reflects a diagnosis of asthma.  The treatment provider noted that the methacholine challenge test was positive.  The treatment provider noted that it was unclear what, if any, significant the exposure to the burning pits/oil fields (in the 1990’s) was having at this time; as his symptoms did not start until his return from Afghanistan four years ago.

In November 2012 a line of duty determination examiner noted that the Veteran has had symptoms of shortness of breath, cough and wheezing.  The Veteran underwent a pulmonary function test at the VA in July 2011 and was diagnosed with asthma.  The Veteran reported that his symptoms began four years ago after his deployment to Afghanistan.  The Veteran reported that he had been seen at a clinic in service for the symptoms in service.  The Veteran reported that his 2007 post-deployment health assessments indicate that he was exposed to smoke, vehicle fuel exhaust, sand and dust.  The examiner noted that the Veteran’s yearly history evaluations in 2008, 2009 and 2010 did not relate an history of breathing difficulties.  The examiner noted that the Veteran had a history of allergic rhinitis, sinusitis and eczema which are very closely related with developing asthma, and that it did not necessarily have anything to do with exposure or work conditions.  The examiner noted that asthma was usually an intrinsic condition which was not related to exposure, and if it was related to an exposure then it usually would not develop four years later.

In February 2013 a line of duty determination investigator noted that the Veteran’s medical records from 2008 to 2011 do not mention any breathing difficulties.  The examiner noted that the Veteran’s medical history predating his 2007 Afghanistan deployment reflected a significant history of allergic rhinitis, sinusitis and eczema.  Additionally, the Veteran admitted that he had taken prescription medication and had surgery for those issues predating his 2007 Afghanistan deployment.  The investigator noted that asthma was an intrinsic condition, and it was not related to exposures, such as those claimed by the Veteran.  The investigator opined that the Veteran’s medical issue was an existing condition that predated his 2007 Afghanistan deployment and therefore not line of duty applicable.

The Veteran was afforded a VA examination in April 2013 which reflected a diagnosis of asthma.  The Veteran reported that he had coughing and difficulty breathing in 2008.  The examiner noted that these symptoms were attributed to sinusitis and subsequently in 2012 he was diagnosed with asthma by a positive methacholine challenge test.

An August 2014 Report of Investigation Line of Duty and Misconduct Status (Line of Duty Report) reflects a finding that the Veteran’s asthma was in the line of duty and that the Veteran’s condition existed prior to service and was aggravated in service.

A November 2016 VA treatment record reflects a diagnosis of dyspnea/cough, asthma, and OSA.  The treatment provider opined that the Veteran’s dyspnea/cough was most likely secondary to asthma, uncontrolled.

In June 2017 an investigative officer (IO) noted that the Veteran had been exposed to hazardous materials and aircraft noise while working in the warehouse on active duty for approximately ten years from 1989 to 1999.  The investigator noted that the Veteran’s exposure to environmental factors greatly increased during his 2007 deployment to Afghanistan.  The Veteran also worked as a full time technician in 2006, where he was exposed to fuels, lubricants and jet fuel.  The investigator noted that there was evidence that the Veteran’s asthma symptoms were irritated by environmental factors at his job and during deployment.

The Veteran was afforded a VA examination in June 2018 which reflected a diagnosis of asthma.  The Veteran reported that he had atopic dermatitis and allergic rhinitis and was diagnosed with asthma in 2011.  The Veteran’s symptoms were controlled on current medications.

An October 2018 Medical Board Report reflects a finding that the Veteran’s asthma began in approximately October 2015.  Further it was found that the Veteran’s asthma was incurred in service; did not exist prior to service and was permanently aggravated by service.

An August 2019 private opinion reflects a diagnosis of asthma.  The examiner noted that a review of the Veteran’s records revealed that he had been exposed to burning trash and feces, oil fires, solvents, smoke, sand and dust, and other harmful factors during service.  The Veteran’s records revealed that the Veteran’s health got worse during his deployment, and he suffered from headaches, skin disease or rashes, redness of his eyes, difficulty breathing, diarrhea, and ringing in his ears.  Post-service treatment records from November 2007 to October 2008 reflect that the Veteran was seen for chronic fatigue, bronchitis, shortness of breath, allergic rhinitis and constipation.  Therefore, the examiner opined that it was more likely than not that the Veteran’s asthma was a result of his environmental and occupational exposure during active duty.

Based on the evidence as outlined above, the Board finds that service connection is not warranted for chronic bronchitis and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for asthma have been met.

Service connection for bronchitis is not warranted, because there is no clear objective evidence that the Veteran has chronic bronchitis.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306.  See also Brammer, supra.

Notably, although an October 2008 private treatment record reflects a diagnosis of bronchitis, no other treatment records prior to or since October 2008 reflect a diagnosis of bronchitis.  In addition, the Veteran has testified that he does not have chronic bronchitis, and it is likely that he had been misdiagnosed with bronchitis instead of asthma.

Therefore, the based on the foregoing, the Board finds that the preponderance of the evidence is against a finding of service connection for bronchitis.  Thus, the claim for service connection for bronchitis is denied.

Based on a preponderance of the evidence, service connection for asthma is warranted.

The Veteran is currently service connected for chronic sinusitis.

The Veteran served at Bagram Air Force Base (AFB) in Afghanistan from September 2007 to November 2007.  The Veteran’s 2007 post deployment records reflect that the Veteran reported that he had difficulty breathing during deployment and had been exposed to various pollutants during service.  The April 2011 Department of the Army Memorandum establishes that the Veteran was likely exposed to pollutants during his service in Afghanistan.

Post-service treatment records reflect that the Veteran was treated for coughing from at least October 2008, less than one year after his return from Afghanistan.

As previously noted, there are several line of duty determinations in service which provided conflicting opinions.  The November 2012 and February 2013 line of duty determinations concluded that asthma was not related to service, while the August 2014 Line of Duty report and the October 2018 Medical Board report found that the Veteran’s asthma was related to service in Afghanistan.

The August 2019 private opinion establishes that the Veteran’s asthma is related to service.  The August 2019 opinion is competent, credible and probative, and coupled with the other medical evidence of record including the private treatment records, VA treatment records, and lay evidence, supports a conclusion that service connection for asthma is warranted.

Notably, despite the findings of the November 2012 line of duty determination examiner and the February 2013 line of duty determination investigator, the August 2014 Line of Duty Report and the October 2018 Medical Board Report found that the Veteran’s asthma was in the line of duty and was aggravated by his service in Afghanistan.

Thus, resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that evidence of record supports a finding that service connection for asthma is warranted.  See 38 U.S.C. § 5107; Gilbert, supra.

10. Entitlement to service connection for sleep apnea

The Veteran seeks service connection for sleep apnea which he asserts is related to service.  In June 2019, the Veteran testified that he developed breathing issues during his deployment to Afghanistan.

In September 2012, the Veteran reported that his sleep apnea was a preexisting condition that was secondarily exacerbated by deployment.

The Veteran’s former spouse has stated that she was married to the Veteran from 1996 to 2010.  She stated that during their marriage, she noted that the Veteran would wake up out of a sound sleep with a violent choking and coughing fit and gasping for air; and his snoring worsened.  The Veteran was deployed to Afghanistan in 2007 and his sleep behavior and breathing consisted of violent coughing spells accompanied with exacerbated allergic type issues of coughing, sneezing, watery eyes, etc. She stated that his snoring seemed to have gotten worse after his return from Afghanistan.

The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for sleep apnea on the basis of secondary service connection to the Veteran’s now service-connected asthma have been met.

Service treatment records prior to from September 1989 to October 1998 are silent as to any complaints, treatment or clinical diagnosis for obstructive sleep apnea.

A May 2003 private treatment record reflects that the Veteran reported that he had fragmented sleep and he snored.  The treatment provider recommended that the Veteran undergo a sleep study.

As noted, post deployment records reflect that the Veteran served at Bagram Air Force Base (AFB) in Afghanistan from September 2007 to November 2007.  The Veteran indicated that his health had gotten worsen during deployment, he was seen to sick call four times during the deployment and he had difficulty breathing during deployment.  He also indicated that he was sometimes exposed to smoke from oil fires, he was often exposed to smoke from burning trash or feces, vehicle or truck exhaust fumes, tent heat smoke, industrial pollution, sand and dust.

Post-service treatment records reflect a diagnosis of obstructive sleep apnea from at least November 2011.

A June 2017 Investigative Officer (IO) Summary reflects that the Veteran was diagnosed with sleep apnea in October 2011.  The Veteran reported that his sleep apnea was caused during his service in Afghanistan in 2007.  The investigator opined that the Veteran’s sleep apnea was a chronic respiratory disease which existed prior to his deployment to Afghanistan.  The investigator noted that the Veteran had been exposed to hazardous materials and aircraft noise while working in the warehouse on active duty for approximately ten years from 1989 to 1999.  The investigator noted that the Veteran’s exposure to environmental factors greatly increased during his 2007 deployment to Afghanistan.  The Veteran also worked as a full time technician in 2006, where he was exposed to fuels, lubricants and jet fuel.  The investigator noted that there was evidence that the Veteran’s asthma symptoms were irritated by environmental factors at his job and during deployment.  The examiner noted that a Journal of Clinical Sleep Medicine article stated that asthma patients were more likely to develop obstructive sleep apnea syndrome.  Therefore, based on research, the examiner opined that the Veteran’s sleep apnea symptoms were most likely exacerbated at his job and during deployment to Afghanistan.

An August 2019 private opinion reflects a diagnosis of obstructive sleep apnea.  The examiner noted that a review of the Veteran’s records revealed that he had been exposed to burning trash and feces, oil fires, solvents, smoke, sand and dust, and other harmful factors during service.  The Veteran’s records revealed that the Veteran’s health worsened during his deployment, and he suffered from headaches, skin disease or rashes, redness of his eyes, difficulty breathing, diarrhea, and ringing in his ears.  The examiner noted that post-service treatment records from November 2007 to October 2008 reflected that the Veteran was seen for chronic fatigue, bronchitis, shortness of breath, allergic rhinitis and constipation.  Therefore, the examiner opined that it was more likely than not that the Veteran’s obstructive sleep apnea was a result of his environmental and occupational exposure during active duty.

Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for obstructive sleep apnea have been met.

The June 2017 IO Summary establishes that the Veteran’s obstructive sleep apnea is related to service.  The June 2017 examiner’s opinion that the Veteran’s obstructive sleep apnea existed prior to the Veteran’s deployment to Afghanistan; that during his service in Afghanistan, the Veteran was exposed to environmental factors which irritated the Veteran’s asthma, which exacerbated the Veteran’s obstructive sleep apnea, supports a finding that service connection for obstructive sleep apnea is warranted.

The June 2017 opinion is competent, credible and probative, and coupled with the other medical evidence of record including the private treatment records, VA treatment records, and lay evidence, supports a conclusion that service connection for obstructive sleep apnea on the basis of secondary service connection to the Veteran’s now service-connected asthma is warranted.

Thus, resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that evidence of record supports a finding that service connection for obstructive sleep apnea is warranted.  See 38 U.S.C. § 5107; Gilbert, supra.

Increased Rating

Disability ratings are based on the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.

Although the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1.  The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

11. Entitlement to a rating in excess of 10 percent for chronic sinusitis with headaches

The Veteran seeks a rating in excess of 10 percent for his service-connected chronic sinusitis with headaches.

The Veteran’s sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6513.  Pursuant to the General Rating Formula for Sinusitis, Diagnostic Codes 6510 through 6514, a 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis 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.  38 C.F.R. § 4.97.  A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis 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 affected sinus, and purulent discharge or crusting after repeated surgeries.  An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.  See 38 C.F.R. § 4.97, Note following Diagnostic Code 6514.

The Board has carefully reviewed the evidence of record and finds the evidence in this case does not warrant a rating in excess of 10 percent throughout the period on appeal.

At the outset, the Board notes that the Veteran’s VA treatment records are consistent with the Veteran’s VA examinations.

The Veteran was afforded an examination in April 2013, which reflected a diagnosis of chronic sinusitis and allergic rhinitis.  The examiner noted that the Veteran did not have any findings, signs, or symptoms attributable to chronic sinusitis.  The Veteran was also afforded a VA examination in November 2014, which reflected a diagnosis of chronic sinusitis by history.  The examiner noted that the Veteran did not have sinusitis on the most current CT scan.  The examiner noted that the Veteran did not have any findings, signs, or symptoms attributable to chronic sinusitis.

The April 2013 and November 2014 examiners noted that the Veteran did not have any non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting or incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months.

In April 2013 the Veteran reported that he was treated for an ear infection in May 2012 for a possible upper respiratory infection (URI).  The examiner noted that the Veteran was on a nasal spray and treatment records did not document any antibiotic treatment for sinusitis in the past 12 months.  In November 2014 the Veteran reported that he underwent an antibiotic course eight months ago by his private physician.

Based on the evidence as outlined above, the Board finds that the symptoms associated with the Veteran’s sinusitis do not meet the criteria for a rating in excess of 10 percent at any period of this appeal.  The evidence does not reflect that the Veteran had three or more incapacitating episodes per year of sinusitis 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, the requirement for a 30 percent rating.  Although, the Veteran has reported that he had been treated for an ear infection and possibly an URI in April 2012 and underwent an antibiotic treatment in approximately March 2014, the Veteran’s treatment records do not reflect that the Veteran had more than six non-incapacitating episodes per year of sinusitis.   The evidence also does not reflect that the Veteran had radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, the requirement for a 50 percent rating.

Therefore, the Board finds that the criteria for a rating in excess of 10 percent for sinusitis were not met at any period of this appeal.  In reaching this determination, 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 the instant appeal.  See 38 U.S.C. § 5107(b); Gilbert, supra.

REASONS FOR REMAND

VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claims.  38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  The requirement that the evidence “indicates” that the Veteran’s disability “may” be associated with his service is a low threshold.  Id.

The Board notes that the claims for entitlement to service connection for a low back disability; bilateral plantar fasciitis/flat feet; detached retina of the right eye, partial blindness of the right eye; a deviated septum status post septoplasty; residuals of nasal polyps status post septoplasty were last adjudicated in a July 2016 statement of the case.  Since then additional relevant evidence has been added to the Veteran’s claims file, which has not been considered by the AOJ.  Nonetheless, for the reasons set forth below, the Board finds that remand is necessary to afford the Veteran with VA examinations to determine the nature and etiology of the Veteran’s claimed conditions.

1. Entitlement to service connection for a left shoulder disability, to include joint pain as due to an undiagnosed illness.

The Veteran seeks service connection for a left shoulder disability which he asserts is related to service.  In June 2019, the Veteran testified that during service he did a lot of heavy lifting of equipment and bags; loading and offloading aircraft; and picking up and delivering supplies and equipment to various locations, which caused some issues with his left shoulder.

Post-service treatment records reflect treatment for a left shoulder condition from at least August 2011.

The Veteran was afforded a VA examination in April 2013, which reflected a diagnosis of subacromial bursitis of the left shoulder.  The Veteran was afforded a VA examination in June 2018 which reflected a diagnosis of left shoulder impingement syndrome.  Neither examiner provided an opinion regarding the etiology of the Veteran’s left shoulder condition.

An August 2019 private opinion noted that the Veteran was a supply sergeant during active duty, which required constant lifting and a high level of physicality.  The examiner noted that a September 2012 treatment record reflected a diagnosis of left shoulder bursitis with impingement and the Veteran underwent arthroscopic surgery of his left shoulder in January 2017.  Therefore, the examiner opined that based on his extensive injuries incurred during service and the level of physicality of his position that the degenerative changes of his left shoulder were at least as likely as not caused by his time in the military.  The examiner did not discuss the November 2001 private treatment record which reflects that the Veteran was in a motor vehicle accident.  Additionally, the private examiner generically stated that the Veteran had extensive injuries which were incurred in service; however, the examiner did not discuss any specific injuries that the Veteran may have incurred in service which were related to his left shoulder disability, which renders the opinion inadequate.

Therefore, in light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s left shoulder disability, to include whether the Veteran’s left shoulder disability is related to service.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra.

2. Entitlement to service connection for a low back disability, to include joint pain as due to an undiagnosed illness, is remanded.

The Veteran seeks service connection for a low back disability which he asserts is related to service.  In February 2012, the Veteran claimed that he had joint problems due to an undiagnosed illness.  In June 2019, the Veteran testified that he did a lot of heavy lifting of equipment and bags; loading and offloading aircraft; and picking up and delivering supplies and equipment to various locations, which caused some issues with his back.  The Veteran also testified that his low back disability and was related to his right ankle disability.

The Veteran was afforded a VA examination in June 2018, which reflected a diagnosis of lumbosacral (LS) strain from at least May 2012.  The examiner noted that the Veteran reported that he had low back pain for ten years with intermittent radiation to the left lower extremity.  The examiner noted that a VA treatment record indicated that the Veteran was in a motor vehicle accident in 2009.  The examiner did not provide an opinion regarding the etiology of the Veteran’s low back disability.

An August 2019 private opinion reflects a diagnosis of mild degenerative disc disease and chronic back pain.  The examiner noted that the Veteran reported that he was a supply sergeant during active duty, which required constant lifting and a high level of physicality.  The examiner opined that based on the Veteran’s extensive injuries incurred during service and the level of physicality of his position, that his chronic back pain was at least as likely as not caused by his time in the military.  The examiner did not discuss the November 2001 private treatment record which reflects that the Veteran was in a motor vehicle accident and complained of back problems.  Additionally, the private examiner generically stated that the Veteran had extensive injuries which were incurred in service; however, the examiner did not discuss any specific injuries that the Veteran may have incurred in service which were related to his low back disability, which renders the opinion inadequate.

Thus, in light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s low back disability, to include whether the Veteran’s low back disability is related to service or to a service-connected disability, to include his right ankle disability.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra.

3. Entitlement to service connection for bilateral plantar fasciitis/flat feet is remanded.

The Veteran seeks service connection for a bilateral foot disability which he asserts is related to service.  In June 2019, the Veteran testified that his bilateral foot disability was related to his right ankle disability.  He also testified his job duties during service worsened his foot condition.

An August 1988 Report of Medical Examination for enlistment reflects that the Veteran had mild to moderate asymptomatic pes planus.

A June 2004 private treatment record reflects a diagnosis of acute bursitis of the bilateral heels with plantar fasciitis; rule out (r/o) possibility of tarsal tunnel syndrome; pes plano valgus deformity; foot pain; excessive pronation and mechanical dysfunction; and tenosynovitis of extensor halluces longus tendons.

The Veteran was afforded VA examinations in April 2013 and June 2018 both of which reflect a diagnosis of bilateral pes planus.  The examiner noted that it was mild and asymptomatic upon enlistment and was currently more pronounced.  The examiner did not provide an opinion regarding the etiology of the Veteran’s pes planus.

In August 2019 a private examiner opined that the Veteran’s bilateral pes planus was aggravated beyond the normal progression of the condition by his time in service ultimately causing his bilateral plantar fasciitis.  The examiner did not discuss whether the Veteran’s bilateral pes planus was congenital disease or a congenital defect; and if the Veteran’s bilateral pes planus was a congenital defect, whether it was subject to any superimposed disease or injury during service that resulted in additional disability of the feet.

In light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s bilateral pes planus and bilateral plantar fasciitis, to include whether the Veteran’s bilateral pes planus and/or bilateral plantar fasciitis is related to service or to a service connected disability, to include his right ankle disability.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra.

4. Entitlement to service connection for detached retina of the right eye is remanded.

5. Entitlement to service connection for partial blindness of the right eye is remanded.

The Veteran seeks service connection for a detached retina of the right eye and partial blindness, which he asserts is related to service.  In June 2019, the Veteran testified that he began having floaters, flashes and other issues with his eyes during service from the early 90s.  He testified that in approximately 1999 he was later diagnosed with glaucoma suspect after separation from service.  When he returned to service and went to Afghanistan, he began having more severe floaters, flashes and other issues with his eyes.  He later underwent eye surgery in approximately 2012.

The Veteran has been afforded a VA examination.  However, no VA examiner has opined regarding the etiology of the Veteran’s right eye disabilities.

The claim was last adjudicated in a July 2016 statement of the case, which denied service connection for detached retina with partial blindness of the right eye.  In August 2019 a private examiner noted that a June 2008 treatment note reflects that the Veteran was diagnosed with operculated retinal holes and lattice degeneration.  A supplemental statement of the case has not been issued.  Nonetheless, in light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s detached retina of the right eye, to include whether the Veteran’s detached retina of the right eye is related to service.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra.

6. Entitlement to service connection for ear infections, to include as due to an undiagnosed illness, is remanded.

The Veteran seeks service connection for ear infections, which he asserts are related to service or to his service-connected chronic sinusitis.  In December 2009 the Veteran reported that when his sinuses bother him, he would get ear infections.

Treatment records reflect that the Veteran was treated for ear pain and/or infections in May 1993, November 1995, October 2005, February 2007, December 2009, December 2011, May 2012, and in approximately October 2016.  Physical examination of the ear in June 2018 revealed the left ear external canal was erythematous and edematous.

Thus, in light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s ear infections, to include whether the Veteran’s ear infections are related to service or to his service-connected chronic sinusitis.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra.

7. Entitlement to service connection for residuals of a deviated septum, status post septoplasty is remanded.

8. Entitlement to service connection for residuals of nasal polyps, status post polypectomy is remanded.

The Veteran seeks service connection for a deviated septum and nasal polyps which he asserts is related to service or service connected disabilities, to include chronic sinusitis.  In June 2019, the Veteran testified that he had migraine headaches which kept interfering with his life after he left active duty in 1998.  The Veteran reported that it was discovered that he had nasal polyps, a deviated septum, migraines and sinus headaches.  The Veteran underwent a surgical procedure for the nasal polyps and the deviated septum, which helped his sinus headaches.

A February 2003 CT scan of the sinus revealed a 1.5 cm retention cyst or polyp in the floor of the right maxillary sinus.

An August 2003 treatment record reflects a diagnosis of deviated nasal septum.  The Veteran underwent a septoplasty.

The Veteran afforded a VA examination in April 2013 which reflected a diagnosis of chronic sinusitis and allergic rhinitis.  Physical examination revealed that the Veteran had no nasal polyps.

The Veteran was afforded a VA examination in November 2014 which reflected a diagnosis of chronic sinusitis by history.  The examiner noted that the Veteran did not have any scars related to the 2003 septoplasty.

An August 2019 private examiner noted that the Veteran had a history of nasal polyps and underwent a nasal polypectomy in 2000 and a septoplasty in September 2003 for a deviated septum.  The examiner opined that the Veteran’s nasal polyps were more likely than not caused by the Veteran’s chronic sinusitis with headaches.  The examiner did not discuss whether the Veteran currently had nasal polyps or any residuals related to the surgical procedures.

Therefore, the Board finds that an examination is warranted to determine the nature and etiology of the Veteran’s deviated septum status post septoplasty and nasal polyps status post polypectomy.

9. Entitlement to service connection for acid reflux is remanded.

The Veteran seeks service connection for acid reflux, which he asserts is related to service or to his service-connected PTSD.

Thus, in light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s GERD, to include whether the Veteran’s GERD is related to service or to his service-connected disabilities, to include PTSD.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra.

10. Entitlement to a rating in excess of 10 percent for residuals of tinea versicolor of the posterior neck and anterior axilla to include pseudofolliculitis barbae is remanded.

The Veteran seeks a rating in excess of 10 percent for his service connected tinea versicolor and pseudofolliculitis barbae.

The Veteran was most recently afforded a VA examination in June 2018, which reflected a diagnosis of atopic dermatitis, pseudofolliculitis barbae and tinea versicolor.  Although the Veteran reported that he had flares of eczema/atopic dermatitis of the neck and shoulder, the examiner did not provide an assessment of the percent of the entire body areas affected and the percent of exposed body areas affected during such flare-ups.

In Ardison v. Brown, 6 Vet. App. 405 (1994), the United States Court of Appeals for Veterans Claims held that VA was obligated to evaluate tinea pedis, a skin condition, while in an “active stage” of the disease in order to fulfill the duty to assist.  In this case, since the Veteran has reported mild flares one to two times per month, an attempt to evaluate the Veteran during a period of flare-ups should be made.  Further, if the Veteran’s flare-up periods are short in duration, the examiner should still attempt to provide an assessment of the percent of the entire body areas affected and percent of exposed body areas affected by the Veteran’s eczema/atopic dermatitis, based upon the Veteran’s reports.

The Board finds a new VA examination is warranted to determine the current severity of the Veteran’s tinea versicolor of the posterior neck and anterior axilla to include pseudofolliculitis barbae.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s left shoulder disability.  All necessary tests should be conducted.  The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination.

The examiner should address the following:

(a.) whether a left shoulder disability clearly and unmistakably (obvious, manifest, undebatable) existed prior to the Veteran’s periods of active service from September 1989, June 2005, September 2007 and/or October 2017.

(b.) If the examiner determines that there is clear and unmistakable evidence that the Veteran’s left shoulder disability preexisted active duty service, is there clear and unmistakable evidence that the preexisting left shoulder disability was NOT aggravated in service beyond the natural progression of such disorder during such service.

(c.) If there is no clear and unmistakable evidence that the Veteran had a left shoulder disability that preexisted active duty service and was not aggravated in active duty service, then opine as to whether it is at least as likely as not (50 percent or greater likelihood) that a left shoulder disability manifested during active duty service, that arthritis was manifest to a compensable degree within one year of active duty service, or that it is otherwise causally or etiologically related to a period of active duty service.

The examiner should consider and discuss the following:

(d.) the November 2001 private treatment record which reflects that the Veteran was in a motor vehicle accident and hit his head;

(e.) the August 2019 private opinion.

In rendering the opinions, the examiner should consider the Veteran’s statements regarding the symptoms of his left shoulder disability to be competent.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s low back disability.  All necessary tests should be conducted.  The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination.

The examiner should address the following:

(a.) whether a low back disability clearly and unmistakably (obvious, manifest, undebatable) existed prior to the Veteran’s periods of active service from September 1989, June 2005, September 2007 and/or October 2017.

(b.) If the examiner determines that there is clear and unmistakable evidence that the Veteran’s low back disability preexisted active duty service, is there clear and unmistakable evidence that the preexisting low back disability was NOT aggravated in service beyond the natural progression of such disorder during such service.

(c.) If there is no clear and unmistakable evidence that the Veteran had a low back disability that preexisted active duty service and was not aggravated in active duty service, then opine as to whether it is at least as likely as not (50 percent or greater likelihood) that a low back disability manifested during active duty service, that arthritis was manifest to a compensable degree within one year of active duty service, or that it is otherwise causally or etiologically related to a period of active duty service.

(d.) If there is no clear and unmistakable evidence that the Veteran had a low back disability that preexisted active duty service and was not aggravated in such service, then opine as to the following:

1.	whether it is at least as likely as not (50 percent or greater likelihood) that a low back disability is proximately due to a service-connected disability to include a right ankle disability;

2.	whether it is at least as likely as not (50 percent or greater likelihood) that a low back disability is aggravated (worsened beyond the natural progression of the disorder) by a service-connected disability to include a right ankle disability.

The examiner should consider and discuss the following:

(a.) the November 2001 private treatment record which reflects that the Veteran complained of back problems;

(b.) the August 2019 private opinion.

In rendering the opinions, the examiner should consider the Veteran’s statements regarding the symptoms of his low back disability to be competent.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s bilateral pes planus and bilateral plantar fasciitis.  All necessary tests should be conducted.  The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination.

In regards to the Veteran’s bilateral pes planus, the examiner should address:

(a.) whether the Veteran’s bilateral pes planus noted in service is congenital or acquired in nature.

(b.) If the Veteran’s bilateral pes planus is congenital, the examiner must discuss whether the condition is a disease, as opposed to a defect.

(c.) If the Veteran’s pes planus is acquired in nature or a congenital disease, the examiner should address whether it at least as likely as not (50 percent or greater likelihood) that the Veteran’s pes planus increased in severity in service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress.

(d.) If the Veteran’s pes planus is more properly characterized as a congenital defect, the examiner should address whether it was at least as likely as not (50 percent or greater likelihood) subject to any superimposed disease or injury during active service that resulted in additional disability of the feet.

In regards to the Veteran’s bilateral plantar fasciitis, the examiner should address:

(a.) whether it is at least as likely as not (50 percent or greater likelihood) that bilateral plantar fasciitis manifested during, is otherwise causally or etiologically related to a period of active duty service;

(b.) whether it is at least as likely as not (50 percent or greater likelihood) that plantar fasciitis is proximately due to a service-connected disability to include a right ankle disability.

(c.) whether it is at least as likely as not (50 percent or greater likelihood) that plantar fasciitis is aggravated (worsened beyond the natural progression of the disorder) by a service-connected disability to include a right ankle disability.

The examiner should consider and discuss the following:

(a.) the August 1988 Report of Medical Examination for enlistment which reflects that the Veteran had bilateral mild to moderate asymptomatic pes planus;

(b.) the June 2004 private treatment record which reflects a diagnosis of acute bursitis of the right and left heels, with the left heel greater than right heel with plantar fasciitis; rule out (R/O) possibility of tarsal tunnel syndrome; pes plano valgus deformity; foot pain secondary to diagnosis; excessive pronation, mechanical dysfunction contributing to pain; and tenosynovitis of extensor halluces longus tendons.

(c.) the August 2019 private opinion.

In rendering the opinions, the examiner should consider the Veteran’s statements regarding the symptoms of his bilateral foot disability to be competent.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

4. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s detached retina of the right eye and partial blindness.  All necessary tests should be conducted.  The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination.

The examiner should address the following:

(a.) whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran’s refractive error of the eyes were subject to any superimposed disease or injury during active service that resulted in additional disability of the eyes;

(b.) whether it is at least as likely as not (50 percent or greater likelihood) that detached retina of the right eye manifested during, is otherwise causally or etiologically related to a period of active duty service.

The examiner should consider and discuss the following:

(c.) the December 2007 service treatment record which reflects diagnoses of operculated retinal holes of the right eye (OD), lattice degeneration of the right eye (OD);

(d.) the January 2008 VA treatment record which reflects diagnoses of operculated retinal holes of the right eye (OD), lattice degeneration of the right eye (OD);

(e.) the May 2010 VA treatment record which reflects a diagnosis of lattice degeneration of both eyes (OU) with operculated holes within the lattice of retinal tear/detachment (RD) dark-without-pressure (DWP);

(f.) the October 2011 VA treatment record which reflects that the Veteran reported that his floaters were increasing;

(g.) the treatment records which reflects that the Veteran underwent a laser retinopexy in November 2011;

In rendering the opinions, the examiner should consider the Veteran’s statements regarding the symptoms of his right eye disability to be competent.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

5. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s ear infections.  All necessary tests should be conducted.  The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination.

The examiner should address the following:

(a.) whether it is at least as likely as not (50 percent or greater likelihood) that ear infections manifested during, is otherwise causally or etiologically related to a period of active duty service;

(b.) whether it is at least as likely as not (50 percent or greater likelihood) that ear infections are proximately due to a service-connected disability to include chronic sinusitis;

(c.) whether it is at least as likely as not (50 percent or greater likelihood) that ear infections are aggravated (worsened beyond the natural progression of the disorder) by a service-connected disability to include chronic sinusitis.

In rendering the opinions, the examiner should consider the Veteran’s statements regarding the symptoms of his ear infections to be competent.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

6. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s nasal polyps, status post polypectomy and deviated septum, status post septoplasty.  All necessary tests should be conducted.  The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination.

The examiner should address whether the Veteran has any residuals from nasal polyps, status post polypectomy (nasal polyps residuals) and/or deviated septum, status post septoplasty (deviated septum residuals).

If the Veteran does have nasal polyps residuals and/or deviated septum residuals then the examiner should address the following:

(a.) whether it is at least as likely as not (50 percent or greater likelihood) that nasal polyps residuals and/or deviated septum residuals are causally or etiologically related to a period of active duty service;

(b.) whether it is at least as likely as not (50 percent or greater likelihood) that nasal polyps residuals and/or deviated septum residuals are proximately due to a service-connected disability to include chronic sinusitis;

(c.) whether it is at least as likely as not (50 percent or greater likelihood) that nasal polyps residuals and/or deviated septum residuals are aggravated (worsened beyond the natural progression of the disorder) by a service-connected disability to include chronic sinusitis.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

7. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s acid reflux or GERD.  All necessary tests should be conducted.  The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination.

The examiner should address the following:

(a.) whether it is at least as likely as not (50 percent or greater likelihood) that GERD manifested during, is otherwise causally or etiologically related to a period of active duty service;

(b.) whether it is at least as likely as not (50 percent or greater likelihood) that GERD is proximately due to a service-connected disability to include PTSD.

(c.) whether it is at least as likely as not (50 percent or greater likelihood) that GERD is aggravated (worsened beyond the natural progression of the disorder) by a service-connected disability to include PTSD.

In rendering the opinions, the examiner should consider the Veteran’s statements regarding the symptoms of his GERD to be competent.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

8. Schedule the Veteran for a VA examination to ascertain the current severity of the Veteran’s residuals of tinea versicolor of the posterior neck and anterior axilla to include pseudofolliculitis barbae.  All necessary tests should be conducted.  The claims file should be made available to and be reviewed by the examiner in conjunction with the examination.

The examination should also include any necessary diagnostic testing or evaluation and all clinical findings should be reported in detail, including specifically the size and location of any affected areas, identification and description of any related scarring, the types of therapy and treatment required, and any functional impairment caused.

The examiner should attempt to evaluate the Veteran during an active phase of his eczema/atopic dermatitis.  If the Veteran’s flare-up periods are short in duration, the examiner should still attempt to provide an assessment of the percent of the entire body areas affected and percent of exposed body areas affected by the Veteran’s eczema/atopic dermatitis, based upon the Veteran’s reports.

If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Johnson, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.