Citation Nr: 21072756 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-38 147 DATE: December 6, 2021 ORDER Entitlement to service connection for chronic sinusitis is granted. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for insomnia is denied. REMANDED Entitlement to service connection for chronic tachycardia (cardiovascular disability), to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The evidence demonstrates that the Veteran's chronic sinusitis had its onset during active service. 2. The objective medical evidence shows that the Veteran's OSA is not caused by an event, injury, or illness during active service, nor is it proximately due to, the result of, or permanently made worse beyond its natural progression by service connected disabilities. 3. There is no current insomnia disability that is not already rated as part of the Veteran's service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic sinusitis have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for OSA, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. As the claimed insomnia encompasses the same symptomatology as the Veteran's PTSD, the claim for entitlement to service connection for insomnia is denied. 38 U.S.C. § 7105(d); 38 C.F.R. § 4.14. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from May 2001 to July 2001, from February 2003 to August 2003, and from October 2008 to December 2009. The issues were previously remanded by the Board of Veterans' Appeals (Board) in April 2019 for further development. The Board notes that additional VA records were associated with the claims file following the September 2020 supplemental statement of the case (SSOC), relating to current treatment for the issues on appeal. However, given that the records relating to the Veteran's current disabilities are cumulative of the evidence already of record, a remand for initial AOJ review of this evidence is unnecessary. Cf. 38 C.F.R. § 20.1304(c) (requiring remand for initial AOJ review of pertinent evidence submitted after notification of certification of the appeal to the Board). The Board also notes that an addendum opinion was obtained regarding the issue of service connection for insomnia following the September 2020 SSOC; however, a new SSOC was issued in November 2020 addressing that issue. Accordingly, the Board will proceed with adjudication of the claims. Service Connection Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service, but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disorder. 38 C.F.R. § 3.310. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for chronic sinusitis The Veteran contends that he developed chronic sinusitis during his active duty service. The Board notes that the Veteran's service treatment records (STRs) reflect that the Veteran complained of sinus pressure beginning in December 2008, and a CT scan showed a diagnosis of sinusitis in April 2009. The Veteran was afforded a VA examination in April 2014, which reflected a diagnosis of sinusitis and chronic serious mucus retention cyst. The examiner noted that there was insufficient evidence to warrant or confirm a diagnosis of acute or chronic sinusitis or its residuals. The examiner noted that the Veteran had an acute transient sinusitis in January 2014, which resolved without residuals. The examiner noted that the Veteran reported episodic "sinus infection" since 2009, occurring approximately two to three times per year. The examiner also noted a September 2009 CT sinus impression, which revealed no significant sinus disease, and a small mucus retention cyst or poly in the left sphenoid sinus. Pursuant to the April 2019 Board remand which found the April 2014 VA examination to be inadequate, the Veteran was afforded another VA examination in November 2019. The examiner noted diagnoses of chronic sinusitis, small nasal septum spur, and slight nasal septal deviation. The examiner opined that the Veteran's chronic sinusitis, nasal septum spur, and deviation were at least as likely as not incurred during or a result of his active duty service. As rationale, the examiner stated that the record indicated complaints of sinus pressure and productive cough in December 2008 during service. Therefore, she opined that the Veteran's chronic sinusitis had its onset during service. Accordingly, the Board finds that the service records and the Veteran's credible statements of his clinical history demonstrate that he experienced sinusitis during service; the April 2019 VA examination establishes the diagnosis of a current disability of chronic sinusitis; and the opinion rendered in April 2019 is persuasive inasmuch as it is the only medical opinion that considered the in-service complaints of symptoms in conjunction with his clinical history, and establishes a nexus between the in-service complaints and the current chronic sinusitis. Thus, all three elements required for a grant of service connection are established, and service connection for chronic sinusitis is warranted. 2. Entitlement to service connection for OSA, to include as secondary to service-connected disabilities The Veteran seeks service connection for OSA, which he asserts is related to service and/or his service-connected PTSD. He has further asserted that his OSA is a result of his obesity caused by his service-connected PTSD and right knee disability. Evidence in the claims file shows that the Veteran's STRs do not reveal any complaint, diagnosis, or treatments for obstructive sleep apnea. A July 2012 sleep study reveals that the Veteran was diagnosed with mild obstructive sleep apnea and prescribed a CPAP machine. The Veteran has received follow-up treatment through the VA since that time as reflected by VA outpatient records. The Veteran was afforded a VA examination in April 2014, which reflected a diagnosis of OSA. The examiner opined that the Veteran's OSA was due to his body mass index (BMI). The Board acknowledges that on January 6, 2017, the General Counsel issued a precedential opinion which held that obesity could be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. VAOGCPREC 1-2017. In such cases where the issue is raised, the adjudicator should resolve three issues: (1) whether the service connected disability caused the veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC 1-2017. Thus, the Board remanded the claim in April 2019 for an addendum opinion addressing whether the Veteran's obesity was an intermediate step between the Veteran's service-connected right knee disability, PTSD, and the Veteran's OSA. In November 2019, an addendum opinion was provided. The clinician opined that the Veteran's OSA is less likely than not proximately due to or the result of the Veteran's service-connected condition(s). The examiner cited to medical literature indicating that there is a lack of scientific evidence supporting a causal or aggravating role for PTSD in the development of sleep apnea. He also addressed the articles submitted by the Veteran and his representative regarding PTSD and OSA. However, he stated that these articles indicated, at most, a correlation between veterans with PTSD and OSA, but there was no medical evidence to support a causal relationship between the two. Thus, he concluded that the Veteran's OSA is less likely than not caused by or aggravated by his service connected PTSD. He further opined that neither the Veteran's service-connected right knee disability nor his service-connected PTSD caused him to become obese. He stated that obesity is caused by overconsumption of calories rather than lack of physical activity, and that it is impossible to attribute his obesity to having a right knee disability or PTSD. He acknowledged the Veteran's statement that he ate too much because of his depression, but noted that the Veteran is not service connected for depression; but nevertheless, that a mental health condition such as PTSD, alone, would not cause the Veteran to become obese. Therefore, the examiner concluded that the Veteran's service-connected disabilities did not cause him to become obese, and thus, there was no nexus between his service-connected disabilities and his OSA on this basis. Another VA addendum opinion was obtained in August 2020, whereby the examiner opined that it is less likely than not that the Veteran's OSA was incurred in or caused by service, given that there is no evidence of symptoms during service and the first mention of OSA in medical records was in 2011, years after separation from service. The examiner also opined that it is less likely than not that the Veteran's OSA is proximately due to, or aggravated by, his service-connected disabilities. He acknowledged the medical articles submitted by the Veteran, but noted that they merely indicate that there may be a greater prevalence of OSA among persons with PTSD; however, no link has ever been found that directly connects PTSD to causing OSA. Further, he stated that the Veteran's service-connected PTSD and right knee disability are not related to his OSA, as the medical data shows that exercise has a small factor in weight loss, but the most significant cause for weight loss is diet. He concluded that obesity is a likely factor of his OSA given his BMI is 36, however; he stated that the Veteran's PTSD and/or right knee disability were not the cause of his obesity. The Board finds the November 2019 and August 2020 opinions to be probative and adequate for rating purposes, as the examiners reviewed the contents of the Veteran's claims file and provided a detailed rationale addressing both direct and secondary theories of service connection, referring to symptoms reported by the Veteran, as well as medical literature accepted in the field of sleep medicine. The examiners both explained that while the medical literature submitted by the Veteran suggested an association between PTSD and OSA, there is no medical literature suggesting that PTSD can actually cause OSA. The examiners both also stated that they did not find that the Veteran's obesity was caused by his service connected disabilities and thus, service connection for OSA is not warranted on that basis. The Board has carefully reviewed the lay evidence of record. While the Veteran has asserted that his OSA is due to service and/or service-connected disabilities, this is not found to be probative in light of the other evidence of record. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to sleep apnea, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159(a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the medical evidence when there are contradictory findings or statements inconsistent with the record, and it must rely on clinical findings and opinions to determine the connection of current disabilities with service-related events, injuries or illnesses. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For these reasons, and based on the objective medical evidence, the Board finds that the Veteran's OSA is not caused by an event, injury or illness during active service, nor is it proximately due to, the result of or permanently made worse beyond its natural progression by any service-connected disability. Consequently, service connection, direct or secondary, has not been established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to service connection for insomnia The Veteran seeks service connection for insomnia, which he asserts is related to service, his service-connected PTSD, or his OSA. The Board notes that the Veteran's STRs indicate a number of complaints for insomnia and trouble sleeping, noted as adjustment insomnia due to environmental disturbances and stress. Post-service treatment records and VA examinations for PTSD document complaints of sleep disturbances and insomnia. The Veteran has submitted lay statements stating that he only sleeps a few hours per night, and statements from his wife indicating that she observes him awake for most hours of the night. In the June 2012 rating decision that granted service connection for PTSD, the Regional Office (RO) granted a 50 percent evaluation for PTSD for occupational and social impairment with reduced reliability and productivity, panic attacks more than once a week, anxiety, and chronic sleep impairment. The rating for PTSD was increased to 70 percent in a July 2015 rating decision based on symptoms including, inter alia, chronic sleep impairment. In October 2020, a VA medical opinion was provided whereby the examiner stated that the Veteran's claimed insomnia was a symptom of his PTSD and OSA. She stated that no separate or additional diagnosis is warranted. She further explained that insomnia is part of the symptomatology of PTSD, and nightmares and sleep disturbance are symptoms of PTSD according to the DSM-V. Thus, she stated that the Veteran did not have a separate diagnosis of insomnia. Pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this context, the Board finds that the evidence shows that the Veteran's insomnia has been rated as part of his service-connected PTSD; therefore, granting service connection with a separate rating for the same insomnia issues would constitute pyramiding in violation of 38 C.F.R. § 4.14 (rating of the same disability under different diagnostic codes is prohibited). See Esteban, 6 Vet. App. at 261-62 (separate ratings are permissible only when 'none' of the symptomatology is duplicative or overlapping). In evaluating a service connection claim, evidence of a current disability is an essential element, and where not present, the claim under consideration cannot be substantiated. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. at 58 (1994) ('Compensation for service-connected injury is limited to those claims which show a present disability'). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143 44 (1992). As there is no insomnia disability that can be distinguished from the service connected PTSD, the criteria for service connection for insomnia are not met. 38 C.F.R. § 3.303(a). Further, given the decision regarding service connection for the Veteran's OSA contained herein, secondary service connection on this basis cannot be established. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for chronic tachycardia (cardiovascular disability), to include as secondary to service-connected disabilities, is remanded. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. The Veteran seeks service connection for chronic tachycardia (cardiovascular disability) and hypertension, which he asserts are related to service and/or his service-connected PTSD. The Veteran was afforded a VA examination in April 2014, which reflected diagnoses of sinus tachycardia and atypical chest pain. The examiner opined that the Veteran did not have a current diagnosis of hypertension. The examiner opined that the Veteran's cardiovascular conditions were due to his BMI. In the April 2019 remand, the Board found that an addendum opinion was necessary prior to adjudication. Specifically, the Board directed the examiner to address pertinent evidence of record, including November 2009 service treatment records, which reflect that the Veteran had an erratic heart rate and was treated for tachycardia. The Board also noted that the VA examination revealed that the Veteran's average blood pressure reading was 132/88, however, the examiner did not discuss why this blood pressure reading would not be considered high blood pressure. In a November 2019 VA examination for heart conditions, the examiner indicated diagnoses of tachycardia and cardiomegaly. The examiner did not provide an opinion regarding direct service connection for his cardiovascular disability. In a separate examination report for hypertension, the examiner indicated a diagnosis of hypertension with a 2009 onset. On examination that day, the Veteran had two diastolic blood pressure readings above 100. The examiner opined that the diagnosed hypertension was less likely than not incurred in or caused by service, because, although the Veteran had slightly elevated blood pressure documented in his STRs in December 2008, there are no other records to show where Veteran received treatment or was diagnosed with hypertension in service. No further rationale was provided to support this conclusion. The examiner further opined that the Veteran's cardiovascular disability and hypertension were less likely than not due to the Veteran's PTSD because there is no medical literature to support a correlation between these disease processes. She noted that she was unable to find the Veteran's June 2013 statement regarding dates of treatment and the articles referenced by the Veteran's representative in February 2019, which she was specifically directed to address in the April 2019 remand directives. Therefore, an addendum opinion was obtained in September 2020. The clinician stated that after review of the records, "it remains less likely that the cardiovascular condition occurred in service or was caused by service as there is no medical evidence to show that the Veteran had a cardiovascular condition while in service." He noted a number of notations in the Veteran's STRs, but did not address the November 2009 treatment for erratic heart rate and tachycardia. Further, he did not provide an opinion specifically addressing hypertension. Therefore, the Board finds that there was not substantial compliance with the April 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board finds the opinion to be factually inaccurate with regards to the Veteran's cardiovascular disability, as the examiner stated that there is no medical evidence to show that the Veteran had a cardiovascular condition while in service; however, the Veteran was treated for erratic heart rate and tachycardia in November 2009 while still in service, as well as having at least one elevated blood pressure reading. Therefore, the examiner's rationale is flawed. Based on the foregoing, the Board finds that an addendum opinion addressing this pertinent evidence is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner of appropriate expertise to determine the nature and etiology of the Veteran's cardiovascular disability, including chronic tachycardia, and hypertension. (If it is determined that an additional examination is needed to address this matter, such examination should be scheduled in accordance with applicable procedures.) The examiner must be given access to all records contained in the electronic file, and a notation must be made that review of all records has been accomplished. After a thorough review of the medical history, the examiner is requested to prepare a detailed opinion which answers the following: (a) whether it is at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's current cardiovascular disability and/or hypertension had their origin in service or are otherwise related to the Veteran's active service; (b) whether it is at least as likely as not (50 percent or greater likelihood) that any current cardiovascular disability and/or hypertension are proximately due to a service-connected disability, to include PTSD; (c) whether it is at least as likely as not (50 percent or greater likelihood) that any current cardiovascular disability and/or hypertension are aggravated (non temporary increase in severity beyond the natural progression of the disorder) by a service connected disability, to include PTSD; The examiner should consider and discuss all pertinent evidence of record including, but not limited to, statements and articles submitted by the Veteran and/or his representative, STRs indicating treatment for tachycardia and erratic heartbeat and blood pressure readings, post-service treatment records indicating treatment for cardiovascular disabilities and hypertension. 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. The examiner should provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If medical literature is utilized to formulate any opinion, the examiner must provide adequate citation and discussion of such literature or research. The examiner is advised that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should specifically address and reconcile any previous examination reports, as well as any other pertinent evidence of record, as necessary. 2. After the development requested has been completed, the AOJ should review any examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.