Citation Nr: 21067028 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-40 106 DATE: November 3, 2021 ORDER Entitlement to service connection for an upper respiratory disability, diagnosed as sinusitis and allergic rhinitis, is granted. Entitlement to service connection for obstructive sleep apnea, secondary to service-connected posttraumatic stress disorder (PTSD) and upper respiratory disabilities, on a causation basis, is granted. Entitlement to service connection for hypertension, secondary to service-connected PTSD and obstructive sleep apnea, on a causation basis, is granted. FINDINGS OF FACT 1. The Veteran is presumed to have been in sound condition at service entry, this presumption has not been rebutted, and the evidence indicates that the Veteran's diagnosed upper respiratory disability had its onset in active service. 2. The Veteran's obstructive sleep apnea is caused by service-connected PTSD and upper respiratory disability. 3. The Veteran's hypertension is caused by service-connected PTSD and obstructive sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for an upper respiratory disability, diagnosed as sinusitis and allergic rhinitis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for obstructive sleep apnea, secondary to service-connected PTSD and upper respiratory disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310. 3. The criteria for service connection for hypertension, secondary to service-connected PTSD and obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to March 1989 and May 2005 to August 2006 with additional service in the United States Army Reserves. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded the matters for further evidentiary development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may 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). 1. Upper Respiratory Disability In this case, the evidence of record indicates that the Veteran has a current respiratory disability. Specifically, a December 2019 VA examination report shows a diagnosis of allergic rhinitis. Additionally, a February 2020 private treatment records show a diagnosis of chronic sinusitis. Thus, the Board finds that the first requirement of service connection has been met. At the Veteran's January 1987 enlistment examination, no pertinent abnormalities were noted. A May 2005 private treatment record shows complaints of cough and sinus congestion, and a diagnosis of sinus infection. The Veteran's service treatment records (STRs) show complaints of cough and frontal sinus in June 2005. Multiple visits for treatment of sinus infection, allergy, and nasal congestion are shown in June 2006. In his July 2006 Post-Deployment Health Assessment, the Veteran reported sinus drainage for two weeks prior to leaving Iraq. Additionally, a December 2006 Post-Deployment Health Reassessment noted the Veteran's continuing complaint of congestion. In an August 2014 statement, the Veteran reported that during deployment and upon his return in 2006 and 2007, he suffered from sinus issues, and continues to suffer symptoms of pain, nasal congestion, nasal discharge, headaches, and the repeated use of antibiotics to alleviate the condition. In a February 2015 statement, the Veteran asserted that he was diagnosed with a sinus infection while on active duty, and his condition has subsequently worsened upon his return with 25 diagnoses of sinus and respiratory illnesses since 2006. The evidence in the STRs, along with the Veteran's competent statements are sufficient to meet the second element of the service connection claim. In a May 2017 VA medical opinion, the clinician opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The clinician explained that the Veteran suffered one complaint during deployment in June 2005, which showed frontal sinus complaints. The clinician further explained that the Veteran had an isolated incident while in military where he suffered an URI with signs and symptoms sinus congestion, sore throat, palpable anterior cervical lymph nodes and cough in 2005. The veteran, on that occasion, was treated conservatively and recovered without residual effects. The clinician noted the episode was acute and transient without persistent or recurrent sequelae. Also, the URI condition is a constellation of signs and symptoms, it is not acute sinusitis or allergic rhinitis. The clinician further noted the conditions are comorbid, separate and independent of each other. In December 2019, the Veteran was afforded a VA examination. The examiner opined that the conditioned claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained the Veteran has the condition of allergic rhinitis, and in regard to the claimed condition of sinusitis, the Veteran does not meet diagnostic criteria for chronic sinusitis. The examiner noted that based on the time of onset of this condition of allergic rhinitis, the diagnosed condition of allergic rhinitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner further opined that the Veteran's allergic rhinitis was less likely than not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that per review of medical records to include review of progress notes showing treatment for upper respiratory infections after his deployment in Southwest Asia, this examiner is unable to find any evidence that the condition of allergic rhinitis was aggravated beyond what is expected for the natural course of disease progression. In a February 2020 letter, private Dr. J.J. reported that after review of the Veteran's medical records, it is his opinion that the Veteran's medical conditions are complex and could be related to his tour of duty in Iraq. Dr. J.J. explained that the Veteran has been under his care since 2008 and has a diagnosis of chronic sinusitis. Dr. J.J. further explained that although the Veteran suffered from rhinitis prior to his departure to Iraq, his records indicate a significant increase of sinus infections upon his return from Iraq. In this case, the Board finds both the May 2017 and December 2019 VA opinions are of no probative values. The May 2017 VA medical opinion is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the STRs shows treatment for upper respiratory condition in June 2005 and multiple visits for treatment of sinus infection, allergy, and nasal congestion in June 2006. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (if the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely) (citing Reonal, 5 Vet. App. at 461). Additionally, every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. At the Veteran's January 1987 enlistment examination, no pertinent abnormalities were noted. Thus, the Veteran was presumed sound when he entered service and that presumption can only be rebutted with clear and unmistakable evidence of both preexistence and lack of aggravation. There is no evidence of lack of aggravation in this case. With respect to both the May 2017 and December 2019 VA opinions, the clinicians failed to consider the Veteran's competent and credible statements of the onset of his respiratory symptoms during active service, and the continuation of symptoms in the years since service. At this point, a request for another opinion 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"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Although Dr. JJ did not provide a detailed rationale for his opinion, he nonetheless concluded based upon an examination of the Veteran and medical evidence, the current upper respiratory disability was related to active service. The opinion is thus entitled to some probative weight. See 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); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, although could be terminology was used, to the extent that this did not meet the at least as likely as not standard reflected in 38 U.S.C. § 5107 (b), it is nevertheless evidence in support of the claim. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as evidence of whether the disorder was incurred in service). There is no contrary medical opinion in the evidence of record and no other probative evidence of record which attributes the Veteran's current respiratory disability to any other cause. Accordingly, in light of the upper respiratory disability diagnosis, STRs, Veteran's lay statements, February 2020 private opinion, and resolving reasonable doubt in the Veteran's favor, service connection for upper respiratory disability, diagnosed as sinusitis and allergic rhinitis is warranted. 38 U.S.C. § 5107 (b). 2. Obstructive Sleep Apnea The Veteran contends that his obstructive sleep apnea is secondary to service-connected disabilities. For the following reasons, the Board finds that service connection is warranted. The evidence of record demonstrates a current obstructive sleep apnea disability. For example, a May 2010 private treatment records show a diagnoses of obstructive sleep apnea. Additionally, a September 2017 VA clinical record shows a diagnosis of obstructive sleep apnea. In a May 2017 VA medical opinion, the clinician opined that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of the PTSD or frontal sinus condition. The clinician noted that the Veteran was not available to be interviewed and examined, therefore, the Virtual VA/VBMS as well as all pertinent records were examined. The clinician explained that the Veteran has sleep apnea diagnosed after service. Also, sleep apnea is a condition with a specific established diagnostic criterion and is not diagnosed by the simple complaint of fatigue, tiredness, sleepiness or other nonspecific complaints. The clinician, however, concluded that PTSD or frontal sinus condition are listed causes of sleep apnea. In a February 2020 letter, private Dr. J.J. reported that the Veteran had been under his car since 2008 and was diagnosed with sleep apnea in May 2010 and August 2011. He referred the Veteran to have sleep studies conducted after he underwent surgery to remove adrenal masses in February 2009, which did not alleviate or improve his hypertension. Dr. J.J. stated he cannot definitively attribute his sleep apnea diagnosis to his military service; however, episodes of sinusitis aggravate the use of CPAP needed to treat his sleep apnea. Although the VA clinician provided a negative opinion for obstructive sleep apnea, however, reading the opinion as a whole and in the context of the evidence of record, it is reasonable to infer from the VA clinician's rationale that the Veteran's obstructive sleep apnea is caused by PTSD or frontal sinus condition. See 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); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). For the foregoing reasons, the Board finds that the VA nexus evidence for PTSD, along with the private opinion is approximately evenly balanced. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for obstructive sleep apnea, secondary to service-connected PTSD and upper respiratory disability, on a causation basis, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Hypertension The evidence of record demonstrates a current hypertension disability. Specifically, a February 2014 VA examination report shows a diagnosis of hypertension. In January 2015 the Veteran reported that his sleep apnea is aggravating his high blood pressure. He noted that his hyperaldosteronism surgery to remove tumors from his kidneys in 2009 did not alleviate his high blood pressure as his doctors anticipated, because sleep apnea is linked to causing his high blood pressure. In a February 2015 statement, the Veteran reported that he was diagnosed with high blood pressure prior to active duty, however, there is definitive medical evidence indicating a high association between sleep apnea and resistant hypertension by induing hyperaldosteronism. He noted being diagnosed with hyperaldosteronism in December 2008, and in February 2009, he underwent surgery to remove tumors from kidneys which doctors attributed to causing his hyperaldosteronism. The Veteran further noted the tumors were successfully removed alleviating his high blood pressure with a prognosis ending the daily regimen of two medications. The Veteran indicated that his medication regimen not only continued, but he is now on an additional drug. The Veteran asserted that numerous studies link sleep apnea to causing resistant hypertension or hyperaldosteronism, in his case, aggravating his high blood pressure resulting in additional medication. The Veteran was afforded a VA examination in December 2019, at which he was diagnosed with primary hyperaldosteronism with secondary hypertension status post laparoscopic left adrenalectomy with persistent hypertension. The examiner opined that the Veteran's diagnosed condition was less likely than not proximately due to or the result of the Veteran's service-connected PTSD and/or his claimed upper respiratory disability diagnosed as sinusitis and allergic rhinitis. The examiner's rationale was he was unable to find any medical evidence that the conditions of Veteran's service-connected PTSD and/or his claimed upper respiratory disability diagnosed as sinusitis and allergic rhinitis cause or progress to primary hyperaldosteronism with secondary hypertension. The examiner did not provide an opinion addressing whether hypertension was aggravated by service-connected disabilities. In a February 2020 letter, private Dr. J.J. reported that the Veteran has been under his care since 2008 and has a diagnosis of hypertension. He underwent surgery to remove adrenal masses in February 2009, which did not alleviate or improve his hypertension. Dr. J.J. noted that the Veteran has been treated for hypertension prior to his active service, and his hypertension is probably multifactorial and could include essential hypertension and sleep apnea. Dr. J.J. further noted that the Veteran's hypertension is also possibly related to his PTSD with chronic sleep impairment as diagnosed by the VA in 2014. Dr. J.J. opined that it is quite possible the Veteran's hypertension is related to a combination of essential hypertension, obstructive sleep apnea and PTSD with chronic sleep deprivation. In this case, the Board finds the December 2019 VA opinion is inadequate because it relied on the absence of contemporaneous medical evidence and did not properly consider the Veteran's contentions of how his service-connected disabilities affects his hypertension. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). It is thus of little if any probative value. At this point, a request for another opinion 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"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Although Dr. J.J. did not provide a detailed rationale for his opinion, he nonetheless concluded based upon an examination of the Veteran and medical evidence, the Veteran's hypertension is related to his service-connected PTSD and obstructive sleep apnea disabilities. The opinion is thus entitled to some probative weight. See 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); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, although possible terminology was used, to the extent that this did not meet the at least as likely as not standard reflected in 38 U.S.C. § 5107 (b), it is nevertheless evidence in support of the claim. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as evidence of whether the disorder was incurred in service). There is no contrary medical opinion in the evidence of record. For the foregoing reasons, the private opinion indicating that the Veteran's hypertension is caused by his service-connected PTSD and obstructive sleep apnea provide a sufficient basis to grant service connection for hypertension. Thus, service connection for hypertension secondary to service-connected PTSD and obstructive sleep apnea is warranted on a causation basis. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.