Citation Nr: 20043855 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 17-04 648 DATE: June 30, 2020 ORDER Entitlement to service connection for sleep apnea, as secondary to the service-connected chronic sinusitis is granted. Entitlement to an initial compensable rating for the service-connected residuals of bilateral inguinal hernia surgery is denied. REMANDED Entitlement to service connection for a bilateral foot disability, to include pes planus, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an initial rating in excess of 10 percent for chronic rhinitis is remanded. Entitlement to increased initial ratings for chronic sinusitis, rated as noncompensable prior to December 6, 2016, and 30 percent from that date, is remanded. Entitlement to increased initial ratings for left knee strain with arthritis (left knee disability), rated as noncompensable prior to December 22, 2015, and 10 percent from that date, is remanded. Entitlement to increased initial ratings for right knee strain with arthritis (right knee disability), rated as noncompensable prior to December 22, 2015, and 10 percent from that date, is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the spine is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s obstructive sleep apnea was aggravated by the service-connected chronic sinusitis. 2. The preponderance of the evidence shows that the residuals of bilateral inguinal hernia surgery have not included recurrent hernias or any other disabling effect. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a compensable rating for residuals of bilateral inguinal hernia surgery have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is confirmed to have served on active duty in the United States Air Force from January 1974 to February 1976 and October 2001 to December 2002. He had additional service in the Texas Air National Guard, including a period of full-time duty from January 1997 to November 2000, but as will be further explained below in the remand section, the nature of that period of service remains unclear. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2014 and May 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a September 2019 decision issued by a Veterans Law Judge other than the undersigned, the Board remanded the matters for additional development. Entitlement to service connection for sleep apnea. The Veteran contends he has obstructive sleep apnea that is secondary to the service-connected chronic sinusitis. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310, Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The medical evidence of record, including a January 2020 VA examination report, shows the Veteran currently has obstructive sleep apnea. Therefore, the remaining question before the Board is whether the Veteran’s obstructive sleep apnea is caused or aggravated by the service-connected chronic sinusitis. The Board has reviewed the record and finds that there is evidence both for and against the claim. The evidence against the claim includes the January 2020 VA examination report. The examiner concluded it would be speculation to state if the obstructive sleep apnea has progressed due to the sinusitis, but separately noted that the Veteran’s sinus disease is not a risk favor for developing sleep apnea because treatment records show he has mild sinus disease. The examiner referenced medical literature that indicates structural factors related to nasal obstruction that predispose patients with obstructive to pharyngeal collapse during sleep include polyps, septal deviation, tumors, trauma, and stenosis. She noted the Veteran is not known to have a condition that predisposes obstructive sleep apnea patients to pharyngeal collapse. The evidence in favor of the claim includes a private physician’s opinion, a November 2009 X-ray report, and medical literature submitted by the Veteran. In an August 2019 letter, a private physician opined that it is more likely than not that the Veteran’s chronic sinusitis is contributing to and aggravating his obstructive sleep apnea. The November 2009 private X-ray report notes there was partial opacification in the inferior left maxillary sinus that could be from a retention cyst, polyp, small amount of fluid, or mucosal thickening. The Veteran submitted a 2019 article, Nasal Pathologies in Patients with Obstructive Sleep Apnea, that notes it has been well established that chronic sinusitis causes impaired sleep quality and represents a risk factor for sleep apnea. The authors noted that other studies have supported the theory that nasal obstruction is a contributing factor in the development of obstructive sleep apnea because nasal obstruction leads to mouth breathing, which is thought to destabilize the upper airway and aggravate obstructive sleep apnea. The Board finds the evidence in favor of the claim and the evidence against the claim is of equal weight. The January 2020 VA examiner opined the obstructive sleep apnea was not caused by the Veteran’s service-connected chronic sinusitis, but did not provide an opinion on aggravation because it would amount to speculation. Notably, the examiner did not address the August 2019 private opinion, November 2009 X-ray report, or 2019 article submitted by the Veteran. Accordingly, the opinion is of limited probative value. The private physician’s opinion that the Veteran’s obstructive sleep apnea has been aggravated by the chronic sinusitis is of limited probative value when considered alone because it lacks supporting rationale, but the Board finds it is probative because it is supported by the Veteran’s treatment history and medical literature. The evidence for and against the claim is in relative equipoise. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea is warranted. Entitlement to a compensable rating for residuals of bilateral inguinal hernia surgery. The Veteran contends that his service-connected residuals of bilateral inguinal hernia surgery meet the criteria for an initial compensable rating. The Board notes that the September 2019 Board decision denied entitlement to compensable ratings for the service-connected residual scars of the inguinal hernia surgery. Accordingly, the Board will not be addressing the scars as part of this appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The service-connected residuals of bilateral inguinal hernia surgery have been rated as non-compensable under 38 C.F.R. § 4.114, Diagnostic Code 7338. Under that Diagnostic Code, a 0 percent rating is assigned for a small inguinal hernia, reducible, or without true hernia protrusion. A 0 percent rating is also assigned if it is not operated, but remediable. A 10 percent rating is assigned for a postoperative recurrent inguinal hernia, readily reducible and well supported by a truss or belt. A 30 percent rating is assigned for a small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by a truss, or not readily reducible. A 60 percent rating is assigned for a large inguinal hernia, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. The Board finds that the most probative evidence of record shows that residuals of bilateral inguinal hernia surgery have not included recurrent hernias or any other disabling effect. The Veteran was provided a VA hernia examination in August 2014. The examiner noted the Veteran underwent surgery to repair left and right hernias in 1975, but detected no inguinal hernia during the examination. The examiner indicated there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to hernia surgery residuals other than the service-connected scars. The examiner opined the hernia condition does not impact the Veteran’s ability to work. A January 2015 VA treatment record notes the Veteran denied abdominal pain. In a December 2015 consultation report, a chiropractor indicated the Veteran experienced residual inguinal pain on the left and ride sides that intensifies with sitting, bowel movements, lifting, and spontaneous exacerbation. The Veteran underwent another VA hernia examination in December 2016. The examiner diagnosed status post bilateral inguinal hernia surgery with residual pain. No hernia was detected during the examination. The examiner indicated there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to hernia surgery residuals. The examiner opined the hernia condition does not impact the Veteran’s ability to work. The Board notes that in a March 2017 statement, the Veteran contended the December 2016 examination was inadequate solely because it was carried out by a nurse practitioner and not a doctor. However, the United States Court of Appeals for Veterans Claims (CAVC) has held nurse practitioners are competent to provide diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Accordingly, the Board finds the December 2016 VA examination is adequate for rating purposes. The Veteran was provided another VA hernia examination in January 2020. The Veteran reported that he experienced numbness around the surgical areas for six to nine months after the 1975 surgery but that the residuals had resolved with no recurrence and no other intervention since. No hernia was detected on examination. The examiner opined the hernia condition does not impact the Veteran’s ability to work. Accordingly, the record does not show the Veteran’s hernias have recurred during the period on appeal, and the criteria for compensable rating under 38 C.F.R. § 4.114, Diagnostic Code 7338, have not been met. In addition, while the December 2015 private evaluation report and December 2016 VA examination report indicate the Veteran experienced pain due to the hernia residuals, there’s no indication this pain has had a disabling effect. Notably, each of the three VA examiners indicated there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to hernia surgery residuals and opined the hernia condition does not impact the Veteran’s ability to work. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) ("[t]o establish the presence of a disability, a veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity"). Accordingly, the Board finds that the most probative evidence of record shows that the criteria for an initial compensable rating for hypertension is not warranted under 38 C.F.R. § 4.104. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends an acquired psychiatric disability manifested in service after he responded to the bombing at the 1996 Summer Olympics in Atlanta, Georgia, while providing security as a National Guard member and also as result of being accused of sexual harassment in July 1997 while assigned to work with the Drug Enforcement Agency in Houston, Texas. In September 2019, the Board remanded this issue to obtain the Veteran’s complete service personnel records so the nature of his military service during these periods could be clarified and to arrange for a VA examination. The January 2020 VA examination report notes that the Veteran produced records of mental health treatment that occurred during the period of service from January 1997 to November 2000. He also reported he provided letters from his mental health providers to superiors. It does not appear these records are associated with the claims file. Thus, while service personnel records were added to the claims file in October 2019 in response to the Board’s remand, it does not appear they are complete. In addition, it is not clear whether the Veteran’s complete service treatment records have been associated with the file. Accordingly, remand is required to obtain any such outstanding records. This development should include requesting service personnel and treatment records from the Texas Air National Guard. The Board notes there is conflicting evidence regarding the nature of the Veteran’s service from January 1997 to November 2000. Because the Veteran seeks to establish service connection based on his National Guard service, the threshold question is whether or not the service in question was "federalized" service, qualifying for VA compensation benefits. A DD Form 214 indicates the period was active duty service while Air National Guard credit summaries classified portions of the period as a ‘Special Tour’ and separately as active duty for training (ACDUTRA). Copies of travel orders submitted by the Veteran also suggest it was a period of ACDUTRA. On remand, appropriate development to verify through official channels all periods of active duty service, ACDUTRA, and INACDUTRA should be completed. In this regard, it would be of great help to the Board if the Veteran could obtain these records. 2. Entitlement to service connection for a bilateral foot disability. A determination on the nature of the Veteran’s service from January 1997 to November 2000 as well as any outstanding service treatment records will also impact the adjudication of entitlement to service connection for a bilateral foot disability. Accordingly, remand of this matter is also required for the development described above. 3. Entitlement to an increased rating for right knee strain with osteoarthritis. 4. Entitlement to an increased rating for left knee strain with osteoarthritis. The Board remanded these matters after finding the most recent, December 2015 VA examination was inadequate under Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), because the examiner noted there was limitation of function due to pain, but stated he was unable to describe the limitation in terms of range of motion without an adequate explanation. The remand directed that the claims file must be made available to the examiner performing the updated examination. The Veteran was provided an updated VA knee examination in January 2020. The examiner noted evidence was not reviewed as part of the examination. This oversight is significant in this case. In a June 2019 statement, the Veteran reported there was increased incidences of his knees giving out accompanied by severe pain. He also reported experiencing decreased mobility and flare-ups in both knees, though more severe in the right. He said the knee disabilities prevent him from working in a job or participating in activities that require him to use stairs or ramps. However, while the examiner indicated the Veteran reported having difficulty with stairs and a feeling of weakness with pain, he indicated the Veteran did not report having flare-ups or having any functional loss or functional impairment of the knee joints. Accordingly, the Board finds the January 2020 VA examination is inadequate because the examiner did not review the medical evidence in the claims file and directly contradicted statements made by the Veteran just months earlier. Remand to obtain adequate examinations of the left and right knee disabilities is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). 5. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the spine. Remand to obtain an adequate examination of the service-connected degenerative arthritis of the spine is required for similar reasons. The January 2020 examiner noted evidence was not reviewed as part of the examination and noted the Veteran does not have radicular pain or any other signs or symptoms due to radiculopathy, but a private December 2019 MRI report notes the Veteran has a history of lumbar pain and radiculopathy. Accordingly, the Board finds the examination is inadequate because the examiner did not review the medical evidence in the claims file and, therefore, did not consider a private treatment record suggesting evidence of radiculopathy. In addition, the record reflects that there may be outstanding non-VA treatment records potentially relevant to the claim on appeal. In this regard, the December 2019 MRI report suggests the Veteran has been receiving treatment for his back disability from KSF Orthopaedic Center in Houston, Texas, but updated records other than the MRI report have not been received. Accordingly, reasonable efforts must be undertaken to obtain any missing treatment records in accordance with VA's duty to assist under 38 C.F.R. § 3.159. See Massey v. Brown, 7 Vet. App. 204 (1994). To ensure that the most recent and up-to-date evidence is available in the record, the Veteran should be asked to identify any non-VA treatment providers who have rendered treatment for his claimed disabilities that are being remanded. 6. Entitlement to an initial rating in excess of 10 percent for chronic rhinitis. 7. Entitlement to increased initial ratings for chronic sinusitis. The Board’s September 2019 remand explained that these matters required updated examinations, in part to clarify whether the Veteran has nasal polyps. However, the Board mistakenly omitted the requested development in the remand directives. The Board regrets the error and the delay it caused in adjudicating these matters, but remand is required to arrange for this development. 8. Entitlement to TDIU. The issue of entitlement to TDIU is inextricably intertwined with the other matters being remanded herein and must therefore also be remanded to be adjudicated concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment and service personnel records, including directly from the Texas Air National Guard. If possible, the Veteran himself should submit any records he has that have not been submitted in order to expedite the claim. 2. Undertake appropriate development to verify through official channels all periods of active duty service, ACDUTRA, and INACDUTRA. The actual dates of service are needed. 3. The AOJ must contact the Veteran and request that he identify any non-VA treatment providers, including KSF Orthopaedic Center, and complete release forms (VA Form 21-4142) authorizing VA to request copies of any non-VA treatment records. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If possible, the Veteran himself should submit any pertinent medical evidence regarding the conditions at issue in order to expedite the claim. 4. Obtain and associate with the claims file any outstanding VA treatment records. 5. Schedule the Veteran for a VA examination with a suitably qualified medical professional to address the severity of his (1) back and (2) knee disabilities. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions regarding the Veteran’s back disability: (a) The examiner should identify all back pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe any flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment shhe experiences during a flare-up of symptoms and/or after repeated use over time. (e) Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. (f) If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (g) The examiner should also state the nature, extent, and severity of any radiculopathy or any other associated neurologic abnormalities. In so doing, the examiner should consider the private treatment records, including a December 2019 MRI report, that indicate he has a history of radiculopathy. In providing the opinions, the examiner should consider the Veteran's competent lay statements regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions regarding the Veteran’s knee disabilities: (a) The examiner should identify all left and right knee pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. (e) If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (f) Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. (g) If the examiner cannot estimate the degrees of additional range of motion loss in left and right knee forward flexion and backward extension during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (h) The examiner should also state the nature, extent, and severity of any knee instability. In providing the opinions, the examiner should consider the Veteran's competent lay statements regarding observable symptomatology, including instability. The examination report must include a complete rationale for all opinions expressed. 6. Schedule the Veteran for a VA examination with a suitably qualified medical professional to address the severity of his sinusitis and allergic rhinitis. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should specifically note whether the rhinitis has manifested with polyps during the pendency of the appeal. In providing any opinions, the examiner should consider the Veteran's competent lay statements regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. 7. After undertaking any other appropriate development deemed necessary, including obtaining new etiology opinions regarding the psychiatric and foot claims if indicated, readjudicate the issues on appeal, including the Veteran's claim for a TDIU, based on the additional evidence of record. If the determinations remain adverse to the Veteran, he must be provided with a Supplemental Statement of the Case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.