Citation Nr: 21065616 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-27 352 DATE: October 26, 2021 ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for right lower extremity sciatica (claimed as a right hip disability) is granted. REMANDED Entitlement to service connection for a right hip disability, other than sciatica, to include arthritis, is remanded. Entitlement to service connection for an eye disability, to include glaucoma, is remanded. Entitlement to service connection for gout is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for degenerative arthritis with chronic lumbosacral strain is remanded. Entitlement to an initial compensable rating for left ear hearing loss, from March 18, 2016 to August 2, 2017, and to an initial compensable rating for bilateral hearing loss, from April 2, 2017, is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a sleep disability, to include narcolepsy and sleep apnea is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for residuals of a stroke is remanded. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's sinusitis clearly and unmistakably existed prior to his active duty service and clearly and unmistakably was not aggravated beyond the normal progress of the disease by either period of active duty service. 2. The Veteran has right lower extremity sciatica that causes pain in the right hip; such disability is related to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 101, 1110, 1111, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.306. 2. The criteria for service connection for right lower extremity sciatica have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from April 1981 to June 1998. The Veteran's service also includes a period of active duty for training from March 1980 to January 1981. The Veteran testified before the undersigned at an April 2021 virtual hearing. A transcript has been associated with the Veteran's claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection is also warranted on a secondary basis, for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). 1. Entitlement to service connection for sinusitis is denied. The Veteran contends generally that he is entitled to service connection for sinusitis. See April 2021 Board Hearing Transcript. Here, the Veteran reported sinusitis on his September 1979 Report of Medical History upon entry into service. However, on his actual Report of Medical Examination upon entry into service, clinical evaluation of the sinuses was "normal." No pre-existing sinusitis disability was noted on this entrance examination. As such, the presumption of soundness attaches as to this disability. 38 U.S.C. § 1111. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Crucially, if the presumption of sound condition is rebutted, "then the Veteran is not entitled to service-connected benefits." Wagner, 370 F.3d at 1096. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003). In this case, the evidence clearly and unmistakably demonstrates that the Veteran had been suffering from sinusitis prior to service, and that such was clearly and unmistakably not aggravated during service. As noted above, the Veteran specifically reported a history of sinusitis on his Report of Medical History upon entry into service in September 1979. The Veteran's sinusitis was noted periodically throughout his service on various examinations. See e.g., December 1982 and April 1987 Service Treatment Records. At the Veteran's retirement examination in June 1998, the Veteran's sinusitis was again noted, with additional information provided that the Veteran experienced "seasonal sinusitis PND [sp?], congestion." There is no evidence of complaints, treatment, or aggravation related to the Veteran's sinusitis during service. During his April 2021 Board hearing, the Veteran testified that he did have sinus problems prior to service and that his pre-existing sinusitis did not worsen during service, but instead was the same level of severity before and during service. In regard to the level of severity during his entire period of service, the Veteran testified "it hasn't gotten any worse" and instead was a "continuous" problem. As the Veteran's service records and 2021 testimony confirm that a sinusitis disability pre-existed service, and given that (1) there is no contemporaneous evidence indicating the Veteran's sinusitis worsened during service, and (2) the Veteran specifically testified that his sinusitis did not worsen during service, the Board finds that there is clear and unmistakable evidence that both, the disability pre-existed service and was not aggravated by service. As such, the presumption of soundness is rebutted, and the benefit sought on appeal must be denied. See 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096. 2. Entitlement to service connection for a right lower extremity sciatica (claimed as a right hip disability) is granted. The Veteran has contended that he has a right hip disability that should be either directly related to service, or related to another service-connected disability. As will be discussed below, review of the record demonstrates that one causal factor in the Veteran's right hip pain is actually right lower extremity sciatica, stemming from his service-connected lumbar spine disability. Based on the Veteran's reported symptoms, it is clear that he is seeking service-connection for any disability affecting his right hip, to include sciatica. Here, the Veteran's representative has described his pain as "pain stemming from [his] back shooting down [his] right side" and the Veteran described feeling this pain "[f]rom my buttocks all the way to my toes" adding that he had experienced this pain "[e]ven when I was still in the military." See April 2021 Board Hearing Transcript. The January 2018 C&P examiner noted that the Veteran suffered an injury to his low back in 1985, which was followed by the onset of intermittent pain in the right buttock and lateral hip area one year later that medical providers linked to the Veteran's back injury. The examiner commented the Veteran "has sciatic pains which manifest in the right hip." The examiner identified significant diagnostic findings from a December 2015 x-ray, which included "mild lumbosacral degenerative changes" that may suggest the etiology of the Veteran's hip pain. The examiner also remarked that "this is not a hip condition" and "it [the Veteran's condition] appears related to sciatic pain from a back condition." The Board notes that the same examiner, later in the report, indicated that the Veteran did not suffer from radiculopathy affecting his right lower extremity, involving the L4/L5/S1/S2/S3 nerve roots (sciatic nerve). Such an indication is inconsistent with the examiner's comment that the Veteran "has sciatic pains which manifest in the right hip." The Board places more probative value in the examiner's actual descriptions of symptoms. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's right lower extremity sciatica, which causes right hip pain, is proximately due to his service-connected lumbar spine disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right lower extremity sciatica is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 3.310. The Board observes that the Veteran's VA treatment records also note a diagnosis of early osteoarthritis of the right hip that post-dates the 2018 examination described above. Insofar as no opinion has been obtained addressing whether right hip arthritis may be related to service or another service-connected disability, the Board has ordered such development in the Remand section below. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability, other than sciatica, to include arthritis, is remanded. As noted above, the Veteran asserts that he has a right hip arthritis that is related to his other service-connected disabilities. At the time of his last examination, no arthritic disability specific to the right hip was noted. However, at an August 30, 2019 Primary Care visit, early osteoarthritis of the right hip was identified. To date, no opinion has been obtained addressing these potential relationships, and such should be obtained on remand. 2. Entitlement to service connection for an eye disability, to include glaucoma, is remanded. The Veteran asserts he has glaucoma that was first diagnosed during his period of service. Review of the record does not include a formal diagnosis of glaucoma, but service treatment records note care for blurred vision, hyperopia, and presbyopia (see a May 6, 1998 treatment report), and post-service treatment records note assessments of presurgical cataracts, field loss, herpes zoster, and anatomical narrow angles (see, e.g., a January 23, 2019 VA Eye Clinic Note). The Veteran has testified that he has experienced eye problems since service, but no examination has been provided to assess the nature and etiology of any diagnosed eye disability. On remand, such should be scheduled. 3. Entitlement to service connection for gout is remanded. The Veteran contends that he was diagnosed with gout while in service, and that as a result, he is entitled to service connection for his disability. See April 2021 Board Hearing Transcript. Here, VA treatment records from November 2019 show that the Veteran's medical history included a history of "gout from 40 yrs, started in military. States it is on both clavicles and pain is there all the time..." The Veteran's VA treatment records following this appointment noted flare-ups, elevated uric acid levels, and referred to treatment with medication and follow up in six weeks. As there is an open medical question regarding the nature and etiology of the Veteran's gout, a VA examination and opinion must be obtained on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to an initial disability evaluation in excess of 10 percent for degenerative arthritis with chronic lumbosacral strain is remanded. During his April 2021 Board hearing, the Veteran testified that his lumbar spine disability had worsened since his most recent examination in August 2017. As the current level of severity is an open medical question, the Veteran's claim must be remanded for a new examination. Additionally, the Board notes that the Veteran reported experiencing flare-ups but the examiner indicated that it was not possible to provide an estimate of the loss of range of motion during flare-ups because that would be resorting to speculation. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. An examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. 5. Entitlement to an initial compensable rating for left ear hearing loss, from March 18, 2016 to August 2, 2017, and to an initial compensable rating for bilateral hearing loss, from April 2, 2017, is remanded. During his April 2021 Board hearing, the Veteran testified that his hearing had worsened since his most recent examination in August 2017. As the current level of severity remains an open medical question, the Veteran's claim must be remanded for a new examination. The Board also notes that although the Veteran was initially granted service connection for his left ear only, that rating was expanded to his right ear following his August 2017 examination, which demonstrated the presence of right ear hearing loss, as well. The propriety of both ratings remains on appeal. 6. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he has a current right knee disability, to include pain and instability, which began in service. Alternatively, the Veteran contends that he has a right knee disability secondary to service-connected disabilities. See April 2021 Board Hearing Transcript. The Veteran's service treatment records, during a period of active duty for training, show treatment in March 1980 for right knee pain, which had bothered the Veteran for the prior week. The Veteran's service treatment records also show treatment for a right knee sprain in July 1996, as a result of an injury suffered while leaping down stairs. The Veteran's service treatment records also contain various references to a "trick" or locked knee, as well. See, e.g., June 1998 Retirement Examination. The Board notes that the Veteran was provided VA examinations in March 2020. The examiner noted the Veteran's diagnosis of a right knee sprain in July 1996, but did not consider the Veteran's March 1980 treatment record. The March 2020 examiner also failed to provide an adequate rationale when she concluded that the Veteran's condition began after entering the military. On remand, the examiner should also consider the Veteran's lay statements from his Board hearing testimony that he incurred his right knee disability in service and has suffered from symptoms continuously. The Board notes that lay testimony is competent when it regards the features or symptoms of a disability, which are within the realm of personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470. (1994). Additionally, no medical opinion has yet been obtained addressing whether the Veteran's right knee disability is secondary to his service-connected degenerative arthritis with chronic lumbosacral strain, left knee patellofemoral pain syndrome, right ankle sprain, or radiculopathy, to specifically include as a result of altered gait as a result of these disabilities. On remand, the examiner must consider the Veteran's 1980 service treatment records reporting knee pain, his statements regarding symptoms he reports experiencing since service, and the Veteran's contentions regarding secondary service connection. 7. Entitlement to service connection for a sleep disability, to include narcolepsy and sleep apnea is remanded. The Veteran's claim of service connection for a sleep disability, to include narcolepsy and sleep apnea was previously characterized as a claim of service connection for sleep apnea alone. To ensure that any potential diagnosis of narcolepsy is considered, the Board has broadened and recharacterized the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends that he incurred a sleep disability while in-service, possibly narcolepsy. The Veteran's service treatment records show complaints of excessive daytime somnolence in December 1989, with a recommendation that the Veteran follow up with a sleep study to rule out narcolepsy and central hypersomnia. It does not appear that a record of the sleep study, if conducted, is available. The Veteran's service treatment records also show complaints of sleep attacks of five to ten days occurring over six years. While in service, the Veteran described these sleep attacks as occurring while standing, stopped in the car, at lights, while talking; and, he also was diagnosed as having a history positive for hypnagogic hallucinations. The Veteran's VA treatment records show that, in January 2016, the Veteran requested a sleep study on account of only sleeping three to four hours, struggling to get back to sleep, and experiencing daytime tiredness. It is unclear whether this sleep study, as well, was performed, as a pertinent sleep study has not been associated with the claims file. Additionally, a sleep study performed in April 2013 failed to show significant evidence of sleep disordered breathing, according to the August 2017 examiner. Although the August 2017 examiner considered the issue of whether the Veteran's in-service symptoms of tiredness and sleep attacks were related to sleep apnea, the examiner did not consider whether the Veteran's symptoms bore an etiological relationship to an alternative sleep disorderto specifically include narcolepsy. As the August 2017 examination does not adequately address the Veteran's contentions, it is necessary to remand for a new examination to consider all theories of entitlement. 8. Entitlement to service connection for a heart condition is remanded. The Veteran essentially contends that he receives treatment for a heart condition, which is related to incidents of chest pain he experienced while in service. Alternatively, the Veteran contends he has a heart disability, which has been caused or aggravated secondary to a service-connected anxiety disorder. See April 2021 Board Hearing Transcript. The Veteran's service treatment records show reports of chest pain in January 1984, a notation from April 1987 of "no significant history except the chest pain episodes that occur approximately once a year," a notation from December 1991 that the Veteran had experienced chest pains, which were diagnosed as stress, and a March 1998 retirement examination indication that the Veteran's heart was "abnormal" on account of "LII/VI systolic M LVB." Concerning a current disability, the Veteran's private treatment records show that the Veteran received care for his heart condition in January 2018 for hypertension, palpitations, and history of transient ischemic attack. The Veteran was examined in August 2017. The examiner noted diagnoses of decreased cardiac output; tissue perfusion cardiopulmonary, altered, and atypical angina. However, the examiner did not provide an etiology opinion upon which the claim can be evaluated, as the examiner reasoned that it was questionable to provide etiology opinions because the diagnoses were not codable. On remand the Veteran should be afforded a new examination, and a new opinion should be obtained which considers the March 1998 retirement examination report indicating that the Veteran's heart was "abnormal" on account of "LII/VI systolic M LVB." 9. Entitlement to service connection for hypertension is remanded. The Veteran contends that he recalled having several elevated blood pressure readings while in service. See April 2021 Board Hearing Transcript. The Veteran's private treatment records show that the Veteran received care for his heart condition in January 2018 for hypertension, palpitations, and history of transient ischemic attack. This issue is inextricably intertwined with the issue of service connection for a heart condition as a heart condition could be implicated in causing or aggravating hypertension, and as the Veteran has received treatment for both conditions from the same heart clinic; thus, these issues must be remanded concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). 10. Entitlement to service connection for residuals of a stroke is remanded. The Veteran contends that he suffered a stroke as a result of hypertension. See April 2021 Board Hearing Transcript. This issue is inextricably intertwined with the issue of service connection for both a heart condition and hypertension, and must be remanded as well. The matters are REMANDED for the following action: 1. Provide the Veteran with a right hip examination to assess the nature and etiology of any disability other than sciatica, to include arthritis. The examiner should take a history from the Veteran as to the progression of the disability. Upon review of the record and after examination and interview of the Veteran, please respond to each of the following: Is it at least as likely as not (approximately 50 percent probability) that the Veteran has a right hip disability other than sciatica, to include arthritis that had onset in, or is otherwise related to his active service? b) Is it at least as likely as not that the Veteran has a right hip disability other than sciatica, to include arthritis that was caused or aggravated by another service-connected disability, to include his lumbar spine, knee, ankle or foot disabilities? The examiner should consider whether overcompensation or altered gait due to a service-connected disability played a causal or aggravating role in the development of a right hip disability. All opinions should be supported by a medical explanation or rationale. 2. Provide the Veteran with a eye examination to assess the nature and etiology of any eye disability. The examiner should take a history from the Veteran as to the progression of his claimed disability. Upon review of the record and after examination and interview of the Veteran, please respond to each of the following: a) Please clarify all current eye disabilities, to specifically include indication as to whether the Veteran has glaucoma. b) For each disability, is it at least as likely as not (approximately 50 percent probability) that the disability had onset in, or is otherwise related to his active service? Please consider the Veteran's in-service treatment for blurred vision. All opinions should be supported by a medical explanation or rationale. 3. Provide the Veteran with an examination for his gout. The examiner must review the entire claims file, to include a copy of this examination. After reviewing the claims file, the examiner must respond to the following: Is it at least as likely as not that the Veteran's gout had its onset in service, or is otherwise related to service? In providing a response, the examiner is asked to specifically address the VA treatment note from November 2019, noting a history of "gout from 40 years, started in military." All opinions should be supported by a medical explanation or rationale. 4. Provide the Veteran with an examination to assess the current level of severity of his bilateral hearing loss disability. 5. Provide the Veteran with an examination to assess the current level of severity of his degenerative arthritis with chronic lumbosacral strain. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on degree of range of motion lost, if any, based on the other evidence of record and the Veteran's statements. 6. Provide the Veteran with an examination for his right knee disability. The examiner must review the entire claims file, to include a copy of this examination. The examiner is asked to respond to the following: (a.) Please identify all current disabilities of the Veteran's right knee. (b.) Is it at least as likely as not that any identified disabilities had onset during service, or are otherwise related to service? (c.) Is it at least as likely as not that any identified disabilities are caused or aggravated by the Veteran's service-connected disabilities, including degenerative arthritis with chronic lumbosacral strain, left knee patellofemoral pain syndrome, right ankle sprain, pes planus, or radiculopathy, to specifically include as a result of altered gait due to these disabilities? In so doing, the examiner is specifically asked to address the Veteran's service treatment records from March 1980 showing treatment for right knee pain, as well as the July 1996 right knee sprain, and the Veteran's reports of experiencing a "trick" or locked knee, including at his June 1998 retirement examination. All opinions should be supported by a medical explanation or rationale. 7. Provide the Veteran with a sleep conditions examination. The examiner must review the entire claims file, to include a copy of this examination. The examiner is asked to respond to the following: (a.) Please identify all current sleep conditions affecting the Veteran, to specifically include narcolepsy. (b.) Is it at least as likely as not that identified disabilities had onset in, or are otherwise related to the Veteran's period of service? In responding to the above questions, the examiner is specifically asked to address the Veteran's service treatment records from December 1989, showing a recommendation that the Veteran follow up with a sleep study to rule out narcolepsy and central hypersomnia, and showing a history positive for hypnagogic hallucinations and his records showing his complaints of sleep attacks (occurring while standing, stopped in the car, at lights, while talking). All opinions should be supported by a medical explanation or rationale. 8. Provide the Veteran with a heart conditions examination and a hypertension examination. The examiner must review the entire claims file, to include a copy of this examination. The examiner is asked to respond to the following: (a.) Please identify all current heart disabilities affecting the Veteran, and confirm whether the Veteran has hypertension. (b.) Is it at least as likely as not that any heart disabilities or hypertension had onset in, or are otherwise related to the Veteran's period of active duty service? (c.) Is it at least as likely as not that any heart disabilities or hypertension are caused or aggravated by the Veteran's service-connected anxiety disorder? In responding to the above questions, the examiner is specifically asked to address the Veteran's service treatment records showing reports of chest pain in January 1984, a notation from April 1987 of "no significant history except the chest pain episodes that occur approximately once a year," a notation from December 1991 that the Veteran had experienced chest pains, which were diagnosed as stress, and a March 1998 retirement examination indication that the Veteran's heart was "abnormal" on account of "LII/VI systolic M LVB." All opinions should be supported by a medical explanation or rationale. 9. Thereafter, and after any additional development deemed necessary, readjudicate all issues remaining on appeal, to include entitlement to service connection for residuals of a stroke. If any benefits sought remain denied, send the Veteran and his attorney a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.