Citation Nr: A21020647 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 191024-42415 DATE: December 29, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. Service connection for sinusitis is denied. Service connection for dizziness is denied. A total disability rating based upon individual unemployability (TDIU) is denied. REMANDED Service connection for rhinitis is remanded. Service connection for headaches is remanded. Service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of OSA. 2. The Veteran does not have a diagnosis of chronic sinusitis. 3. The Veteran does not have a disability characterized by dizziness. 4. The Veteran is not currently in receipt of service connection for any disability. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sinusitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for dizziness are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 2001 to August 2002. In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Service connection for OSA is denied. The Veteran filed a claim for service connection for OSA. However, the evidence does not reflect a diagnosis of this disability. An August 2018 sleep study resulted in a finding of no diagnosis of OSA. There is no probative or competent evidence to support the finding of a diagnosis of OSA. Veteran is not competent, himself, to diagnose OSA; this determination is outside the realm of common knowledge of a layman since the disability at issue is complex, not merely simple, and requires specific testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, service connection for OSA must be denied. 2. Service connection for sinusitis is denied. The Veteran contends that he suffers from sinusitis related to his service. However, the Board finds that the competent and probative evidence of record does not show that the Veteran suffers from a chronic sinusitis disability. In that regard, on February 2019 VA examination, a VA examiner conducted physical examination of the Veteran and reviewed the record, but concluded that the Veteran did not have a current sinusitis disability. While a private treatment record dated in 2018 referenced "chronic sinusitis," there was no indication of clinical or radiographical testing to confirm that diagnosis. Otherwise, there was no record of diagnosis of or treatment for sinusitis in the post-service records. Therefore, based upon examination of the Veteran and this review of the record, there was no indication of a disability manifested by sinusitis. The Board finds that the 2019 VA opinion is highly probative in that it is consistent with the record. The post-service treatment records do not indicate a chronic sinus disability. The Board notes that the requirement of a current disability for a service connection claim is satisfied when a Veteran has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). However, in this specific situation, it does not appear that the Veteran has been diagnosed with this disability other than a reference of sinusitis in 2018. At that time, he was not being treated for sinusitis, it was simply noted in his medical history. Therefore, there is no indication that he has suffered from this disability during the pendency of the appeal. The Veteran has not provided any statements to support the contention that he has suffered from sinusitis during the pendency of the appeal. In that case, absent evidence of a disability, the elements of service connection are not met. Accordingly, the claim for service connection for sinusitis must be denied. 3. Service connection for dizziness is denied. The Veteran has filed a claim for service connection for dizziness, however, he has not provided any contentions to support this claim, such as his symptoms of dizziness or a diagnosis to attribute the sensation of dizziness. A review of the service treatment records and post-service treatment records do not reflect complaints of dizziness as part of a disability, or a disability manifested by dizziness. Considering such, the Board finds that the elements of service connection have not been met, and the claim must be denied. TDIU 1. A TDIU is denied. The Veteran is not currently in receipt of service connection for any disability. Although a number of claims currently on appeal have been remanded for additional development, as it stands, there is no current entitlement to a TDIU. There is additionally no indication of a pre-decisional duty to assist error, such that the claim would be remanded at this time. Therefore, the claim for TDIU must be denied. REASONS FOR REMAND 1. Service connection for rhinitis is remanded. The Board finds that there is a pre-decisional duty to assist error with regard to the claim for service connection for rhinitis. Although the Veteran received a VA examination in February 2019, when providing the requested opinion, the examiner did not appear to consider or discuss the Veteran's contentions of experiencing rhinitis symptoms since 2001. Therefore, the opinion obtained is not adequate. As such, a new VA examination and opinion should be obtained on remand. 2. Service connection for headaches is remanded. The Board finds that there is a pre-decisional duty to assist error with regard to the claim for service connection for headaches. At the time of the February 2019 rating decision, there was evidence of a current diagnosis of headaches as well as statements by the Veteran that his headaches began in 2001, during service. The AOJ did not appear to consider these statements or obtain a VA examination in this instance. Because the duty to assist was triggered in this instance, a VA examination and opinion should be obtained. 3. Service connection for an acquired psychiatric disorder is remanded. The Board finds that there is a pre-decisional duty to assist error with regard to the claim for service connection for an acquired psychiatric disorder. At the time of the February 2019 rating decision, the Veteran had reported an instance of military sexual assault that he contends caused his current psychiatric disorder. However, a VA examination was not obtained. The Board notes that the Veteran has submitted a positive private nexus relating his current psychiatric disorder to his service, however, this private examination does not discuss pertinent service records. Thus, the requested development is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his rhinitis and headaches. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran's a) rhinitis and/or his b) headaches at least as likely as not related to service? The examiner should consider and discuss the Veteran's report of experiencing rhinitis symptoms and headaches since 2001. Provide a rationale to support the opinion(s). 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, 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. The examiner must opine whether the evidence of record, including the Veteran's lay statements and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. The examiner should discuss the service treatment records surrounding the Veteran's discharge for underage drinking, including the notations surrounding his past alcohol use. 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 the contended personal assault. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.