Citation Nr: 21006195 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-13 052A DATE: February 3, 2021 ORDER Service connection for a sinus disability is denied. REMANDED Entitlement to service connection for diabetes mellitus. Entitlement to service connection for sleep apnea. Entitlement to service connection for bilateral foot neuropathy, to include as secondary to diabetes mellitus. Entitlement to service connection for a bilateral vision problem, to include as secondary to diabetes mellitus. FINDING OF FACT A sinus disability is not related to service. CONCLUSION OF LAW The criteria for service connection for a sinus disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to August 1978 and from September 1979 to September 1983. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, and a July 2014 rating decision of the RO in Muskogee, Oklahoma. The claims on appeal were initially remanded by the Board in December 2015 with instruction that a statement of the case be issued under Manlincon v. West, 12 Vet. App. 238 (1999). A statement of the case was issued in September 2016 and the Veteran submitted a substantive appeal in October 2016. In August 2018, the Board remanded with instruction to obtain current treatment records and to provide VA examinations. The appropriate records were obtained, and VA examinations were provided in January 2020. In August 2020, the Board again remanded with instruction to obtain current treatment records and to obtain additional VA medical opinions. The appropriate records were obtained, and VA medical opinions were provided in October 2020. The Board is therefore satisfied that with respect to the issue decided, the instructions in its remands of December 2015, August 2018, and August 2020 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a sinus disability The Veteran claims service connection for a sinus disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records reflect that in May 1976 the Veteran reported sore throat, malaise, and sinus congestion. He was diagnosed with viral syndrome. No sinus abnormality was noted at his July 1978 separation examination. In his second period of service, he experienced a facial laceration in April 1982. No sinus abnormality was noted at his August 1983 separation examination. In his March 2012 claim, he reported that he began to have sinus problems after experiencing a facial injury in service that required stitches. In an accompanying statement, his wife stated that his sinus problems began after that injury. The Veteran a VA examination in December 2012. He reported sinus headaches and symptoms that began in the 1980s after hitting his face on a wing. He stated that his sinusitis diagnosis was confirmed by CT scan in 2007 or 2008. The examiner diagnosed allergic rhinitis. The examiner opined that the disability was less likely than not related to service. This opinion was based on the examiner’s inability to review a CT scan, though the examiner stated that the service treatment records themselves did not support a relationship. In his March 2013 notice of disagreement, the Veteran again stated that his sinusitis was caused by his in-service eye injury. In an October 2014 statement, he stated that he knows that the injury caused his sinusitis because the scar hurts and is across his sinus cavity. The Veteran underwent another VA examination in December 2019. He was diagnosed with rhinitis. The examiner opined that the disability was less likely not related to service. This opinion was based on the rationale that service treatment records did not support an in-service diagnosis of chronic sinusitis. In an October 2020 medical opinion, a VA examiner opined that it was less likely than not that a sinus disability was related to service. This opinion was based on the rationale that the Veteran did not have any sinus disorder while on active duty or within one year of separation. The facial injury he experienced in service was a superficial laceration that did not penetrate into the maxillary sinuses, as confirmed by subsequent x-rays. The Board finds the evidence weighs against a finding that the Veteran’s sinus disability is related to service. Service treatment records do not establish a chronic sinus disability in service. He maintains that he has current sinus problems related to a facial laceration he experienced in service. Both he and his wife state that he did not have sinus problems prior to the injury and has had chronic problems since. While they are competent to observe when symptoms occur, however, neither he nor his wife are competent to opine as to medical causation. Multiple VA examiners have stated that a relationship to the injury is not established by the evidence. There are no medical opinions in the record to contradict the VA examiners’ opinions. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s sinus disability is related to service, and service connection is therefore denied. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus The Veteran claims service connection for diabetes mellitus. Service treatment records do not reflect any symptoms of or treatment for diabetes mellitus, and no such abnormality was noted at his separation examinations in July 1978 and August 1983. VA treatment records reflect that in June 2013 the Veteran presented to the emergency room with elevated glucose and symptoms of diabetes. He was diagnosed with diabetes mellitus. He continued treatment thereafter. In his July 2013 claim the Veteran stated that his diabetes was the result of weight gain caused by his medication for his service-connected depression. Specifically, he stated that an increase in medication prescribed for headaches and depression in the fall of 2012 caused him to gain 40 pounds in one month, an increase from 279 to 320. He stated that he lost weight when his medication was subsequently changed. In a September 2013 statement, the Veteran’s wife stated that the Veteran was prescribed Gabapentin for his depression and headaches. When his dosage was increased, his weight increased. They mentioned this to his doctors who were not concerned, but the Veteran was hungry all the time. In an October 2014 statement, his wife stated that he comes home from work, eats his supper in bed while watching television, and eats and eats until he falls asleep. She stated that he eats because he is depressed. She stated that his pain keeps him from exercising. In another statement, the Veteran reported that he is so depressed that all he wants to do is lay in bed and eat. The Veteran underwent a VA examination in December 2019. He was diagnosed with diabetes mellitus. The examiner opined that diabetes was less likely than not related to service. This opinion was based on the rationale that there were no symptoms in service and diabetes was not diagnosed until 2013. The examiner further opined that diabetes was less likely than caused or aggravated by depression or headaches. This opinion was based on the rationale that there was no support in the medical literature for diabetes being caused or aggravated by migraine headaches, depression, or the medication the Veteran had been prescribed for those conditions. In a June 2020 statement, the Veteran’s representative argued that his service-connected foot disabilities caused his obesity which in turn caused his diabetes. In an October 2020 medical opinion, a VA examiner opined that it was less likely than not that the Veteran’s claimed weight gain was proximately due to or the result of his medication use or degenerative changes in the feet. This opinion was based on the rationale that there was no indication that his capacity to ambulate was limited or that his medication caused his weight gain. The examiner explained that he was on a pathway of weight gain before his medications were prescribed, which was a function of his dietary choices. In a November 2020 statement, the Veteran’s representative argued that the October 2020 medical opinion discounted lay evidence and evidence from a vocational expert indicating that his foot disabilities prevented him from walking. In addition, the representative argued that the opinion did not determine whether obesity was directly caused or aggravated by the Veteran’s depression, given the October 2014 statement from his wife that he “eats because he is depressed.” The Board finds that remand is necessary to determine whether the Veteran’s obesity is secondary to his service-connected depression. The evidence of record establishes that his obesity was a risk factor in his development of diabetes. While the Veteran’s wife has stated that his eating was caused by his depression, she is only competent to observe a correlation, not to establish a causation. The October 2020 VA examiner’s opinion on the matter was restricted to side effects of medication, and no opinion was provided as to any direct relationship between depression and obesity. On remand, an opinion from a qualified mental health examiner should be obtained. 2. Entitlement to service connection for sleep apnea The Veteran claims service connection for sleep apnea. In his March 2013 claim, he stated that his sleep apnea was caused by his sinusitis. Service treatment records do not reflect any symptoms of or treatment for sleep apnea, and no such abnormality was noted at his separation examinations in July 1978 and August 1983. VA treatment records reflect that in February 2012 the Veteran reported that his wife told him that in the middle of the night he had an episode where he stopped breathing, his arms went stiff, and his feet jerked. At a neurological consultation he stated that he had a history of such episodes for a “few years.” He was diagnosed with probable obstructive sleep apnea and referred for a sleep study. An April 2012 sleep study showed sleep apnea and he was provided with a continuous positive airway pressure (CPAP) machine in May 2012. The Veteran underwent a VA examination in December 2019. He was diagnosed with obstructive sleep apnea. The examiner opined that sleep apnea was less likely than not related to service. This opinion was based on the rationale that there was no sleep apnea in service, and he was not diagnosed until April 2012. The examiner noted a September 1979 in-service examination report in which the physician noted trouble sleeping that was attributed to stress, not symptoms of apnea. In a June 2020 statement, the Veteran’s representative argued that his service-connected foot disabilities caused his obesity which in turn caused his sleep apnea. In an October 2020 medical opinion, a VA examiner opined that it was less likely than not that sleep apnea was related to service. This opinion was based on the rationale that sleep apnea was diagnosed 29 years after separation, with the most significant risk factor being his morbid obesity. The examiner stated that morbid obesity was not incurred in or caused by his other general health conditions or by his medication used to treat his disabilities. The Board finds that remand is necessary to determine whether the Veteran’s obesity is secondary to his service-connected depression. The October 2020 medical opinion establishes that his sleep apnea was primarily caused by his morbid obesity. As discussed above regarding his diabetes, an opinion from a qualified mental health examiner should be obtained. This opinion is likewise required to determine if service connection for sleep apnea is warranted. 3. Entitlement to service connection for bilateral foot neuropathy, to include as secondary to diabetes mellitus The Veteran claims service connection for neuropathy of the bilateral feet. Service treatment records reflect that in December 1975 the Veteran reported pins and needles in both feet after two days in the field in the rain. He was diagnosed with overexposure in weather. No such abnormality was noted at his separation examinations in July 1978 and August 1983. The Veteran underwent a VA examination in April 2011. He reported that in service he was training in service in the snow without proper gear. He stated that he went to sick call with pain in his feet, but no treatment was provided. He reported constant symptoms since then. Physical examination showed slightly decreased vibration and pinprick sensations in the left lower extremity. There was no electrodiagnostic evidence of any peripheral neuropathy. No etiology opinion was given. VA treatment records reflect that in September 2011 the Veteran’s podiatrist noted decreased vibratory and sharp/dull senses in both lower extremities. He was diagnosed with neuropathy. The Veteran underwent a VA examination in June 2014. He reported burning pain, tingling, and numbness in both feet which began with the onset of his diabetes mellitus. He was diagnosed with diabetic neuropathy of the bilateral feet. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that electrodiagnostic studies completed in 2009 did not reveal significant evidence of compression neuropathy, and his current symptoms were therefore at least as likely as not due to diabetes mellitus. The Veteran underwent another VA examination in December 2019. He was diagnosed with diabetic neuropathy. The examiner opined that diabetic neuropathy was less likely than caused or aggravated by depression or headaches. This opinion was based on the rationale that there was no support in the medical literature for diabetic neuropathy being caused or aggravated by migraine headaches, depression, or the medication the Veteran had been prescribed for those conditions. Because the evidence establishes a diagnosis of diabetic neuropathy secondary to the Veteran’s diabetes mellitus, this issue is inextricably intertwined with service connection for diabetes mellitus and thus must be remanded. See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). 4. Entitlement to service connection for a bilateral vision problem, to include as secondary to diabetes mellitus The Veteran claims service connection for an eye disability. Service treatment records do not reflect any symptoms of or treatment for an eye disability, and no such abnormality was noted at his separation examinations in July 1978 and August 1983. The Veteran underwent a VA examination in December 2019. He reported that in service he cut his lower eyelid at the cheekbone and had to get stitches to heal. He believed his vision had gotten worse. He was diagnosed with bilateral cataracts. The examiner opined that these cataracts were at least as likely as not caused by his diabetes mellitus. The examiner further opined that the cataracts were less likely than not related to his migraines or depression. This opinion was based on the rationale that there was no medical connection between such disabilities. In an October 2020 medical opinion, a VA examiner opined that it was less likely than not that the Veteran’s cataracts were related to his in-service facial laceration (discussed in full below as the claimed cause of his sinus disability). This opinion was based on the rationale that cataracts would not be affected by a laceration of the skin. The examiner further opined that cataracts were at least as likely as not related to diabetes. Because multiple VA medical opinions establish a diagnosis of bilateral cataracts secondary to the Veteran’s diabetes mellitus, this issue is inextricably intertwined with service connection for diabetes mellitus and thus must be remanded. See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Obtain an opinion from a qualified mental health VA examiner. An in-person or virtual examination may be ordered if the examiner deems it necessary. The examiner must review the claims file. The examiner shall offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that the Veteran’s obesity was caused or aggravated by his service-connected psychiatric disability. In so doing, the examiner must make specific reference to the statements submitted by the Veteran and his wife in July 2013, September 2013, and October 2014 indicating that he eats because he is depressed. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.