Citation Nr: 21068001 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-17 953 DATE: November 8, 2021 ORDER Entitlement to service connection for a respiratory condition with sinus involvement, nasal congestion, including allergic rhinitis, sinusitis, status post turbinate resection residuals, is granted. REMANDED Entitlement to service connection for essential tremors is remanded. FINDING OF FACT The Veteran has allergic rhinitis, to include residuals of a turbinate resection, which is related to service CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for rhinitis, sinusitis, turbinate resection residuals, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to March 1968. His Military Occupational Specialty (MOS) was as a nuclear trained submarine machinist mate and was also trained in pump maintenance, refrigeration, and air conditioning while serving on the U.S.S. James K. Polk Nuclear Submarine. See DD 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. In January 2021, the Board remanded these issues for new VA examinations. That development is complete in substantial compliance with remand directives. See Stegall v. West, 11Vet. App.268, 271 (1998). 1. Entitlement to service connection for allergic rhinitis, to include residuals of turbinate resection Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To grant service connection, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the two. Hickson v. West, 12 Vet. App. 247, 252 252 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence is in equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that his breathing problems began in service, and that sinus irritation issues ultimately resulted in undergoing a nasal turbinate resection surgery. The Veteran asserted that he developed these problems from service- related exposure to secondhand cigarette smoke, and a number of environmental contaminants present on a submarine. See August 2018 Statement; see also August 2018 Board Hearing Transcript, pgs. 8-11. He has reported that he has had upper respiratory difficulties from service to the present. See VA Form 21-0958, Notice of Disagreement, September 30, 2015. Regarding the first element of service connection, the Veteran currently has a diagnosis of chronic allergic rhinitis. See March 2021 VA Examination, pg. 2. Regarding the second element of service connection, an inservice incurrence, the Veteran was treated for sinus congestion and malaise while in service and referred for an ear, nose, and throat (ENT) examination. See July 1968 Service Treatment Record (STR). The examiner noted the Veteran had a narrow vestibule, "boggy nasal mucosa," and may need surgery. Further, the Veteran was treated for a sinus headache in August 1967. The Board finds that the Veteran's MOS is consistent with exposure to various chemicals and environmental contaminants. Therefore, the Board finds that the second element is met. Regarding the third element of service connection, a nexus to service, this matter was previously remanded for a new VA examination that considered the report of treatment since the 1970's and a 1968 VA examination noting boggy nasal mucosa with referral for a possible adenoidectomy. See January 2021 Board Remand (discussing July 1968 VA examination which noted significant findings). Further, the examiner was to address the opinion of Dr. V, who had been treating the Veteran since the 1970's for rhinitis and inflamed nasal mucosa. The Veteran was provided a new VA examination in March 2021. The March 2021 VA examiner in providing a negative nexus opinion, stated that STRs were silent for any treatment for sinus related issues. The examiner also reasoned that to provide a definitive cause of the Veteran's allergic rhinitis would lead to speculation as there is no documentation of the exact chemicals he was exposed to. See March 2021 VA Examination Opinion, pg. 2. Further, the examiner did not address evidence that Dr. V was treating the Veteran for allergic rhinitis and inflamed nasal mucosa since the 1970's. The examiner need not identify each chemical contaminant to blame but must address conflicting evidence. Therefore, the Board finds the opinion of no probative value because it is based on an inaccurate factual premise as inservice treatment was evident. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Weighing in the Veteran's favor is an opinion from Dr. V. which concluded that the Veteran's allergic rhinitis is related to service on a submarine. See Dr. V. Opinion, dated October 2016. Dr. V's opinion has some probative weight because he had been treating the Veteran for allergic rhinitis and inflamed mucosa since the 1970's. The Veteran also provided literature discussing the amount of chemicals and toxins that he was exposed to while working on a nuclear submarine as a machinist mate. While Dr. V.'s opinion did opine to the as likely as not standard, it is of probative value because he treated the Veteran for numerous years, was familiar with his history, condition and records, and was based on sound medical reasoning. The Board observes that the preponderance of the probative evidence is not against the claim. Given the high probability of environmental exposures consistent with the conditions of his service, in conjunction with a positive nexus opinion, the Board finds service connection is warranted. The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for essential tremors is remanded. This matter was previously remanded by the Board for a new examination to determine the nature of Veteran's condition, whether it was preexisting or not, whether a congenital defect or disease, and ultimately whether it is service related. A March 2021 VA examiner stated that the Veteran has been diagnosed with a neurological disorder: essential tremor. The examiner indicated that the Veteran is on continuous medications for essential tremor: Propranolol. The Board notes that while Propranolol is commonly used to treat hypertension, it has been used to treat essential tremor from Parkinson's Disease. See Propranolol for essential tremor: Drugs Used to Treat Essential Tremor in Parkinson's, WebMD, found at www.webmd.com/epilepsy/guide/essential-tremor-drug. The Veteran reported that a relative was diagnosed with Parkinson's. However, the examiner noted prior examinations found no suggestion of Parkinson's or Parkinson's Plus Syndrome. See March 2021 VA Examination Report, pg. 2. The examiner also did not address the conflicting positive nexus opinion by Dr. E.M.V., dated November 22, 2019. For these reasons, the Board finds the examination inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA also has a duty to give a sympathetic reading to filings, by determining all potential claims raised by the evidence, including investigating reasonable and apparent causes of a condition. See Szermraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); see also Delisio v. Shinseki, 25 Vet. App. 45, 53 (2011). A claim may be expanded beyond lay descriptions to include any disorder reasonably encompassed by a claimant's description, symptoms a claimant describes, and the information submitted or obtained to support a claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this case, the Board notes that the nature and etiology of the Veteran's condition has not been clearly identified. His tremors have been associated with essential tremor, benign familial tremor, idiopathic Parkinson's, Parkinson's Plus, nervous disorder, congenital disorder, thyroid disorder, effects of thyroid medications, and possible attention deficit disorder referred to as "excess energy" in childhood. See January 2021 Board Remand, pgs. 2-5 (summarizing the medical evidence of record to date). The Board previously remanded this matter for an VA examination by a neurologist or other provider specializing in brain or nervous system disordersif reasonably possiblein order to assist in defining the Veteran's condition. See id. at pg. 14. However, it appears the examination request did not specify a neurologist or specialist in brain or nervous system disorders. See March 3, 2021 VA examination request, pgs. 1-2. The examination was ultimately completed by a General Practitioner. For all these reasons, the Board finds that a remand is needed for a new examination by a neurologist or specialist in disorders of the brain and nervous system. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new examination regarding his essential tremors with a neurologist or other medical provider who specializes in brain and nerve disorders. The examiner is asked to elicit a complete history from the Veteran regarding the condition, review this remand and note so in the examination report, note his/her specialty, and identify the nature and etiology of the Veteran's condition with any and all diagnoses that are relevant to his condition. 2. Thereafter, regarding each condition diagnosed the examiner should opine as to the following: a) Whether the Veteran's condition(s) is a congenital disease or a congenital defect. b) Whether the Veteran's statements regarding his childhood shakes and or tremor is clear and unmistakable evidence of his current condition, and that it pre-existed service. c) Whether there is clear and unmistakable evidence that the Veteran's condition(s) pre-existed military service. i. If so, is there clear and unmistakable evidence that the pre-existing condition(s) was NOT aggravated beyond its natural progression, by the Veteran's service. ii. If there is NOT clear and unmistakable evidence the Veteran's condition(s) preexisted service, the examiner shoulder opine whether the Veteran's condition is at least as likely as not (50% or greater probability) related to service. In providing the opinions, the examiner must address the following: (1) Veteran's MOS and conditions of service; (2) literature provided by the Veteran; (3) lay statements; (4) conditions of service including exposure to chemical and environmental hazards, smoke, organophosphates, fumes from fresh epoxy paint, new adhesives, anti-sweat insulation, hydrocarbons from lubricating oils, cooking vapors and carbon dioxide level; (5) October 2016 positive private nexus opinion that his upper extremity condition is related to exposure to environmental factors in submarines listed above; (6) all possible diagnoses, including Parkinson's, Atypical Parkinson's, any other central nervous system or movement disorder; (7) lay statement that his upper arm tremors began in his 40's; and (8) evidence of bilateral upper extremity weakness. The examiner is reminded that 'clear and unmistakable' evidence is undisputable evidence. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinions without resorting to speculation, the report should expressly indicate this, and explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is a result of a need for additional information, or diagnostic tests, the physician must identify the information needed. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.