Citation Nr: 21071610 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-22 010 DATE: November 30, 2021 ORDER Service connection for a deviated nasal septum with sinusitis is granted. Service connection for obstructive sleep apnea is granted. Service connection for erectile dysfunction is granted. Service connection for a right eye disability is denied. Service connection for gastroesophageal reflux disease (GERD), to include as secondary to medications taken for service-connected traumatic brain injury (TBI) with posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for a liver disability is remanded. FINDINGS OF FACT 1. The competent medical and other evidence of record reflects that it is at least as likely as not that the Veteran currently has a deviated nasal septum with sinusitis that can be attributed to service. 2. The competent medical and other evidence of record reflects that it is at least as likely as not that the Veteran currently suffers from obstructive sleep apnea and that the condition can be attributed to service. 3. The Veteran has suffered from erectile dysfunction during the pendency of his claim that was at least as likely as not secondary to medication taken to treat his service-connected hypertension. 4. The Veteran is not shown to have a right eye disability that was incurred in service or is otherwise related to service or his already service-connected TBI. 5. The Veteran's GERD was not incurred in service, is not otherwise related to service, and is not related to any known medication taken for his service-connected TBI. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for a deviated nasal septum with sinusitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for an award of service connection for a right eye disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for an award of service connection for GERD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 2002 to November 2002. He also had service in the U.S. Army Reserve, to include a period of active duty for training from January 2008 to August 2008. His decorations include the National Defense Service Medal. These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2015, August 2017, and January 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The original rating decision denying service connection for sleep apnea was issued in January 2017. After receiving additional evidence and a new application within a year, the RO confirmed and continued the prior denial in the August 2017 rating decision. See 38 C.F.R. § 3.156(b). The claim for service connection for a right eye disability was previously before the Board in March 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a deviated nasal septum with sinusitis. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current deviated nasal septum and sinusitis are due to service. There is no dispute that the Veteran has a current deviated nasal septum with chronic sinusitis. A January 2018 VA examination confirms the diagnosis. There is also no dispute that the Veteran is service connected for a TBI. A September 2015 rating decision granted service connection for TBI based on a September 2015 VA examination report finding that the Veteran suffered a head injury in June 2011 during physical training and weightlifting. There is medical opinion evidence which both supports and is against the Veteran's assertion that his deviated nasal septum and sinusitis are etiologically related to his TBI. Specifically, an October 2017 VA examiner found that the Veteran's deviated nasal septum was less likely than not proximately due to or the result of the Veteran's service-connected condition, finding that sinusitis was not a complication of TBI. A December 2017 VA examiner reached a similar conclusion, finding that the Veteran's septum deviation with chronic sinusitis was not due to or secondary to the service-connected TBI. On the other hand, a November 2017 opinion from a private nurse practitioner supports the claim, finding that the Veteran's TBI "most likely than not cause[d] the deviated septum." The examiner explained that the Veteran suffered trauma to the right side of his face during service while lifting weights, when a 45-pound plate hit him on the face in the vicinity of his eye, nose, and cheekbone. The Board finds no reason to doubt the qualifications of the VA examiners or the private nurse practitioner. Further, all clinicians involved in the assessments appear to have been familiar with the Veteran's medical history. None of the opinions were expressed in speculative or equivocal language. The Board finds that the medical evidence is at least in equipoise regarding whether the Veteran's current deviated nasal septum and associated sinusitis are etiologically related to service. Because the conflicting opinions give rise to a reasonable doubt, such doubt must be resolved in favor of the Veteran. 38 C.F.R. § 3.102. The appeal of this issue is granted. 2. Service connection for obstructive sleep apnea The Board finds that the evidence is at least in equipoise as to whether the Veteran's current obstructive sleep apnea is due to service. There is no dispute that the Veteran has a current obstructive sleep apnea diagnosis. An October 2015 sleep study confirms that. There is also no dispute that the Veteran is service connected for a TBI. As noted previously, a September 2015 rating decision granted service connection for TBI based on a September 2015 VA examination report finding that the Veteran suffered a head injury in June 2011 during physical training and weightlifting. There is medical opinion evidence which both supports and is against the Veteran's assertion that his sleep apnea is etiologically related to his TBI. Specifically, an August 2017 VA examiner found that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of the service-connected condition, finding that sleep apnea was not a complication of TBI. A December 2017 VA examiner reached a similar conclusion, finding that it was less likely than not that the Veteran's sleep apnea was caused by his service-connected TBI. On the other hand, a November 2017 opinion from a private nurse practitioner supports the claim, finding that the Veteran's sleep apnea is "most likely than not" caused by service. The examiner noted that shortly after the in-service accident, the Veteran's spouse noticed that the Veteran began snoring, gasping for air, and choking, and that he stopped breathing at times while sleeping. The Board finds no reason to doubt the qualifications of the VA examiners or the private nurse practitioner. Further, all clinicians involved in the assessments appear to have been familiar with the Veteran's medical history. None of the opinions were expressed in speculative or equivocal language. The Board finds that the medical evidence is at least in equipoise regarding whether the Veteran's sleep apnea is etiologically related to service. Because the conflicting opinions give rise to a reasonable doubt, such doubt must be resolved in favor of the Veteran. 38 C.F.R. § 3.102. The appeal of this issue is granted. 3. Service connection for erectile dysfunction The Veteran seeks to establish service connection for erectile dysfunction. He contends that his erectile dysfunction is secondary to his service-connected disabilities; specifically, to medication taken for his service-connected disabilities, to include hypertension. There is no dispute that the Veteran suffers from erectile dysfunction. See May 2020 VA examination report. There is also no dispute that he is service connected for hypertension. See April 2020 rating decision. The question for the Board is whether he has erectile dysfunction that began during service, is at least as likely as not related to an in-service injury or disease, or is secondary to a service-connected disability, to include as due to medication therefor. The Veteran was afforded a VA examination in November 2017. Asked to consider the relationship between erectile dysfunction and the Veteran's service-connected TBI, the examiner found that it was less likely than not that the erectile dysfunction was proximately due to or the result of the Veteran's TBI. Instead, the examiner opined that the condition was a complication of the Veteran's hypertension medication. More specifically, the examiner noted that erectile dysfunction was a side effect of Lisinopril. Another VA medical opinion was obtained in May 2020. The examiner considered the relationship between erectile dysfunction and other medications the Veteran took to treat his service-connected TBI. The examiner did not consider the relationship between the Veteran's erectile dysfunction and the use of Lisinopril other than to note that the Veteran was no longer taking Lisinopril and was currently prescribed Amlodipine. None of the medical opinion evidence explicitly refutes the November 2017 VA examiner's assessment that the Veteran was suffering from erectile dysfunction at that time due to the medication then used to treat his hypertension. Accordingly, as the evidence supports a finding that the Veteran has suffered erectile dysfunction as a result of service-connected disability during the pendency of his claim, the Board is satisfied that the criteria for an award of service connection for erectile dysfunction have been met. Cf. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The appeal of this issue is granted. 4. Service connection for a right eye disability The Veteran seeks to establish service connection for a right eye disability. He contends that the condition is due to head trauma incurred in service and/or is secondary to his service-connected migraine headaches and/or TBI. There is no dispute that the Veteran has a current right eye disability. A January 2020 VA examination report reflects a diagnosis of bilateral glaucoma. A prior September 2014 private examination revealed diagnoses of ocular hypertension, optic nerve cupping, central corneal scar, and mild hypertensive retinopathy. It was noted that those conditions could be predictors of future open-angle glaucoma. There is also no dispute that the Veteran suffered an in-service injury, specifically the head injury resulting in his service-connected TBI. See June 2011 service treatment records. Service records reflect a finding of periorbital eye pain. As to the nexus, or link, between the Veteran's current right eye disability and service, the Board notes that the remainder of his service records are devoid of any complaints of eye pain or vision problems. As noted, the Veteran was afforded a VA eye examination in January 2020. After examining the Veteran and reviewing the record, the examiner opined that the Veteran's current right eye disability, identified as glaucoma, was less likely than not related to service. The examiner also opined that the right eye disability was less likely as not caused or aggravated by the Veteran's service-connected TBI and/or migraine headaches. In support of those conclusions, the examiner noted, in essence, that the in-service complaint of right-sided pain was not specific to an ocular condition; that there was no evidence of in-service trauma to the right eye itself; and that the Veteran did not have a current right eye disorder and/or complaints that were separate and distinct from those affecting his left eye so as to support a finding that he had a unique right eye disorder that could be attributed to service or his already service-connected migraine headaches and/or TBI. Inasmuch as the examiner's opinion was based on an accurate understanding of the facts, and articulates reasons for the conclusion reached, the Board finds the opinion probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board has considered the Veteran's statements in this regard. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of his current right eye disability. In any event, the Board finds the VA examiner's opinion more probative. In view of the foregoing, the Board must find that the preponderance of the evidence is against the Veteran's claim. The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal of this issue must be denied. 5. Service connection for GERD The Veteran seeks to establish service connection for GERD. He contends that his GERD is secondary to his service-connected TBI; more specifically, to medication taken for his TBI. At the outset, the Board notes that the Veteran has reported that he takes, or has taken, promethazine, Fioricet, Anaprox, Hydrocodone, Oxaprozin, Vicodin, Sumatriptan, Gabapentin, and Motrin for his service-connected disabilities. The Veteran has been afforded multiple VA examinations in connection with his claim. In January 2018, a VA examiner opined that the Veteran's GERD was less likely than not incurred in or caused by his service-connected TBI. The opinion was based on review of the Veteran's medical records, but did not consider his medication. A May 2020 VA addendum opinion reiterated the January 2018 VA opinion, finding that due to a lack of a pathophysiological relationship between GERD and the development or aggravation of TBI with PTSD and migraine headaches, it was unlikely that the Veteran's GERD was due to or the result of his service-connected TBI. The examiner also opined that it was less likely than not that the Veteran's GERD was due to or the result of taking any of the medications noted above. Furthermore, the examiner found that it was less likely than not that the Veteran's GERD was aggravated beyond its natural progression by taking any of the listed medications. The Board finds the opinions of the January 2018 and May 2020 VA examiners highly probative and assign both significant weight. The opinions were based on review of the Veteran's records and addressed the Veteran's specific contentions. The examiner's findings are consistent with the record and supported by a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). There are no contrary medical opinions supporting a link between the Veteran's GERD and his service, or to his service-connected disabilities, including medications therefor. While the Veteran is competent to report symptoms he has experienced first-hand, including the onset of such symptoms, a determination as to whether his condition is related to other conditions, or medications taken for other conditions, is a complex matter requiring medical expertise. Here, there is no evidence that the Veteran has that expertise. In light of the foregoing, the Board must find that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal of this issue must be denied. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claim and to afford him every possible consideration. Entitlement to service connection for a liver disability The Veteran seeks to establish service connection for a liver disability. He asserts that the condition is secondary to his service-connected TBI, possibly due to the medications taken to treat his service-connected disability. The Veteran was afforded a VA examination in November 2017. The examiner opined that the claimed condition (fatty liver) was less likely than not proximately due to or the result of the Veteran's service-connected TBI condition. The examiner noted, in part, that fatty liver is not known to be caused by TBI and that recent laboratory tests were normal. While the November 2017 examiner provided some reasoning as to why it was less likely than not that the liver condition was caused by TBI, the Board finds the examiner's rationale lacking inasmuch as it contains no reference or analysis relative to the Veteran's medication for TBI. In addition, the examiner failed to address the question of aggravation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, there appears to be a question with respect to whether the Veteran has an actual disability of the liver, as defined under the law. An addendum opinion is required to fully address the Veteran's theory of entitlement. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to have the Veteran scheduled for a VA examination of his liver. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any liver abnormalities the Veteran has had at any time since September 2017 (when he filed his claim for service connection), to include fatty liver and hepatomegaly. Then, with respect to each such abnormality, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the abnormality has been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected TBI, to include the medication he has been prescribed for treatment of his TBI. The examiner should also offer an opinion as to whether the Veteran's has an identifiable disability of the liverin terms of a functional impairment of the liver that results in impairment of earning capacityas opposed to mere laboratory findings. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.