Citation Nr: 21010722 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-06 805 DATE: February 25, 2021 ORDER 1. Entitlement to service connection for a nose disability is denied. REMANDED 2. Entitlement to service connection for sleep apnea, to include as secondary to chronic tonsillitis is remanded. 3. Entitlement to a compensable rating for chronic tonsillitis is remanded. FINDING OF FACT A nose disability was not manifested in service; a disease or injury in service to which a current nasal disability could be related is not shown; and there is no competent evidence in the record that a current nose disability may be etiologically related to the Veteran’s active duty service. CONCLUSION OF LAW Service connection for a nose disability (to include rhinitis) is not warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who had active service from December 1955 to November 1957. These matters come to the Board on appeal from a May 2014 rating decision. In his February 2016 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. Such hearing was scheduled in October 2019, but the Veteran failed to appear. He has not offered good cause for his failure to appear or requested that it be rescheduled. Therefore, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704 (d). 1. Entitlement to service connection for a nose disability Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty peacetime service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of : (1) the existence of a present disability; (2) incurrence or aggravation of a disease or injury in service; 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). The medical evidence of record shows a current diagnosis of chronic rhinitis (a nasal disability). Therefore, the first element of Shedden, the presence of a current disability, is met. The Veteran’s service treatment records do not show any nasal complaints or treatment for nasal disability during his active service (to include the allergic rhinitis specifically identified in argument by the Veteran’s representative. On November 1957 examination for separation from active duty, his nose was normal on clinical evaluation. The Veteran does not point to (has not identified) a nose-related disease or injury in service, and none is shown. Thus, the second element of Shedden is not met. Regarding the third element that under Shedden must be met to substantiate a claim of service connection, evidence of causal relationship between the current claimed disability and a disease or injury incurred in service, the theory of entitlement proposed is not clear. A related disease or injury in service has not been specifically identified by either the Veteran or his representative; by inference from the reference to allergic rhinitis it is assumed that the theory of entitlement presented is that the current nasal disability (rhinitis) is due to allergies in service. However, there is nothing in the record supporting that allergies (to include of a seasonal nature, as cited by the representative) became manifest in service. The Board notes that the Veteran has not been afforded a VA examination in connection with this claim (to ascertain the etiology of his rhinitis). [He was examined for sinusitis in 2014, which is reported on a form that includes both rhinitis and sinusitis, but did not address any nose disability.] Because there is no evidence of a related disease or injury in service, and no competent evidence that any current nose disability (to include rhinitis) may be etiologically related to the Veteran’s, service, even the low threshold standard for determining when an examination is necessary endorsed in McLendon v. Nicholson, 20 Vet. App. 79 (2006 is not met, an examination is not necessary. The record shows that the Veteran complained of excessive post-nasal drip on a September 1966 evaluation. The earliest documented reported symptoms that could reasonably be associated with an underlying nose disability are from 1966, nearly nine years after his separation from active duty. He has not submitted any medical opinion or treatise evidence indicating that any current nasal disability (to include rhinitis) may be etiologically related to a shown disease or injury in service. In summary, the Board finds that a nasal disability was not manifested in service; that a disease or injury in service to which a current nasal disability could be attributed is not shown; and that there is no competent evidence that a current nasal disability (such as rhinitis) may be etiologically related to the Veteran’s service. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. REASONS FOR REMAND 2. Entitlement to service connection for sleep apnea, to include as secondary to chronic tonsillitis. On May 2014 VA examination to determine the nature and etiology of the Veteran’s sleep apnea, the examiner opined that his sleep apnea was less likely than not proximately due to or the result of a service-connected condition. The examiner noted that medical literature relating to the etiologies of sleep apnea and chronic tonsillitis was reviewed. He noted that the two disabilities are different medical conditions with different pathophysiological mechanisms, not etiologically related between them. The Board finds the examiner’s opinion inadequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner did not address whether the Veteran’s current disability was aggravated by his service-connected tonsillitis and did not identify the medical literature reviewed for the opinion. The secondary service connection theory of entitlement is also inextricably intertwined with the matter of the rating for chronic tonsillitis. An addendum opinion is necessary. 3. Entitlement to a compensable rating for chronic tonsillitis. On May 2014 examination to assess the severity of the Veteran’s chronic tonsillitis, the examiner noted that a pharynx and throat exam showed normal sized tonsils, no exudates, and no hyperemia. He noted that the Veteran complained of episodes of throat pain which were treated with over the counter medication, with good response. The Board finds the examination report inadequate for rating purposes. This disability is rated by analogy to diagnostic code (Code) 6516 (for chronic laryngitis) which provides for a 10 percent rating for hoarseness with inflammation of the chords. The VA examiner did not address the criteria under that code, and did not elicit from the Veteran information that would allow a proper analogous rating. For example, the examiner appears to have only looked at the Veteran’s tonsils and assessed the condition on the date of examination, and did not address the Veteran’s lay reports of throat pain treated with over-the-counter medication. . A more thorough examination is necessary. The matters are REMANDED for the following action: 1. Secure for the record updated (from November 2015 to the present) all VA medical records pertaining to evaluations and treatment the Veteran has received for chronic tonsillitis. 2. Then arrange for the Veteran to be examined by an appropriate clinician to assess the severity of his chronic tonsillitis. The Veteran’s claims file (to include the records received pursuant to the request in #1, above, must be reviewed by the examiner, and the examiner should specifically note the Veteran’s lay reports of flare-ups which he has treated with over-the counter medication. In addition to reporting the current relevant clinical findings, to include whether there is hoarseness and/or inflammation of the chords, elicit from the Veteran a detailed description of his self-treated (apparently) flare-ups (noting frequency, duration, and related symptoms and impairment), and comment whether the descriptions suggest that there have been any distinct periods of hoarseness/inflammation (identifying such periods). Please include comment regarding whether the Veteran’s descriptions are consistent with the clinical presentation on examination and the disability picture presented by the overall clinical record. 3. Thereafter, arrange for the Veteran’s entire record to be forwarded to an appropriate clinician for review and an addendum advisory medical opinion regarding the etiology of his sleep apnea (and specifically whether it was aggravated by his service connected chronic tonsillitis). The opinion should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea was aggravated (there was a chronic increase in symptoms of or impairment due to the sleep apnea) by his service-connected chronic tonsillitis (to include any self-treated flare-ups of the tonsillitis)? (b) If so, identify the baseline level of severity of the sleep apnea before the aggravation occurred and the level of severity of the sleep apnea, after aggravation was completed. The opinion must include a complete explanation of rationale that cites to the supporting factual data, medical principles, and any medical text or treatise relied on. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.