Citation Nr: 21066194 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-20 190 DATE: October 28, 2021 REMANDED Entitlement to service connection for rhinosinusitis, to include a secondary to service-connected obstructive sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 2002 to August 2006. This issue was previously before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) in April 2020, April 2021, and July 2021, when the Board remanded the issue to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. Entitlement to service connection for rhinosinusitis, to include a secondary to service-connected obstructive sleep apnea, is remanded. The Board, in its July 2021 remand, discussed that a new etiological opinion as to the Veteran's rhinosinusitis was required as the April 2016 and December 2020 VA opinions were inadequate. In the April 2016 opinion, the examiner opined that the Veteran's disability was not related to service, noting that there was a single event of sinusitis in December 2002 during service for which the Veteran was prescribed antibiotics and that, since that time, he has not required treatment with antibiotics. However, the Veteran's service treatment records reflect that he was treated for sinus problems twice during service, in February 2002, when he was diagnosed with an upper respiratory infection, and in December 2002, when he was diagnosed with sinusitis. The examiner failed to address the prior treatment for sinus problems during service. As to the issue of direct service connection, the Board, in its July 2021 remand, discussed that the VA examiner, in May 2021, opined that the Veteran's disability was not related to service, noting that his service separation examination was unremarkable for sinusitis or hay fever and that episodes of sinusitis during service were acute and did not demonstrate chronicity throughout service. The examiner acknowledged that the Veteran had been diagnosed with chronic sinusitis, however, the Board noted that the rationale explaining why that diagnosis is not related to the diagnosis for sinusitis noted during service was confusing. As to the issue of secondary service connection, the Board, in its July 2021 remand, discussed that in December 2020 and May 2021, VA examiners opined that the Veteran's disability was less likely aggravated by his service-connected obstructive sleep apnea. However, the examiners did not provide opinions as to whether the Veteran's disability was caused by his service-connected obstructive sleep apnea. The Board, in its July 2021 remand, directed the RO to obtain an adequate etiological opinion addressing each of the Board's inquiries. Specifically, the Board sought an opinion as to whether the Veteran's rhinosinusitis is related to service, considering his in-service treatment for respiratory problems documented in February 2002 and December 2002, and the January 2020 and February 2020 statements from a former service member and his spouse, respectively, as to the Veteran's sinus problems. The Board also sought an opinion as to whether the Veteran's rhinosinusitis was caused by or aggravated by his service-connected obstructive sleep apnea, to include use of the continuous positive airway pressure (CPAP) machine, considering the February 2020 statement from the Veteran's spouse that his use of the CPAP machine makes his sinus symptoms worse and a December 2013 VA report of sleep study noting 'comorbid chronic sinusitis.' The examiner was advised that there is no temporal requirement inherent in 38 C.F.R. § 3.310 (a) for claims for service connection on a secondary basis, and that the "primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Frost v. Sulkin, 29 Vet. App. 131, 138-39 (2017). In an August 2021, a VA examiner opined that the Veteran's disability was less likely related to service, as his in-service upper respiratory infection and sinusitis did not appear to be anything further than episodes of acute infections which are extremely common, especially when associated with seasonal fluctuations or increased viral load. The examiner discussed that the episodes took place in February 2002 and December 2002, and the balance of the Veteran's service treatment records, including his service separation examination, are silent for continued sinus-related diagnoses. The examiner discussed that the first definitive diagnosis is dated roughly seven years after separation from service. The examiner opined that the Veteran's disability is less likely proximately due to his service-connected obstructive sleep apnea, as per the December 2013 VA report of sleep study, sinusitis was "comorbid" which implies that it was already in existence at that time, and there is thus not a clear timeline to support the notion that his obstructive sleep apnea or use of CPAP preceded or caused his disability, and there is no medical literature to support a relationship. The examiner opined that the Veteran's disability is less likely aggravated by his service-connected obstructive sleep apnea, as there is no extensive documentation in the records of sinusitis chronically affecting the Veteran, save for an episode of acute sinusitis in December 2012, and a diagnosis of allergic rhinitis in August 2014, which overlaps considerably in symptomatology. The examiner discussed that there was no quantifiable or objective measurable increase in sinus symptoms and a follow-up VA sleep study in March 2014 was silent for any worsening or any sinus symptoms. The August 2021 VA opinion is inadequate. The examiner cited, as a basis for the negative direct etiological opinion, that the Veteran's service separation examination and the balance of his service treatment records, all silent for continued sinus-related diagnoses. The examiner has not considered or discussed the lay evidence of record, the January 2020 statement of the Veteran's fellow service member indicating that he had traveled with him on numerous occasions during service where they shared the same hotel during which the fellow service member witnessed the Veteran deal with severe sinus issues which caused face swelling, persistent runny nose, breathing difficulty, uncontrollable sneezing, and the need to carry handkerchiefs with him all the time. The examiner has not considered or discussed the February 2020 statement of the Veteran's spouse indicating that during service she witnessed the Veteran's nose and sinuses symptoms flaring, that he was constantly sneezing and would wake up with a crust over his nose that he could not breathe through. The Veteran's fellow service member and spouse both also asserted that the Veteran had difficulty breathing during sleep and continuously snored. The Veteran's attorney, during the April 2016 Decision Review Officer (DRO) Informal Hearing, asserted on the Veteran's behalf that he had sinusitis in service and has had it ever since. Also, the examiner, as a basis for the negative etiological opinion related to whether the Veteran's disability is proximately due to his service-connected obstructive sleep apnea, cited that the evidence implies that the Veteran's sinusitis was already in existence at the time of his diagnosis of obstructive sleep apnea, and there is thus not a clear timeline to support the notion that his obstructive sleep apnea or use of CPAP preceded or caused his disability. As the examiner did not consider or discuss the lay evidence of record as to long-standing sleeping difficulties, as described in the January 2020 and February 2020 statements of the Veteran's fellow service member and his spouse, respectively. Further, the examiner, as a basis for the negative etiological opinion related to whether the Veteran's disability is aggravated by his service-connected obstructive sleep apnea, cited that there was no quantifiable or objective measurable increase in sinus symptoms. The examiner did not consider or discuss the Veteran's report, during VA treatment in August 2014 that he could not use his CPAP machine during an allergy flare, as it made the symptoms worse, or the February 2020 statement of his spouse describing the same scenario. On remand, the RO should obtain an adequate etiological opinion as to the Veteran's disability that responds fully to the Board's inquiries below. The Board, in its July 2021 remand, also directed the RO to attempt to obtain and associate with the claims file the Veteran's VA treatment records dated from May 2013 to August 2013. In August 2021, the RO received a negative response from the VA Medical Center (VAMC) as to the cited records. However, it does not appear that the RO duly informed the Veteran of such, and on remand, the RO should do so. The Board notes here that the VA examiner, in the August 2021 opinion, cited VA treatment records dated in 2012. Review of the claims file indicates that the earliest VA treatment records are dated in August 2013. On remand, the RO should attempt to obtain the Veteran's VA treatment records dated prior to May 2013; as it is acknowledged that records dated from May 2013 to August 2013 have already been sought. As the Veteran's most recent VA treatment records available for Board review are dated in May 2021; on remand, the RO should obtain and associate with the claims file his updated VA treatment records. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records dated prior to May 2013 and dated since May 2021; duly notify the Veteran of any negative response from any VA facility. 2. Duly notify the Veteran that a negative response was received from the request for his VA treatment records dated from May 2013 to August 2013. 3. Then, forward the claims file the examiner who submitted the August 2021 VA opinion, or a suitable substitute, and obtain an adequate etiological opinion that responds fully to the Board's inquiries. If any examiner determines that a new physical examination of the Veteran is required, so schedule the Veteran. The examiner is asked to provide a response to the following and provide complete rationale for all opinions rendered: (a) Is the Veteran's disability, including, but not limited to, sinusitis, rhinosinusitis, and allergic rhinitis, at least as likely as not (at least 50 percent probability) related to his in-service sinus symptoms. The examiner must specifically consider and address: (1) the Veteran's February 2002 in-service upper respiratory infection; (2) the Veteran's December 2002 in-service sinusitis; (3) the January 2020 statement of the Veteran's fellow service member indicating that he had traveled with him on numerous occasions during service where they shared the same hotel during which the fellow service member witnessed the Veteran deal with severe sinus issues which caused face swelling, persistent runny nose, breathing difficulty, uncontrollable sneezing, (4) the February 2020 statement of the Veteran's spouse indicating that during service she witnessed the Veteran's nose and sinuses symptoms flaring, that he was constantly sneezing and would wake up with a crust over his nose that he could not breathe through; (5) the April 2016 DRO Informal Hearing report wherein the Veterans' attorney asserted on the Veteran's behalf that he had sinusitis in service and has had it ever since; and (6) the diagnosis of post-service chronic sinusitis in a patient with prior in-service and continued sinus symptoms. In providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (b) Is the Veteran's disability, including, but not limited to, sinusitis, rhinosinusitis, and allergic rhinitis, at least as likely as not (at least 50 percent probability) proximately due to his service-connected obstructive sleep apnea? The examiner must specifically consider and discuss the Veteran's long-standing sinus and sleep symptoms in existence prior to his diagnoses of chronic sinusitis and obstructive sleep apnea and is advised that there is no temporal requirement for secondary service connection, that the primary disability need not be service connected, or even diagnosed, at the time the secondary disability is incurred. (c) Is the Veteran's disability, including, but not limited to, sinusitis, rhinosinusitis, and allergic rhinitis, at least as likely as not (at least 50 percent probability) aggravated, i.e., worsened beyond its natural progression, by his service-connected obstructive sleep apnea? (Continued on the next page) The examiner must specifically consider and discuss the Veteran's report, during VA treatment in August 2014 that he could not use his CPAP machine during an allergy flare, as it made the symptoms worse, and the February 2020 statement of his spouse describing the same scenario. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.