Citation Nr: 20007964 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 12-14 752 DATE: January 30, 2020 ORDER Service connection for a sleep disorder to include hypoxemia is denied. Service connection for headaches is denied. Service connection for sinusitis is denied. A compensable initial rating for bilateral sensorineural hearing loss (hearing loss) from May 26, 2010 to September 3, 2019, and an initial rating higher than 10 percent from September 3, 2019, is denied. An increased rating in excess of 10 percent for residuals of a deviated nasal septum is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with hypoxemia. 2. There is no in-service injury, disease, or event related to hypoxemia or a respiratory condition. 3. There is no etiological relationship between current hypoxemia or a respiratory condition and service. 4. The hypoxemia is neither caused nor worsened in severity by the service-connected deviated nasal septum. 5. The Veteran is currently diagnosed with cluster headaches. 6. There is no in-service injury, disease, or event related to headaches. 7. The headaches did not start during service. 8. The current cluster headaches are not related to service. 9. The cluster headaches are neither caused nor worsened in severity by the service-connected deviated nasal septum. 10. The Veteran does not have a present disability of sinusitis. 11. From May 26, 2010 to September 3, 2019, the service-connected hearing loss was manifested by no worse than Level I hearing loss for the right ear and Level I hearing loss for the left ear pursuant to Table VI, with speech recognition ability of 100 percent in the right ear and 92 percent in the left ear. 12. From September 3, 2019, the service-connected hearing loss has been manifested by no worse than Level II hearing loss for the right ear and Level V hearing loss for the left ear pursuant to Table VI, with speech recognition ability of 90 percent in the right ear and 76 percent in the left ear. 13. The service-connected deviated nasal septum manifested with 50 percent obstruction of the nasal passage on both sides. CONCLUSIONS OF LAW 1. The criteria for service connection for hypoxemia, including as secondary to the service-connected deviated nasal septum, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for headaches, including as secondary to the service-connected deviated nasal septum, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for sinusitis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a higher (compensable) initial disability rating for hearing loss from May 25, 2010 to September 3, 2019, and a higher initial rating than 10 percent from September 3, 2019, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2018). 5. The criteria for an increased rating in excess of 10 percent for a deviated nasal septum have not been met or more nearly approximated during the entire rating period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6502 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1955 to January 1958. The instant case is an appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The case has three prior Board of Veterans’ Appeals (Board) remands in order to further develop the record. The most recent remand occurred in October 2017. The remand required VA examinations for all issues on appeal. The RO secured those examinations and, accordingly, the Board finds that there has been substantial compliance with the October 2017 remand with respect to the issues on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The most recent October 2017 remand also denied service connection for an acquired psychiatric illness. It appears that the RO has attempted to readjudicate this issue despite its resolution by the Board. The October 2017 Board decision was final when issued. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). Any attempt to readjudicate the Board’s final decision is legally erroneous. For the issue to be reconsidered, a new claim with new and material evidence would have to be submitted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. Neither the Veteran nor the representative has raised contentions regarding notice or assistance. Service Connection Legal Authority Direct Service Connection Service connection can be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; 2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and 3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Secondary Service Connection Under 38 C.F.R. § 3.310, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 1. Service Connection for a Sleep Disorder, to Include Hypoxemia The Veteran claimed at an October 2014 Board hearing that he was dealing with sleep apnea, and that a sleep study had recently been conducted. The Veteran contends generally that the sleep issues are linked to the service-connected deviated nasal septum. A VA sleep study showed that the Veteran did not have sleep apnea but had hypoxemia, which upon further study was noted to be a problem while asleep and at times of exertion. Hypoxemia is an abnormally low level of oxygen in the blood. The evidence shows no in-service injury, disease, or event related to hypoxemia or a respiratory condition. The January 1958 service separation examination report noted marks on the body, but no other disabilities or concerns, including nothing related to sleep or respiratory symptoms. A November 2019 VA opinion, based on a September 2019 Disability Benefits Questionnaire (DBQ), concluded that the hypoxemia was not directly related to service. The examiner noted that the first diagnosis was greater than 50 years after service. Given no in-service disease, injury, or event, the criteria for service connection on a direct basis are not met. The Veteran has focused on a potential link between hypoxemia and the service-connected deviated nasal septum. The VA examiner reviewed the claims file and noted that the Veteran is an ex-smoker who first had hypoxemia noted on the sleep study, which was referred for treatment in the pulmonology clinic. A September 10, 2014 Pulmonology Note showed that hypoxemia also occurred on exertion. The Veteran was placed on supplemental oxygen at the time, although he has since discontinued the supplemental oxygen. See October 2019 Primary Care Note. The VA examiner noted that there was reduced pulmonary functioning and pulmonary function tests revealed moderate obstruction and moderately reduced diffusing capacity for carbon monoxide. The CT scan of the chest revealed basilar fibrotic changes and calcified granulomas. After reviewing all the records, including the DBQ, the VA examiner opined that there was no secondary relationship—either causation or aggravation—between the deviated nasal septum and the hypoxemia. With respect to causation, the hypoxemia is due to a separate respiratory disorder. With respect to aggravation, the deviated nasal septum has no anatomic relationship to the cause of the hypoxemia and, therefore, could not have aggravated it. The Board finds that the weight of the evidence shows no secondary relationship between the hypoxemia and the deviated nasal septum. Given the lack of direct service connection and the lack of secondary service connection, service connection for a sleep disorder to include hypoxemia must be denied. 2. Service Connection for Headaches The Veteran claimed at an October 2014 Board hearing that he was getting headaches and not breathing well, having to sit in a dark room, and that the headache would go away in a couple of hours. The Veteran contended that at the time he was getting headaches twice per week that lasted four to five days at times. The Veteran stated that he was told that the headaches are due to the deviated nasal septum. The Veteran’s reported symptoms and the September 2019 DBQ both support the existence of a present disability. The Veteran reported that he now gets the headaches for about two months out of the year and that he treats with Tylenol as needed. The September 2019 DBQ diagnosed the headaches as being cluster headaches. The Veteran contended in a 1969 claim that his symptoms had an onset in 1958, which would have been during service; however, this statement is outweighed by the lay and medical evidence closer in time, namely the service separation examination and reports of symptoms. In the separation examination, there were no statements by the Veteran about headaches or any neurological symptoms. The November 2019 VA examiner, based on a September 2019 DBQ, opined that the cluster headaches were not directly related to service and that there was no nexus. The VA examiner noted that the first report of headaches came 10 years after service separation. In this case, with no in-service injury, disease, or event, there is no basis for direct service connection. The Veteran also focused on the possible link between the service-connected deviated nasal septum and the cluster headaches. The Veteran referenced a doctor telling him that they were related; however, this general statement is without additional information—what doctor, when, what information they were basing the opinion on, and other similar requirements—the statement lacks any probative value. In addition, no further assistance can be provided because of lack of any specific information about the alleged statement by an unidentified doctor. The November 2019 VA examiner gave a negative opinion that addresses both theories of secondary service connection. With both, the main focus was on the etiology of cluster headaches. The VA examiner noted that the pathophysiology of cluster headaches is complex and not fully understood; however, the VA examiner provided two leading theories and noted that the theories are very clearly not related to a deviated nasal septum. The VA examiner concluded that there is also no anatomic or etiological basis to lead to aggravation, as applying the same theories. Given the weight of the evidence, both lay and medical, the Board finds that there is no basis for a direct or secondary service connection theory. Accordingly, the claim for service connection for headaches must be denied. 3. Service Connection for Sinusitis At the October 2014 Board hearing, the Veteran stated that he would get sinus infections maybe twice per year. He stated that he would struggle to breathe and use an inhaler or an over-the-counter medication. The record does not reflect a diagnosis for sinusitis. A November 2019 addendum to a September 2019 DBQ stated that the reported sinusitis is subjective reports only and there is no objective evidence to support treatment or diagnosis of sinusitis. While it is important to note the Veteran’s subjective symptoms as credible lay testimony, the Veteran has been monitored by an Otolaryngology Clinic for at least five years and no appointment pertained to a sinus infection. The Veteran reports various breathing-related or respiratory symptoms that simply are not sinusitis symptoms. Accordingly, the weight of the evidence, both lay and medical, is against a current sinusitis disability. With no current disability, service connection under any theory must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Disability Ratings Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of ratings with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Rating Hearing Loss Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85; Diagnostic Code 6100. Hearing tests will be conducted without hearing aids and the results of above-described testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment are derived from the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. 38 C.F.R. § 4.85(a). Numeric designations of Level I through XI are assigned by application of Table VI, in which the percentage of speech discrimination is intersected with the puretone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII for a percentage rating. A puretone threshold average, as used in Tables VI and VIA is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. That average is used in all cases, including those in 38 C.F.R. § 4.86 (patterns of exceptional hearing loss), to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA (38 C.F.R. § 4.85(d). Where puretone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86(a) (describing an exceptional pattern of hearing impairment). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher number of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86(b) (describing another exceptional pattern of hearing impairment). 4. Rating Hearing Loss In this case, during a March 2012 VA examination with respect to hearing loss, the VA examiner performed the necessary audiometric testing. An additional examination occurred in September 2019, which is discussed further below. The Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 3/2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 15 35 70 35 100 LEFT 20 30 65 85 50 92 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in this case. For these reasons, an increased (compensable) disability rating from May 26, 2010 to September 3, 2019 is not warranted pursuant to the Rating Schedule. 38 C.F.R. §§ 4.3, 4.7, 4.85. A new VA examination was ordered in the most recent remand and the examination occurred on September 3, 2019. 9/2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 30 60 90 55 90 LEFT 45 65 85 100 74 76 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level II or the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in this case. For these reasons, an initial disability rating higher than 10 percent from September 3, 2019 is not warranted pursuant to the Rating Schedule. 38 C.F.R. §§ 4.3, 4.7, 4.85. 5. Rating Deviated Nasal Septum The Veteran contends that symptoms related to the service-connected deviated nasal septum have increased in severity from the current 10 percent disability rating. A deviated nasal septum is rated under Diagnostic Code 6502. For traumatic occurrence, which is the only type allowed, a 10 percent rating is given when there is either 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. (Continued on the next page)   The September 2019 Sinusitis DBQ noted that there was at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation and that there was complete obstruction on the left side. Accordingly, the 10 percent disability rating that the Veteran currently receives is warranted and is also the maximum rating allowed. The Board notes that the issue of allergic rhinitis has been raised by the record but not explicitly stated by the Veteran. When someone with allergic rhinitis does not have polyps, their rating is on the same approach as that given for a deviated nasal septum. Because the symptoms would be rated in the same fashion, the evidence still could not result in a disability rating in excess of 10 percent, which is the maximum rating. Given the weight of the evidence, both lay and medical, an increased rating from the schedular maximum of 10 percent is not warranted. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.