Citation Nr: 21014826 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-47 337 DATE: March 15, 2021 ORDER Entitlement to service connection for residuals of nasal trauma, claimed as a nose fracture, is denied. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is denied. Entitlement to service connection for diverticulitis/diverticulosis and colitis, to include as secondary to service-connected disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has current residuals of nasal trauma. 2. The preponderance of the evidence is against finding that the Veteran’s sleep apnea is related to active service or proximately due to or aggravated by service-connected disability. 3. The preponderance of the evidence is against finding that the Veteran has diverticulitis/diverticulosis and colitis that is related to active service or proximately due to or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of nasal trauma, claimed as a nose fracture, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for diverticulitis/diverticulosis and colitis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to September 1975. In November 2020, the Board remanded the following issues for additional development: service connection for residuals of nasal trauma, claimed as a nose fracture; service connection for sleep apnea; service connection for diverticulitis and colitis; and service connection for residuals of traumatic brain injury (TBI). The Board finds substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In January 2021, VA granted service connection for TBI claimed as a head injury. The appeal of this issue is resolved and no longer for consideration. 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). Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). Entitlement to service connection for residuals of nasal trauma, claimed as a nose fracture In May 2013, VA denied service connection for a nose fracture. The Veteran disagreed with the decision and perfected this appeal. In a February 2013 statement, he reported that during the past five years he experienced several falls due to his vertigo imbalance and that he fractured his nose. Service treatment records are negative for complaints or findings related to the nose and on separation examination in September 1975, the Veteran’s nose and sinuses were reported as normal on clinical evaluation. There is no indication, nor does the Veteran contend, that he has residuals of nasal trauma due to active service or events therein. Evidence of record shows the Veteran has fallen on various occasions due to service-connected vertigo and the Board has no reason to doubt his reports of falling and hitting his nose. On VA examination in April 2013, the Veteran reported chronic dizziness and indicated that his head went forward and hit the door jamb. He was subsequently seen with a bloody nose and a contusion around the orbit of his eye with facial injuries. X-rays taken in April 2013 were negative for any nasal bone or other facial fracture. There was deviation of the upper portion of the nasal septum to the left and mucosal thickening in the upper ethmoid sinus which could be related to old trauma. The examiner provided a negative etiology opinion noting that the Veteran does not have a nose fracture. He stated that x-rays showed no evidence of fracture and the clinical evidence was adequate to support the opinion. Because the above examination was unclear as to whether the deviated septum or any sinus issues were related to the reported nasal trauma, the Board remanded for additional opinion. In January 2021, a VA examiner reviewed the claims folder and discussed relevant records. He opined that there was no objective evidence of any residuals of nasal trauma. The April 2013 x-rays were reviewed but the sensitivity of facial bone x-rays was limited in diagnosing maxillofacial abnormalities. While a septal deviation and the possibility of previous trauma was noted, this is not diagnostic since congenital deviated septum is not uncommon. The head MRI from 2007 did not note any abnormalities of the facial or temporal bones which does not support a nasal fracture resulting in traumatic nasal septum deviation. There is also no record of consultation or treatment for sinus issues or a nasal bone fracture/deviation. The examiner further stated that there was no objective evidence for any chronicity of sinus problems or congestion and no established nexus for any residuals of nasal trauma. The Board acknowledges that the above opinion is based in part on a 2007 MRI which would predate the falls reportedly occurring in the 5 years prior to 2013. The opinion, however, is also based on the 2013 x-rays which were negative for evidence of nasal fracture, the limitation of facial x-rays with regard to diagnosing certain abnormalities, the possibility of a congenital condition, and the lack of treatment for sinus or nasal fracture/deviation. On review, the Board finds the overall opinion adequate. As above, the Board does not question that the Veteran fell and hit his nose. There is, however, no objective evidence of a nasal fracture and the preponderance of the evidence is against finding that he has current residuals related to the reported nasal trauma. In making this determination, the Board acknowledges the Veteran’s contentions but notes that he has not shown that he has the medical training, experience, or expertise to be competent to diagnose the claimed residuals. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Without current disability, service connection may not be established. Brammer v. Derwinski, 3 Vet. App. 223 (1992) (holding that in the absence of proof of a present disability, there can be no valid claim). The doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. The claim is denied. Entitlement to service connection for sleep apnea In May 2013, VA denied service connection for sleep apnea. The Veteran disagreed with the decision and perfected this appeal. In a January 2012 statement, he argued that his sleep apnea was due to his service-connected depression and the medications he is taking. Service treatment records are negative for complaints or findings related to sleep apnea and on separation examination in September 1975, the Veteran’s nose, mouth and throat, and lungs and chest were reported as normal on clinical evaluation. There is no indication, nor does the Veteran contend, that he has sleep apnea due to active service or events therein. In April 2013, VA obtained a medical opinion. The examiner stated that the Veteran’s sleep apnea was less likely than not proximately due to or the result of his service-connected condition. The rationale for this opinion was that there is no documentation in the medical literature indicating a cause and effect relationship between sleep apnea and depression. The more common of the two forms of apnea, it is caused by a blockage of the airway usually when the soft tissue in the back of the throat collapses during sleep. The examiner further stated that there was adequate clinical evidence to support the opinion provided. The above opinion did not address secondary aggravation and thus, the issue was remanded for an addendum. Additional opinion was obtained in January 2021. The VA examiner discussed relevant records noting that the March 2011 sleep study showed an Apnea Hypopnea Index (AHI) 48.9/hour. The follow up CPAP data download showed an average AHI equal to 4.5/hour and thus, the current severity of sleep apnea was not greater than the baseline. The examiner noted that while the Veteran continued to have trouble sleeping, it was in spite of the sleep apnea and CPAP use. He was prescribed Buspar, Depakote, Doxepin and Clonazepam for his mood with no noted negative side effect on sleep apnea. In addition to depression, he suffers from insomnia which interferes with his sleep. His psychiatrist prescribed Mirtazapine in place of Ambien and then he was prescribed Trazadone. These medications are adjuncts to improving sleep and there is no objective evidence that sleep apnea was aggravated beyond its natural course due to the depression or the medications used to treat the depression. The VA opinions collectively address secondary service connection. They are based on review of the claims folder and are supported by adequate rationale. Thus, they are considered probative. On review, the preponderance of the probative evidence is against finding that the Veteran’s sleep apnea is proximately due to or aggravated by service-connected disability or the medications used to treat such disability. The record does not contain probative evidence to the contrary. In making this determination, the Board acknowledges the Veteran’s contentions but notes that he has not shown that he has the medical training, experience, or expertise to be competent to provide a medical etiology opinion. See Jandreau. The doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. The claim is denied. Entitlement to service connection for diverticulitis/diverticulosis and colitis In May 2013, VA denied entitlement to service connection for diverticulitis and colitis. The Veteran disagreed with the decision and perfected this appeal. Considering the January 2021 opinion, the Board has expanded the claim to include diverticulosis. In a January 2012 statement, the Veteran indicated that his unhappiness was causing a tremendous amount of pain and discomfort in his gastrointestinal system. A January 2013 report of general information indicates that the Veteran wanted to claim colitis on a direct basis, and he was not claiming it due to any service-connected condition. Service treatment records are negative for complaints related to the claimed disorders and on separation examination in September 1975, the Veteran’s abdomen and viscera were reported as normal. The claimed disorders were not shown for many years following discharge and the preponderance of the evidence is against finding that they are related to active service or events therein. In April 2013, VA obtained an opinion on secondary service connection. The examiner stated the claimed condition was less likely as not proximately due to or the result of the Veteran’s service-connected condition. The rationale for this was that the medical literature does not support a cause and effect relationship between diverticulitis/ulcerative colitis and depression. The cause of ulcerative colitis is unknown. It may be caused by an abnormal response by the body’s immune system to normal intestinal bacteria. The above opinion did not address secondary aggravation and thus, the issue was remanded for an addendum. In January 2021, a VA examiner reviewed the claims folder. He discussed relevant records and noted that the Veteran does not have a diagnosis of diverticulitis. The colonoscopy reports to date have shown scattered diverticula which are small pouches that form on the lining of the colon. This condition is called diverticulosis and is benign until the diverticula become inflamed and infected, which often requires hospitalization and treatment with intravenous antibiotics. In severe cases, surgery can be required. The medical record shows no treatment for the Veteran’s diverticulosis, which has been stable since diagnosed. There is no medical nexus for any aggravation due to the service-connected mood disorder. The examiner further stated that the medical record shows the colitis symptoms have been well controlled since the Veteran was started on medications to help control ulcerative colitis. There is no established medical nexus for any aggravation. The VA opinions collectively address secondary service connection. They are based on review of the claims folder and are supported by adequate rationale. Thus, they are considered probative. On review, the preponderance of the probative evidence is against finding that any diverticulitis/diverticulosis and colitis is proximately due to or aggravated by service-connected disability. The record does not contain probative evidence to the contrary. In considering the claim, the Board acknowledges the Veteran’s contentions but notes that that he has not shown that he has the medical training, experience, or expertise to be competent to provide a medical etiology opinion. See Jandreau. The doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. The claim is denied. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, 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.