Citation Nr: 21070201 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-49 457 DATE: November 23, 2021 ORDER Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for chronic sinusitis is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's allergic rhinitis likely as not began during active service. 2. The Veteran's chronic sinusitis likely as not began during active service 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's tinnitus is related to his active military service. 4. The Veteran does not have a hearing loss disability in either ear as defined by regulation. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. . The criteria for service connection for chronic sinusitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from August 1988 to August 1992. His awards and decorations include a Combat Action Ribbon. According to the Veteran's August 2017 VA Form 9, Appeal to Board of Veterans' Appeals, he requested a Board hearing in Washington, D.C. However, the Veteran withdrew his hearing request in a November 2019 communication. There are no additional hearing requests in the record; therefore, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704 (e). This matter comes to the Board of Veterans Appeals (Board) from an appeal of a November 2013 Rating Decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. As an initial matter, the Board notes that in August 2014 the Veteran submitted a VA Form 4138, in which he expressed dissatisfaction with the adjudicative determination by the RO in the November 2013 Rating Decision. The RO interpreted this document to be a claim to re-open the previously denied service connection claims. Thereafter, the RO issued a January 2015 Rating Decision, which denied the Veteran's service connection claims and the instant appeal ensued. A notice of disagreement is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the Agency of Original Jurisdiction and a desire to contest the result. A notice of disagreement is a jurisdictional predicate to the Board's adjudication of a matter, and the filing of a timely notice of disagreement initiates appellate review. See 38 C.F.R. § 20.302 and § 20.1103. Prior to March 24, 2015, informal notices of disagreement were recognized. 38 C.F.R. § 3.155. In this case, the Board finds that the Veteran's August 2014 VA Form 4138 constituted a timely informal notice of disagreement with the November 2013 Rating Decision. Specifically, the Veteran submitted the VA Form 4138 within one year of the November 2013 Rating Decision. Further, the Veteran identified sufficient disagreement with the November 2013 Rating Decision's denial of his claims. Accordingly, the Board finds that the November 2013 Rating Decision was properly disagreed with and did not become final. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, including sensorineural hearing loss and tinnitus, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for allergic rhinitis 2. Entitlement to service connection for chronic sinusitis The Veteran contends that his allergic rhinitis and chronic sinusitis began during his active military service and he seeks service connection. Turning to the record, the Veteran's service treatment records (STRs) are silent as to any diagnosis or treatment for allergic rhinitis or chronic sinusitis during active service. At the time of the separation examination in 1992, the examiner noted that the Veteran had normal sinuses. In August 2013, the Veteran was afforded a VA examination in connection with his claim. Diagnoses of chronic sinusitis and allergic rhinitis were rendered. The Veteran reported that his sinus disorders began right after the Gulf War. He indicated that he started having a lot of sinus drainage, congestion, and post-nasal drainage. His sinus disorders included recurrent sinus infections. In particular, the Veteran described that he had 3 sinus infections one year. The examiner found complete obstruction on one side due to rhinitis and permanent hypertrophy of the nasal turbinates. The examiner opined that the Veteran's allergic rhinitis and chronic sinusitis was at least as likely as not incurred in or caused by the Veteran's active military service. In support of this conclusion, the examiner explained that the Veteran reported a credible history of onset of sinus symptoms just after returning from the Gulf War. The examiner went on to explain that the environmental exposures from the Gulf War included large amounts of fine particulate matter as well as other airborne hazards which would have deposited in the sinus cavity, which acts as a respiratory filter. Therefore, the examiner found that it was the likely etiology of the Veteran's ongoing sinus disorders since 1992. The Board notes that VA issued an interim final rule effective on August 5, 2021 that amended its adjudication regulations under 38 C.F.R. § 3.320 to establish presumptive service connection for three chronic respiratory health conditions (asthma, rhinitis, and sinusitis (to include rhinosinusitis)) in association with exposure to fine particulate matter for Gulf War Veterans who served in Southwest Asia theatre of operations from August 1990 until the present time that manifest to any degree within 10 years from the date of separation. Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42,732 (August 5, 2021). This provision applies to all applications for service connection for asthma, rhinitis, and sinusitis based on Southwest Asia that were pending before VA on or after August 5, 2021. For the presumption to apply, the Board must determine whether the Veteran has qualifying service in Southwest Asia and a diagnosis of rhinitis within 10 years from the date of separation. In this instance, the Board finds that the service connection for allergic rhinitis and chronic sinusitis is warranted on a direct basis. Specifically, the August 2013 VA examiner determined that the Veteran's exposure to particulate matter during service in the Gulf War provided the most likely etiology for this later sinus disorder. While the Veteran had service in Southwest Asia and had a diagnosis of rhinitis within 10 years of the date of separation, the positive nexus opinion of record is highly probative in support of a grant of service connection on a direct basis. Accordingly, the Veteran's claims for service connection for allergic rhinitis and chronic sinusitis are granted. 3. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which he asserts was incurred during his active military service. His STRs are silent for any complaint, diagnosis, or treatment for tinnitus during active military service, to include at service separation. While the Veteran's DD-214 shows that his Military Occupational Specialty was "food service specialist," it also shows that he was assigned to 3rd Battalion, 10th Marine Regiment ("3/10"), an artillery battalion, and served in support of Desert Storm/Shield between December 1990 and May 1991. At the August 2013 VA examination, the Veteran reported that he first noticed intermittent right ear tinnitus 20 years ago, which sets the onset in approximately August 1993, a year after the Veteran was separated from service. After diagnosing tinnitus, the VA examiner opined that the Veteran's tinnitus was less likely than not incurred in or caused by active military service because a worsening significant threshold shift was not seen in either ear, when the Veteran's hearing thresholds at service entrance and service separation were compared. Based on the absence of a worsening significant threshold shift in hearing during the Veteran's military service the Veteran's right ear tinnitus was less likely than not related to or caused by any military noise exposure. The Veteran is competent to testify that he developed ringing in his ears in service and that it has continued ever since. Tinnitus is a unique condition for which lay observation is competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) (on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). The Board finds no reason to question the credibility of the Veteran's assertions of tinnitus dating back to his time of active service. Moreover, the Board affords the August 2013 opinion little probative weight on the question of the etiology of the Veteran's tinnitus. The examiner noted the Veteran's report of a 20-year history of tinnitus, but did not address these competent and credible statements regarding the onset of tinnitus, or his in-service noise exposure as a member of a Marine artillery unit. As noted above, in-service noise exposure is consistent with the circumstances of the Veteran's service as documented by his service records, including the DD-214 which shows a combat deployment as a member of an artillery unit. 38 U.S.C. § 1154 (a). Despite the August 2013 VA examination's note that the Veteran has served as a firefighter, he has credibly reported that he began experiencing tinnitus shortly after service through the present time. There is no persuasive evidence of record indicating that such statements are not credible. Under these circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. 4. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss that is attributable to his active military service and he seeks service connection. Impaired hearing constitutes a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels. Higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered a disability eligible for service connection. 38 C.F.R. § 3.385. Turning to the record, the Veteran's STRs reveal that the Veteran did not have a record of hearing loss at the time of enlistment. Nor do the STRs demonstrate that the Veteran complained of or was treated for hearing loss while in service. Equally, at the time of his separation from service, the separation examination does not report that the Veteran had hearing loss. As noted above, the Veteran's MOS is noted as a food service specialist, but also that he served in a Marine artillery unit, to include an overseas combat deployment. The unit with which he served during the combat deployment is noted to be a "Howitzers unit" in the Veteran's VA Form 9. In August 2013, the Veteran was afforded a VA examination in connection with his claim. At the time of the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 0 5 LEFT -5 5 10 5 5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The average decibel loss was 4 in the right ear and 6 in the left ear. Further, the examination revealed that the Veteran had normal hearing bilaterally. Considering the evidence above, the Board finds that the evidence weighs against the claim for service connection for bilateral hearing loss disability. The audiology examinations of record did not show that the auditory thresholds in either of the Veteran's ears, in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz, had been 40 decibels or greater, or that the auditory thresholds for at least three of those frequencies in either ear were 26 decibels or greater during testing. Based on the above findings, the objective evidence of record indicates that the Veteran does not have a current bilateral ear hearing loss disability that meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385. While the Veteran's combat decoration and overseas combat deployment with a Marine artillery unit are noted, the competent evidence establishes that the Veteran does not currently have a bilateral ear hearing loss disability as defined by VA. 38 C.F.R. § 3.385. Therefore, service connection must be denied. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Accordingly, the Board finds that there is no audiological evidence of record to support a claim for service connection for bilateral hearing loss disability. The preponderance of the evidence is against his claim for service connection. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for headaches, to include as due to service-connected disabilities At the time of the August 2013 VA allergic rhinitis and chronic sinusitis examination, the examiner noted that the Veteran experienced headaches. To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed headaches. Therefore, the Board finds that with the grants of service connection for allergic rhinitis and chronic sinusitis elsewhere in this decision, and the reported headaches as documented in the August 2013 VA examination report, VA has a duty to provide the Veteran with a VA examination. 38 C.F.R. § 3.159 (c)(4) (2019); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the evidence need only "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Veteran asserts that he has PTSD as a result of his active military service. In his VA Form 9, he reported that he had recurring nightmares of events that occurred while he was deployed during Operation Desert Storm and Operation Desert Shield. The Veteran's service personnel records confirm a combat deployment from December 1990 to May 1991, and that he was issued the Combat Action Badge. The Veteran's service treatment records do not reflect complaints of psychiatric symptoms or a diagnosed psychiatric disability. Further, while the Veteran underwent a VA examination in August 2013, the nexus opinion provided by the examiner was negative. While finding the Veteran a credible historian, the examiner noted that the Veteran denied psychiatric symptomatology. This is inconsistent with the Veteran's report of recurrent nightmares of in-service events. While the VA examiner provided her opinion based on her review of the Veteran's claims file and records at the time, the additional information the Veteran's report of recurring nightmares as noted in his VA Form 9 suggests that the opinion does not consider the Veteran's entire symptom picture. Accordingly, remand is required so that an additional VA examination can be conducted considering all the Veteran's symptoms. Moreover, on remand, consideration must be given to whether the Veteran has an acquired psychiatric disability other than PTSD. Entitlement to service connection for obstructive sleep apnea The Veteran contends that he has sleep apnea attributable to his active military service. His STRs do not reflect complaints of sleep impairment or diagnosed sleep apnea. However, in his VA Form 9, he reported that he only sleeps 3-4 hours a night, awakes feeling fatigued, and has been told that he snores. He reported similar symptoms to the VA examiner. At the time of the August 2013 VA examination, the Veteran did not have a diagnosis of sleep apnea. The VA examination report notes that the VA examiner ordered a sleep study on the day of the examination. Neither the rating decision nor the Statement of the Case relevant to this issue indicates that the sleep study result was considered, or in the alternative, that the Veteran failed to report for the sleep study that was scheduled for him. Thus, at this time is it unknown whether the Veteran's complaints of sleep impairment are evidence of a sleep apnea diagnosis, related to his claimed acquired psychiatric disability, or something else. Remand is required to first obtain the sleep study ordered for the Veteran at the August 2013 VA examination, if it exists, and to conduct a new VA sleep apnea examination to get a nexus opinion based on a sleep study being conducted. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to address the nature and etiology of his headaches. Provide the examiner with access to the Veteran's electronic VBMS and Virtual VA claims files. The examiner must review the claims files and indicate in the report that they were reviewed. All indicated tests must be performed. The examiner should provide an opinion, based on the record, on whether it is at least as likely as not (a 50 percent or greater probability) that: (1) the Veteran's headache disorder had its onset in, is otherwise etiologically related to, or is aggravated by an event, injury, or disease during the Veteran's active service, or (2) the Veteran's headache disorder was caused or aggravated by a service-connected disability, to include the Veteran's service-connected allergic rhinitis and/or chronic sinusitis. A complete rationale should be provided for any opinion rendered. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 2. Request that the Veteran identify any past or current treatment for an acquired psychiatric disability. Obtain any records related to the identified treatment. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed acquired psychiatric condition, to include PTSD. If PTSD is diagnosed, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include events occurring during the Veteran's combat deployment. 4. Review the virtual health record for the sleep study ordered by the August 2013 VA examiner. If available, associate the record with the Veteran's claims file. If not available, this should be noted in the claims file. 5. Schedule the Veteran for a sleep study to determine if there is clinical evidence of sleep apnea. Thereafter, forward the Veteran's VA health record to a VA examiner and have them provide an opinion as to whether it is at least as likely as not that any diagnosed sleep apnea is related to the Veteran's military service. The Veteran's reports of sleep impairment symptomatology, to include duration and severity, should be considered in the context of providing this opinion. If the VA examiner determines that any diagnosed sleep apnea is not related to military service, the examiner should explain what other factors, if any, are the cause of the sleep apnea. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.