Citation Nr: 21006760 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 191001-35067 DATE: February 5, 2021 ORDER Entitlement to service connection for allergic rhinitis is denied. Entitlement to service connection for sinusitis is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that allergic rhinitis began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that sinusitis began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis 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 sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to October 1990. These matters initially came before the Board of Veterans’ Appeals (Board) from a July 2019 rating decision. The Veteran timely appealed the July 2019 decision in August 2019 and selected the Higher-Level Review lane. Accordingly, a September 2019 rating decision considered the evidence of record as of the date of the July 2019 decision. The Veteran timely appealed the September 2019 rating decision to the Board in October 2019 and requested direct review of the evidence considered by the agency of original jurisdiction (AOJ). In October 2019, the Board denied the claims of service connection for allergic rhinitis, sinusitis, and sleep apnea. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court set aside the Board’s October 2019 decision, in part, and remanded to the Board the issues of entitlement to service connection for allergic rhinitis, sinusitis, and sleep apnea for readjudication in compliance with directives specified in a July 2020 Joint Motion filed by counsel for the Veteran and VA. As the Veteran timely appealed the September 2019 Higher-Level Review decision (which considered the evidence of record as of the date of the July 2019 rating decision) and requested direct review of the evidence considered by the AOJ on his October 2019 appeal to the Board (VA Form 10182), the Board will also review the evidence received by VA as of the August 2, 2019 notification of the July 2019 rating decision. 38 C.F.R. §§ 3.2601(f), 20.202 (b)(1). As a final preliminary matter, the Board notes that evidence was added to the claims file during a period of time when new evidence was not allowed. This evidence includes treatment records from Blackstone Medical Services received in March 2020, a March 2020 statement from the Veteran’s wife, medical literature pertaining to the connection between sleep apnea and diabetes mellitus received in May 2020, and July 2020 statements from the Veteran and the report of a December 2020 VA psychiatric examination which reflect possible combat exposure in service. As the Board is deciding the claims of service connection for allergic rhinitis, sinusitis, and sleep apnea, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for allergic rhinitis, sinusitis, and sleep apnea The Board finds, for the following reasons, that, while there is evidence that the Veteran has current allergic rhinitis, sinusitis, and sleep apnea, these disabilities have not been shown to have had their onset in service or to be otherwise related to a disease or injury in service. At the outset, the Board notes that the Veteran has not been afforded VA examinations for his claimed rhinitis, sinusitis, or sleep apnea, and opinions as to the etiology of these disabilities have not otherwise been obtained. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A claimant’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The types of evidence that “indicate” that current disability “may be associated” with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. There must, however, be sufficient evidence of such a relationship to trigger VA’s duty to provide an examination or obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). A conclusory generalized lay statement suggesting a nexus between current disability and service is not sufficient, as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Id. at 1278-1279. In this case, there is no evidence that the Veteran’s current rhinitis, sinusitis, or sleep apnea may be associated with service. As explained below, the Veteran has not reported, and the evidence does not otherwise reflect, a continuity of symptomatology with respect to these claimed disabilities. Also, there is no other competent evidence that the current rhinitis, sinusitis, or sleep apnea may be related to service, and neither the Veteran nor his representative has alluded to the existence of any such evidence. Hence, VA examinations or opinions for the claimed rhinitis, sinusitis, and sleep apnea are not necessary. See McLendon, 20 Vet. App. at 83. The AOJ found that the Veteran has experienced sinus infections. Also, his medical records, including a July 2018 treatment record from Family Practice Clinic, Inc. and a March 2019 examination report from T.G. Westbrook, M.D., show that he experiences current allergic rhinitis and sleep apnea. Thus, current disabilities have been demonstrated. The Veteran has not reported, and the evidence does not otherwise reflect, that he has experienced a continuity of rhinitis, sinus, or sleep apnea symptomatology in the years since service. In this regard, service treatment records reflect that the Veteran was treated for a sore throat and nasal congestion in January 1968, right eye swelling and blurring of vision after hitting his head in February 1970, a sore throat and cough which brought up yellow mucous in November 1970, and nasal congestion in December 1972. The parties to the Joint Motion explained that the Board had not addressed the January 1968, February 1970, and November 1970 service treatment records. The parties to the Joint Motion also noted that the Board did not discuss a March 1987 service treatment record which they contend reflects that the Veteran was experiencing tender sinuses. However, the Board points out that the March 1987 service treatment record identified in the Joint Motion indicates that the Veteran had “non tender sinuses.” None of the above service treatment records indicate a sinus disorder or reference the sinuses, other than the reference to non tender sinuses. The parties to the joint motion appear to assume that the reference to sore throat and cough, eye swelling, and nasal congestion are sinus related but this is a medical judgment that the Board is prohibited from making. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)). Moreover, there is no other evidence of any complaints of or treatment for actual or potential nasal, sinus, or sleep problems in the Veteran’s service treatment records and his October 1990 retirement examination was normal. In addition, the October 1990 report of medical history indicates either “no” or “don’t know” in response to the question have you ever had or have you now sinusitis or ear, nose, or throat trouble. Further, the lay and medical evidence indicates that the current allergic rhinitis, sinusitis, and sleep apnea did not manifest until years after service. In this regard, the first evidence of potential rhinitis and sinusitis following service is a November 2009 treatment record from Naval Hospital Pensacola which reveals that the Veteran was prescribed nasal spray and that the prescription was last filled in April 2009. Also, the first evidence of sleep apnea following service is the March 2019 examination report from Dr. Westbrook. Thus, even assuming some sinus involvement in the above service treatment records notwithstanding the only mention of sinuses being that they were nontender, the absence of any evidence of rhinitis, sinus disability, and sleep apnea for over a decade after the Veteran’s separation from active service in October 1990, along with the negative separation exam and report of medical history, weighs against a finding that his current rhinitis, sinus disability, or sleep apnea were present in service or in the year or years immediately after service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology with respect to the claimed rhinitis, sinusitis, and sleep apnea. Moreover, while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, the question presented in this case (i.e., whether any relationship exists between the Veteran’s current rhinitis, sinus disability, and sleep apnea and service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). An opinion as to whether there is a link between the Veteran’s current rhinitis, sinus disability, and sleep apnea and service, where there is no evidence of any such disabilities for years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. There is no other evidence of a relationship between the Veteran’s current rhinitis, sinus disability, or sleep apnea and service, and neither he nor his representative has alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran’s current rhinitis, sinus disability, or sleep apnea had their onset in service or are otherwise related to service. As the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt doctrine is not for application, and service connection for allergic rhinitis, sinusitis, and sleep apnea is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.