Citation Nr: 19157427 Decision Date: 07/24/19 Archive Date: 07/24/19 DOCKET NO. 18-22 170 DATE: July 24, 2019 ORDER The Board’s July 3, 2019, decision is vacated. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a back disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for rhinitis is denied. Entitlement to service connection for diabetes mellitus type II (DM) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a psychiatric disability, to include as secondary to a service-connected back disability, is remanded. FINDINGS OF FACT 1. On July 3, 2019, the Board issued a decision addressing the issues on appeal. 2. After promulgation of the July 3, 2019, decision, the Board became aware that the Veteran’s representative had submitted additional evidence in support of the Veteran’s claims. 3. In an unappealed May 2011 rating decision, the Veteran was denied entitlement to service connection for a back disability. 4. The evidence received since the May 2011 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim of entitlement to service connection for a back disability. 5. The Veteran’s back disability is etiologically related to an in-service injury. 6. Rhinitis did not have its onset during the Veteran’s active service and is not otherwise etiologically related to such service. 7. DM did not have its onset during the Veteran’s active service and is not otherwise etiologically related to such service, and DM was not present to a compensable degree within a year of the Veteran’s separation from active service. CONCLUSIONS OF LAW 1. The criteria for vacating the Board’s July 3, 2019 decision have been met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2018). 2. New and material evidence has been received and the claim of entitlement to service connection for a back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). 4. The criteria for service connection for rhinitis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). 5. The criteria for service connection for DM have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military and naval service from November 1984 to April 1985 and August 1986 to May 1988, including active duty for training and service in the Army and Naval Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2014 and June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Motion to Vacate The Board may vacate an appellate decision when the appellant is denied due process of law. 38 C.F.R. § 20.904(a). On June 26, 2019, the Veteran’s representative submitted additional evidence in support of the Veteran’s claims. On July 3, 2019, the Board issued a decision in the instant appeal before it had an opportunity to review the outstanding evidence. Therefore, on its own motion, the Board vacates its July 3, 2019 decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. Claim to Reopen – Service Connection for a Back Disability In a May 2011 rating decision, the RO denied entitlement to service connection for degenerative disc disease, lumbar spine (claimed as low back pain probably disc disease, lower back). The RO found that there was no medical evidence of record that the Veteran’s back disability was related to service. The Veteran did not appeal that decision. The evidence that has been received since the May 2011 rating decision includes a June 2019 private independent medical opinion finding that the Veteran’s back disability was related to his active service; post-service VA treatment records; a February 2018 formal finding that no treatment records exist from May 1, 1988, to February 7, 2017, at the West Los Angeles VA Medical Center (VAMC); and the Veteran’s lay statements. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. Therefore, reopening of the claim is warranted. 3. Service Connection – Back Disability The Veteran has contended that his back disability is related to his active service. Specifically, the Veteran reported that he injured his back during service and he recalled that he was treated for a back disability immediately following his separation from service. Service treatment records (STRs) confirm that the Veteran complained of low back pain in March 1988 after lifting and carrying a P250 water pump up a ladder during rough seas. Additionally, he reported numbness in his feet, sharp shooting pain in his left leg, an inability to stand up, and pain with walking. He was diagnosed with lumbar strain. At his April 1988 separation examination, the Veteran reported that he was taking Motrin and Parafon Forte. Post-service private medical records documented that the Veteran hurt his low back playing paintball and exacerbated his injury after loading concrete in 1988. In May 1994, VA X-ray findings revealed that the Veteran had minimal degenerative changes in his lumbar spine. The Board finds that a diligent effort was made to acquire VA treatment records from the West Los Angeles VAMC for the period of May 1, 1988, to February 7, 2017; and that any further efforts to locate those records would be futile. In August 1988, the Veteran was afforded a VA examination. He reported low back pain accompanied by immobility, numbness, shooting pain, and tingling in his in right leg, left leg, and/or left foot. The examiner diagnosed low back pain but did not provide a nexus opinion. The Veteran was provided an additional VA examination in November 2010. X-ray findings revealed degenerative joint disease (DJD) of the facet joints. The examiner diagnosed degenerative disc disease (DDD) of the lumbar spine. Additionally, the examiner opined that the Veteran’s back disability was less as likely as not caused by or a result of the Veteran’s active service. In support of the opinion, the examiner observed that the Veteran’s separation examination did not document a low back issue which suggested that the Veteran’s in-service lumbar muscular symptoms were relieved. The examiner added that the Veteran’s STRs documented that he was overweight. Further, the examiner stated that the Veteran remained deconditioned and obese. The examiner found that the Veteran had a manual labor work history following his separation. The examiner stated that the Veteran claimed random events of low back pain leading up to his lumbar spinal fusion surgery for radicular symptoms in 1998 and that there were no other injuries. In June 2019, the Veteran obtained a private medical opinion. The physician opined that the Veteran’s back disability as likely as not began with the March 1988 in-service injury and progressively worsened until severe enough to require additional treatment. In support of that opinion, the physician stated that the in-service diagnosis of lumbar strain was highly suspect because the Veteran’s radicular symptoms suggested nerve root or disc involvement, not simply muscle strain. Further, the physician determined that the neurological symptoms documented in March 1988 were early signs of disc bulging/herniation. He noted that disc bulging and subsequent herniation were most commonly a gradual process stemming from initial weakness in the disc wall due to a combination of factors of injury, heredity, and most likely nutrition. He explained that often an initial injury caused small tears in the fibrous wall of a disc and created a weakness that at later times reveals itself in more severe symptoms, often after a lesser injury than the initial injury. Additionally, he cited studies and his own medical case examples that showed that bulging or herniated discs could continue asymptomatic for years. He stated that degenerative spinal changes (DDD and DJD) were gradually progressive diseases, and symptomatology was often delayed until there are marked changes. Moreover, he noted that sometimes that degenerative changes were accelerated due to heavy occupational demands. The Board finds that the November 2010 VA medical opinion is inadequate for adjudication purposes as the examiner did not address the Veteran’s report that he was taking Motrin and Parafon Forte upon his separation from service. As the opinion is not adequate, it has been assigned limited probative value and cannot serve as the basis of a denial of entitlement to service connection. On the other hand, the Board assigns greater probative value to the June 2019 private medical opinion which supports that the Veteran’s symptoms were present upon and immediately after his separation from service. Further, the June 2019 private medical opinion was based on the Veteran’s pertinent medical records, review of medical literature, and the private physician’s own training, knowledge, and expertise. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Service Connection – Rhinitis The Veteran has asserted that his rhinitis is related to his active service. STRs document that the Veteran was treated for multiple upper respiratory infections (URI) as well as acute sinusitis in March 1987. At his August 1985 naval enlistment examination, the Veteran denied any allergies, shortness of breath, and asthma. Although the Veteran reported that he had chronic or frequent colds and ear, nose, or throat (ENT) trouble at his April 1988 naval separation examination; they were not considered disabling. A review of post-service VA treatment records show that the Veteran was diagnosed with rhinitis in October 2010. A VA physician observed that the Veteran’s symptoms began around the time he started on a CPAP machine. Additionally, the Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran was afforded a VA examination in May 2016. The examiner determined that the Veteran had allergic rhinitis and opined that it was less likely than not related to multiple URIs and sinusitis during the Veteran’s active service. In support of this opinion, the examiner stated that although there may be an overlap of symptoms with URI (including sinusitis) and allergic rhinitis, generally, the clinical setting distinguished between the two making the clinical setting for the diagnosis much more valid than a review of record years later. Additionally, the examiner asserted that that it would be purely speculative to say that the Veteran’s current allergic rhinitis had any relationship to multiple in-service URIs during the 1980s or acute sinusitis. Furthermore, the examiner could find nothing in the current medical literature to indicate that bacterial or viral URI or sinusitis are significant risk factors for the development of allergic rhinitis. In this regard, allergic rhinitis was a condition of atopic disease of a familial or genetic predisposition and was often triggered by environmental factors such as increased air pollution and a changed in lifestyle. The examiner added that a decrease in bacterial/viral infections were frequently quoted as adjuvant factors for allergic sensitization and a possible cause of increased prevalence of allergic rhinitis. In June 2019, a private physician found multiple STR notations documenting recurring sinusitis that was treated with antibiotics or steroids. He stated that the intensity of the Veteran’s recurrent sinusitis during service suggested the likelihood of a chronic underlying condition such as allergic rhinitis that was producing mucous production and retention in the sinuses, providing an environment for easy bacterial growth. The Board finds the June 2019 private medical opinion does not reflect that the Veteran had acute sinusitis in March 1987. Additionally, the June 2019 private medical opinion did not address the VA physician’s observation in October 2010 that the Veteran’s allergic rhinitis symptoms began around the time he started on a CPAP machine. Hence, the June 2019 private medical opinion has limited probative value. By contrast, the Board finds the May 2016 VA medical opinion highly probative as the rationale addresses the Veteran’s multiple URIs and acute sinusitis during service. Further, the May 2016 VA medical opinion was based on the Veteran’s pertinent medical records and review of current medical literature, and the examiner relied on his own training, knowledge, and expertise in rendering his opinion. While the Veteran is competent to report observable symptoms of allergic rhinitis, he is not competent to provide an opinion linking diagnosed allergic rhinitis to his active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion for his allergic rhinitis. In sum, although the Veteran was treated for recurrent URIs and sinusitis during service, there was no in-service diagnosis of rhinitis. While there is a medical opinion of record indicating that the Veteran’s allergic rhinitis is related to his active service, that opinion has limited probative value. Moreover, the May 2016 VA examiner opined that the Veteran’s currently diagnosed allergic rhinitis was not related to his active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for rhinitis is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 5. Service Connection – DM The Veteran has asserted that his DM is related to his active service. STRs are silent for any in-service complaints of, treatment for, or diagnosis of DM. Although a review of post-service treatment records confirms that the Veteran has a diagnosis for DM, the Board finds that there is no competent evidence of record otherwise linking this disability to the Veteran’s active service. In this regard, the Veteran’s DM first manifested years following service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson, 230 F.3d 1330. Further, there is no indication from the record that DM was present to a compensable degree within a year of his separation from active service. Therefore, presumptive service connection is not warranted in this case. 38 C.F.R. § 3.309(a). Additionally, the Veteran has provided nothing beyond a bare assertion to trigger VA’s duty to assist. 38 C.F.R. § 3.159(c)(4) (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran is competent to report observable symptoms of DM, he is not competent to provide an opinion linking diagnosed DM to his active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d 1372. Therefore, the Veteran is not competent to provide an etiology opinion for his DM. In sum, the Veteran did not complain of, receive treatment for, or have a diagnosis of DM while in active service. There is no competent evidence that DM occurred in service or manifested to a compensable degree within one year of separation from service, and there is no evidence of record indicating that the Veteran’s current DM was directly related to his active service. Accordingly, the preponderance of the evidence is against the claim and entitlement to service connection for DM is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. 1. Service Connection – Psychiatric Disability The Veteran has contended that his psychiatric disability is related to his active service. STRs show that the Veteran sought counseling for an unidentified problem in March 1985. Upon mental status examination, his mood was depressed and anxious; however, the service counselor was unable to render a psychiatric diagnosis. Additionally, the Veteran received treatment for alcohol and tobacco dependence in November 1986. A review of post-service VA treatment records revealed that the Veteran was diagnosed with prolonged depressive reaction to his back injury in September 1988. Later, he was diagnosed and treated for major depressive disorder, depression, and anxiety neurosis. In June 2019, the Veteran obtained a private independent medical opinion. The physician opined that it was as likely as not that the Veteran’s depression, though undiagnosed, was present during his active service as shown by his alcohol abuse during service. Further, he opined that it was as likely as not that the veteran’s depression was linked to his service-connected back disability, granted herein. He noted that chronically painful conditions such as the Veteran’s back disability, nearly always resulted in depression. He added that the Veteran’s ongoing alcoholism was another significant factor and cited medical studies showing a strong association to depression. In light of the Veteran’s mental health counseling and alcohol dependence during service, and his post-service psychiatric diagnoses; the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present psychiatric disability. McLendon, 20 Vet. App. 79. 2. Service Connection – OSA The Veteran has contended that his OSA is related to his active service, or, alternatively, secondary to his rhinitis. Although service connection for rhinitis was denied, herein, the Veteran is not precluded from establishing service connection with proof of actual direct causation. STRs are silent for any in-service complaints of, treatment for, or diagnosis of OSA. However, post-service VA treatment records show that the Veteran was diagnosed with OSA in or around 2010. In June 2019, the Veteran obtained a private independent medical opinion. The physician found that there was clear evidence of chronic recurrent nasal congestion and sinus congestion/infection during the Veteran’s active service and that he was later diagnosed with OSA. Further, he cited a study finding that nasal obstruction was an independent risk factor for OSA and nasal resistance was an independent predictor of apnea-hypopnea index in nonobese OSA patients. In light of the Veteran’s in-service treatment for ENT trouble, URIs, and acute sinusitis, and his post-service diagnosis of OSA; the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present OSA. McLendon, 20 Vet. App. 79. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining claims on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by a psychiatrist or psychologist with sufficient expertise to determine the nature and etiology of any currently present psychiatric disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present psychiatric disability is etiologically related to the Veteran’s active service. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present obstructive sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present obstructive sleep apnea is etiologically related to the Veteran’s active service, to include in-service treatment for ENT trouble, URIs, and acute sinusitis. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, 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.