Citation Nr: 20009992 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 17-39 086 DATE: February 6, 2020 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), secondary to service-connected sinusitis on a causation basis, is granted. Entitlement to service connection for obstructive sleep apnea (sleep apnea), secondary to service-connected sinusitis on a causation basis, is granted. Entitlement to an initial rating of 30 percent, but no higher, for service-connected maxillary and ethmoid sinusitis due to fractured nose and deviated nasal septum (sinusitis) is granted for the entire appeal period, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current COPD is caused by his service-connected sinusitis. 2. The evidence is at least evenly balanced as to whether the Veteran’s current sleep apnea is caused by his service-connected sinusitis. 3. Symptoms of the Veteran’s service-connected sinusitis have more nearly approximated more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD, secondary to service-connected sinusitis on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.310. 2. The criteria for service connection for sleep apnea, secondary to service-connected sinusitis on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.310. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 30 percent rating, but no higher, for sinusitis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.27, 4.97, Diagnostic Code (DC) 6510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from December 1963 to November 1967. These matters come to the Board of Veterans’ Appeals (Board) via two different appeal streams. The Regional Office (RO), in a June 2016 rating decision, denied service connection for COPD and sleep apnea. The Veteran filed a timely notice of disagreement (NOD) with the rating decision in April 2017. A statement of the case (SOC) was issued to the Veteran in June 2017 and, in July 2017, the Veteran filed a timely substantive appeal to the Board (via VA Form 9). Separately, the RO, in a July 2016 rating decision, granted service connection for sinusitis and was assigned a noncompensable rating. The Veteran filed a timely NOD in June 2017. A SOC was issued in October 2017 and, in October 2017, the Veteran filed a timely substantive appeal to the Board (via VA Form 9). In November 2019, the Veteran testified before the undersigned in a videoconference hearing regarding all three claims; a transcript of the hearing is of record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his COPD and sleep apnea are caused by his service-connected sinusitis. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The evidence of record shows that the Veteran was diagnosed with COPD and sleep apnea in June 2017 while being treated at West Virginia University. Thus, current disabilities have been established. Additionally, the Veteran was granted service connection for sinusitis in a July 2016 rating decision. Therefore, the dispositive issue is whether the Veteran’s current COPD and sleep apnea are proximately due to or the result of his service-connected sinusitis. On that question, the evidence file contains two positive nexus opinions. The Veteran testified at his November 2019 Board hearing that his doctor from West Virginia University had told him his sleep apnea was caused by his sinusitis. Following the hearing, the Veteran’s doctor submitted medical opinions connecting the Veteran’s COPD and sleep apnea to his sinusitis. The doctor noted that it is well documented that septal deviations (the cause of the Veteran’s sinusitis) can cause sleep apnea. He also noted that compounding the Veteran’s health problems, sinus infections can exacerbate COPD. While the doctor does not draw a straight line from the Veteran’s sinusitis to his sleep apnea and COPD, medical reports must be read as a whole and in the context of the evidence of record. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012); see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). Thus, the West Virginia University doctor’s medical opinion warrants significant probative value. While the Board could remand the case again for yet another opinion, such a request could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). The evidence is sufficient to decide the claim, as the preponderance of the evidence weighs in favor of whether the Veteran’s COPD and sleep apnea are secondary to his service-connected sinusitis. Therefore, entitlement to service connection for COPD and sleep apnea, secondary to his service-connected sinusitis on a causation basis, is warranted. 38 C.F.R. § 3.102, 3.310. Initial Rating Disability ratings are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran’s service-connected sinusitis is currently rated under DC 6510. The DCs applicable to sinusitis, including DC 6510, are rated under the general rating formula for sinusitis as follows: a 0 percent rating is awarded for sinusitis detected by x-ray only; a 10 percent disability rating is awarded for sinusitis manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; a 30 percent disability rating is awarded for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; and a 50 percent disability rating is awarded for sinusitis following radical surgery with chronic osteomyelitis, or manifested by 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 is one requiring bed rest and treatment by a physician. See 38 C.F.R. § 4.97. In his June 2017 NOD, the Veteran asked for a 10 percent or higher initial rating for his sinusitis based on additional evidence included. During a January 2012 ENT consultation, the Veteran was described as having had postnasal drip for the previous two to three years which included colored drainage every two to three months that clears up with antibiotics. Subsequent ENT consultations, such as in May 2015, note the continued presence of yellow nasal drainage and a large elongated uvula due to the drip. A July 2016 VA examiner reported that the Veteran has always had sinus problems but did not note any specific sinus symptoms or incapacitating episodes in the previous year. A July 2017 VA examiner, however, elaborated that the Veteran reported constant nasal dripping and post nasal drainage, dyspnea with repetitive bending due to sinus congestion, and an inability to sleep on his side without dyspnea and excess drainage build-up. The VA examiner also noted an inability to bend over repetitively without dyspnea due to nasal congestion resulting in chronic cough. Lastly, in his November 2019 Board hearing, the Veteran testified that he has daily discharge, nasal crusting and headaches when he bends over due to the rushing to the head. The Veteran denied, however, incapacitating episodes. The Veteran is competent to report his own symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Upon review of the evidence, and giving the Veteran the benefit of the doubt, the Board finds that an initial rating of 30 percent, but no higher, is warranted throughout the entire appeal period. The evidence shows that the Veteran experiences frequent nasal discharge and postnasal drip, nasal crusting and chronic stuffy nose. The near-constant frequency of these non-incapacitating episodes of sinusitis places the Veteran’s disability picture between the 10 percent and 30 percent disability criteria. As the evidence is thus approximately evenly balanced, the reasonable doubt created by this relative equipoise in the evidence warrants a finding that the symptoms of the service-connected sinusitis have more nearly approximated the criteria for a 30 percent disability rating under DC 6510 throughout the entire appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, 4.7. A rating of 50 percent is not warranted as the Veteran has not undergone repeated surgeries for his sinusitis. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, 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.