Citation Nr: 21072083 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-43 847 DATE: December 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected prolactinoma with chronic fatigue, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and anxiety, to include as due to exposures to toxins at Camp Lejeune and/or as secondary to service-connected prolactinoma with chronic fatigue, is remanded. Entitlement to service connection for a lung disorder is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's allergic rhinitis has manifested to polyps. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from April 1986 to January 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In March 2019, the Board remanded the Veteran's claims for additional development. The Board notes there was substantial compliance with its March 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). However, while the Board regrets the additional delay, another remand is necessary for all claims on appeal, except for entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis. Initial Rating - Allergic Rhinitis The Veteran contends that his allergic rhinitis warrants a 30 percent rating as he now has polyps. Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding," is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. The Veteran was originally awarded service connection for allergic rhinitis by way of the January 2015 rating decision on appeal. An initial 10 percent rating was assigned under DC 6522. A 10 percent rating is assigned under this rating criteria for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. The highest rating of 30 percent is assigned for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. VA and private treatment records reflect complaints of nasal congestion, sneezing, constant watery nasal discharge, and a history of nasal obstruction, with treatments of nasal steroids and sinus rinses. However, no evidence of nasal polyps is shown. In October 2014, the Veteran was afforded a VA examination to assess his allergic rhinitis. The examiner noted the Veteran's reports of experiencing symptoms of a running nose associated with sneezing and watery eyes that occur throughout the year and is worse in the fall. Upon examination, the examiner found that continuous medication is required for control of his condition, and his rhinitis is greater than 50 percent obstruction of the nasal passage on both sides; but does not have complete obstruction on one side, nor any nasal polyps present. At the time of his May 2015 notice of disagreement, the Veteran reported that he does have polyps in his sinuses. In October 2020, the Veteran was afforded another VA examination to reassess his allergic rhinitis. The examiner noted the Veteran's reports of experiencing symptoms of a runny nose, nasal congestion, sneezing, and watery eyes that occur constantly. Upon examination, the examiner found that the Veteran's rhinitis is not greater than 50 percent obstruction of the nasal passage on both sides, does not have complete obstruction on one side, nor any nasal polyps present. Based on the above, the Board finds that the preponderance of the evidence is against a finding for a rating in excess of 10 percent for the Veteran's allergic rhinitis. The weight of the evidence is not sufficient to meet the criteria for the next-higher rating under DC 6522 during any period on appeal. Specifically, the relevant medical evidence of record, to include VA treatment records and examinations, show that the severity of the Veteran's allergic rhinitis manifested, at worse, to symptoms of without polyps, but greater than 50 percent obstruction of the nasal passage on both sides, which is commensurate of a 10 percent rating under DC 6522. As noted above, a higher 30 percent evaluation is only warranted for allergic rhinitis with polyps; however, the medical evidence of record does not reflect such symptoms. In fact, the record indicates that the Veteran's symptoms are improving, and not actually getting worse. The Board acknowledges the Veteran's statement that he has polyps in his sinuses, but this statement is heavily outweighed by the medical evidence reflecting otherwise. The preponderance of the evidence indicates, as noted above, that his rhinitis, at most, is greater than 50 percent obstruction of the nasal passage on both sides. Therefore, the Board concludes that a rating in excess of 10 percent for service-connected allergic rhinitis is not warranted; and the claim is denied. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that a higher rating for his allergic rhinitis is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher ratings. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Service Connection Sleep Apnea The Veteran contends that his sleep apnea is directly related to his active duty service; or is otherwise proximately caused or aggravated by his service-connected prolactinoma with chronic fatigue. After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist. In August 2020, the Veteran was afforded a VA examination to assess the current nature and etiology of his claimed sleep apnea. Upon examination, the examiner diagnosed the Veteran with obstructive sleep apnea; however, provided unfavorable opinions as to the condition being etiologically related to service on a direct or secondary basis. Nevertheless, the Board finds the VA medical opinion on a direct basis to be inadequate for adjudicative purposes, as the examiner improperly relied on the lack of specific medical evidence in-service corroborating complaints, treatment, or diagnosis of sleep apnea, as the sole basis for the providing the unfavorable opinion. Therefore, the Board finds that the Veteran should be provided an addendum VA medical opinion, prior to re-adjudication of the claim. Service Connection Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder that is directly related to his active duty service, to include as due to exposure to contaminated water and toxins at Camp Lejeune; or is otherwise proximately caused or aggravated by his service-connected prolactinoma with chronic fatigue. After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist. In July 2020, the Veteran was afforded a VA examination and medical opinions to assess the current nature and etiology of his claimed psychiatric condition. Upon examination, the examiner noted that the Veteran has not now or and has never been diagnosed with a mental disorder; and thus, provided unfavorable opinions as to the claimed psychiatric conditions, to include adjustment disorder and anxiety, being etiologically related to the Veteran's active service, based entirely on a lack of diagnosis. Nevertheless, the Board finds this VA examination and opinion to be inadequate for adjudicative purposes, as the examiner inaccurately noted that the Veteran has not now or ever been diagnosed with a mental disorder, as the competent and credible medical evidence of record reveals diagnoses of adjustment disorder and anxiety. Additionally, if the examiner's intention was to state a change in diagnosis from those given in the record, he must explicitly state so and provide an adequate rationale as to why this is the case, which the Board notes was not done here. Therefore, the Board finds that the Veteran should be provided an addendum VA medical opinion, prior to re-adjudication of the claim. Service Connection Lung Disorder The Veteran contends that he currently has a lung disorder that is directly related to his active duty service. After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist. In October 2020, the Veteran was afforded a VA examination to assess the current nature of the claimed lung disorder. Upon examination, the examiner diagnosed the Veteran with chronic obstructive pulmonary disease. In May 2021, the VA provided the Veteran an etiology opinion, which revealed unfavorable results as to the condition being etiologically related to his active duty service. Nevertheless, the Board finds the VA medical opinion to be inadequate for adjudicative purposes, as the examiner improperly relied on the lack of specific medical evidence in-service corroborating complaints, treatment, or diagnosis of a pulmonary disease, as a basis for the providing the unfavorable opinion. Therefore, the Board finds that the Veteran should be provided an addendum VA medical opinion, prior to re-adjudication of the claim. The matters are REMANDED for the following action: 1. Request that the Veteran identify all medical providers (VA and private) from whom he has received treatment for his sleep apnea, acquired psychiatric disorder, and lung disorder, and obtain any outstanding, non-duplicative records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not (probability of 50 percent or greater) related to the Veteran's military service, or at least as likely as not proximately caused or aggravated (worsened beyond natural progression) by the symptoms of his service-connected prolactinoma with chronic fatigue. The clinician should consider the Veteran's competent reports related to his history of symptoms when rendering this opinion. The clinician providing this report should provide a rationale for any opinion expressed. The Board leaves it up to the clinician providing the report as to whether another physical examination needs to be scheduled. 3. After associating all newly acquired records with the claims file, obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed psychiatric disorder. Identify and clearly describe all diagnoses related to the Veteran's acquired psychiatric disorder, to include adjustment disorder and anxiety. If a diagnosis is not found, the examiner must explicitly state so, and provide discussion/opinion on the determination to change the diagnosis from those shown in the medical evidence of record, to include the indications of anxiety and adjustment disorder shown in the clinical records. If a psychiatric disorder is diagnosed, the clinician is asked to opine whether the disorder is at least as likely as not (probability of 50 percent or greater) related to the Veteran's military service, to include the reported exposure to contaminated water and toxins at Camp Lejeune; or at least as likely as not proximately caused or aggravated (worsened beyond natural progression) by the symptoms of his service-connected prolactinoma with chronic fatigue. The examiner must consider the Veteran's statements that his behavioral health problems were a neurocognitive condition. The examiner should also consider the Veteran's reference to the Institute of Medicine which recommended to VA that it include neurocognitive disorders as a recognized secondary disability for veterans exposed to toxins at Camp Lejeune. The clinician should consider the Veteran's competent reports related to his history of symptoms when rendering this opinion. The clinician providing this report should provide a rationale for any opinion expressed. The Board leaves it up to the clinician providing the report as to whether another physical examination needs to be scheduled. 4. After associating all newly acquired records with the claims file, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's lung disorder, to include COPD, is at least as likely as not (probability of 50 percent or greater) related to the Veteran's military service. The clinician should consider the Veteran's competent reports related to his history of symptoms when rendering this opinion. The clinician providing this report should provide a rationale for any opinion expressed. The Board leaves it up to the clinician providing the report as to whether another physical examination needs to be scheduled 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.