Citation Nr: 21022097 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-05 344 DATE: April 14, 2021 ORDER Entitlement to an initial compensable rating for deviated septum is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for gastro-esophageal reflux disease (GERD) is remanded. FINDING OF FACT During the period on appeal, the Veteran’s deviated septum has been characterized by less than 50 percent obstruction of both nasal passages and by less than total obstruction on either the left or the right nasal passage, as well as some loss of smell and taste, congestion, post-nasal drip and pain. CONCLUSION OF LAW The criteria for an initial compensable rating for deviated septum have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Code 6502 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to May 1972. This matter came before the Board of Veterans Appeals (Board) on appeal from October 2012, January 2013, November 2013 and February 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a July 2019 hearing. The transcript of the hearing is of record. A November 2019 Board decision restored service connection for left ear hearing loss disability , granted service connection for tinnitus and remanded the remaining issues on appeal for further development. The November 2019 Board decision asked the agency of original jurisdiction (AOJ) to contact the Veteran to so that he could identify any private treatment records and provide the necessary authorization, and then obtain any identified records if possible. Pursuant to the remand, the AOJ sent a February 2020 development letter asking the Veteran to identify his private providers and complete VA Form 21-4142. However, the Board’s review indicates that the record is silent for any indication that the Veteran provided the requested authorization or otherwise responded to the AOJ’s request. The Board notes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991). While VA does have a duty to assist the Veteran in the development of the claim, that duty is not limitless, and the Veteran must be prepared to cooperate with VA’s efforts to obtain all relevant evidence. Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board therefore finds that there has been substantial compliance with the November 2019 remand directive and will therefore adjudicate the issues on appeal based on the evidence of record. A December 2020 rating decision granted service connection for PTSD. As this constituted a complete grant of the benefit sought on appeal, the issue is not before the Board. 1. Entitlement to an initial compensable rating for deviated septum The Veteran contends that he is entitled to an increased rating for his deviated septum, which is rated as noncompensable. As will be discussed in detail below, the Board finds that a compensable rating is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran is rated under Diagnostic Code (DC) 6502, which rates deviation of the nasal septum. Under the DC, a 10 percent rating is warranted when there is 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. This is the highest rating available under the DC. 38 C.F.R. § 4.97, DC 6502. October 2013 VA primary care records noted that there was no nasal congestion or post-nasal drip. October 2018 VA treatment records show that the Veteran complained of a decrease in taste and smell for several months and stated that his food tasted like metal. The provider noted the Veteran’s belief that his sense of smell had not been the same since his deviated septum surgery. The provider stated that they would try a prescription for fluticasone to see if it improved possible rhinitis. September 2019 VA treatment records noted complaints of post-nasal drip and show a prescription for fluticasone. The records are silent for obstruction. A December 2012 VA examination diagnosed deviated septum. The examiner noted the Veteran’s history of septal surgery in service and ongoing symptoms of “on and off” nasal congestion controlled with local nasal spray. A nasal endoscopy was performed, and the examiner found that there was not at least 50 percent obstruction of the nasal passage on both sides or complete obstruction on either the left or right side. A July 2015 VA examination diagnosed deviated nasal septum and noted a history of nasal surgery as well as nasal congestion and mild loss of smell and taste. The provider also diagnosed sinusitis and rhinitis. Nasal endoscopy showed residuals of nasal septal deviation to the right with less than 50 percent nasal obstruction. The examiner separately opined that the Veteran’s current level of severity was stable and had not progressed and that the residuals of septal surgery were less than 50 percent of obstruction of nasal airway. A February 2016 VA opinion found that both rhinoplasty and septoplasty were performed as part of the Veteran’s nasal surgery. The provider found that the residual of the nasal septum deviation was less than 50 percent of nasal obstruction. A December 2020 VA nose examination diagnosed deviated septum and noted the Veteran’s history of surgery and his reports of some nasal pain on the right and left. The examiner found that the Veteran did not have at least either percent obstruction of the nasal passage on both sides and that he did not have complete obstruction on either the left or the right side. The report noted a July 2015 nasal endoscopy which showed deviation of the nasal septum to the right with less than 50 percent nasal obstruction. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the July 2019 Board hearing, the Veteran reported that he had a problem with smell and taste and that a lot of times he could not taste the food that his daughter-in-law made. He also stated that his nose became easily plugged. He reported that his doctor gave him a spray to use and that he was able to smell and taste for a few hours after using the spray. The Board notes that the Veteran is competent to report lay-observable symptoms such as problems smelling/tasting and nasal congestion and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Again, the Veteran’s deviated septum is rated as noncompensable for the entire period on appeal. To warrant a 10 percent rating under DC 6502, the evidence would need to show either 50 percent obstruction of the nasal passage on both sides or complete obstruction on either the left or right side. Upon review of the above, the Board finds that the competent evidence of record is against finding that the Veteran has had either 50 percent obstruction of the nasal passage on both sides or complete obstruction on either side at any point during the period on appeal. All the VA examinations across the period on appeal found less than 50 percent obstruction of the nasal airways and did not find complete obstruction on either side. Their findings were supported by nasal endoscopy showing deviation to the right with obstruction of less than 50 percent. Consistent with those findings, VA treatment records noted symptoms such as post-nasal drip and reduced sense of smell but are silent for reports of either complete or partial obstruction. The Board acknowledges that the Veteran has reported nasal congestion as well as pain and loss of smell. However, while the Veteran is competent to report congestion and other lay-observable symptoms, the question of the degree of nasal obstruction due to deviated septum is a medical question upon which the Veteran is not competent to opine. Thus, there is simply no basis upon which the Board can conclude that the Veteran had nasal obstruction meeting the criteria for a 10 percent rating at any point during the period on appeal and compensable rating is therefore not warranted. Because deviated septum is specifically listed in the rating schedule, it may not be rated by analogy under a different DC. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Therefore, no other DCs are potentially applicable which might afford a higher rating on an alternative basis. The Board has also considered whether a separate rating is warranted for loss of smell or taste. However, both under DC 6275, which rates loss of smell, and DC 6276, which rates loss of taste, a 10 percent rating is warranted for complete loss of smell or taste. In this case there is no indication, and the Veteran does not contend, that he has complete loss of smell or taste. His July 2019 testimony indicated that he often had trouble smelling and tasting, but he did not indicate that his loss of smell or taste was complete. Consistent with the Veteran’s testimony, VA treatment records noted reduced smell and taste but not a complete loss and the July 2015 examiner found mild loss of smell and taste, not a complete loss. A rating under DC 6275 would therefore provide no benefit to the Veteran. The preponderance of the evidence is against a compensable rating for deviated septum. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea The November 2019 Board decision requested a new VA examination regarding the etiology of the Veteran’s sleep apnea, including whether it was caused or aggravated by his deviated septum, and asked the examiner to discuss the February 2013 private opinion regarding the Veteran’s sleep apnea and his deviated septum. A December 2020 VA examination found that sleep apnea was not due to service. As a rationale, the examiner stated that the Veteran reported snoring in service but there were no medical records available regarding sleep apnea. The examiner then stated that the Veteran reported snoring more after service and was diagnosed in 2012 and used a CPAP almost every night. The examiner did not explain the significance of those facts. The Board finds that the opinion is inadequate for several reasons. First, the examiner indicated that he did not have access to any medical records regarding sleep apnea, though there are multiple records regarding the disability in the record. As the opinion appears to be based on an incomplete medical record, it is inadequate. It is also inadequate as it appears to disregard the Veteran’s lay statements regarding symptoms in service and after service merely because they are unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). Regarding secondary service connection, the December 2020 examiner stated that “there were no medical records for my review concerning his sleep apnea connected to his deviated septum while in service.” This opinion is inadequate as it applied the incorrect legal standard for secondary service connection. The examiner appeared to base the opinion on the fact that a relationship to the service-connected disability was not shown during service. For secondary service connection the evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability, but there is no requirement that the connection between the two disabilities occurred during service. See 38 C.F.R. § 3.310(a). As the opinion is based on incorrect criteria, it is inadequate and remand for a new opinion is required. The Board also notes that the opinion lacks the requested discussion of the February 2013 private opinion regarding sleep apnea and the deviated septum. This should also be addressed upon remand. 2. Entitlement to service connection for hypertension The November 2019 Board decision requested a new VA examination regarding the etiology of the Veteran’s hypertension, including whether it was caused or aggravated by his deviated septum or sleep apnea, and asked the examiner to discuss the February 2013 private opinion regarding the Veteran’s hypertension, sleep apnea and his deviated septum. A December 2020 VA examination found that the Veteran’s hypertension was not due to service or to the Veteran’s service-connected deviated septum. As a rationale, the examiner stated that while the Veteran reported diagnosis in service, there were no medical records regarding hypertension “attained while in service.” Regarding secondary service connection, the examiner simply stated that there were no medical records that the hypertension was due to his deviated septum. The Board finds that the opinion is inadequate for review for several reasons. First, the opinion regarding direct service connection is vague in its reference to whether hypertension was “attained” in service and failed to discuss relevant evidence such as the January 1972 separation examination showing a blood pressure reading of 130/88. It is therefore unclear to the Board that the opinion is based upon a complete and accurate medical history. Second, the opinion regarding secondary service connection lacks a reasoned medical explanation as the examiner did not provide any analysis of the Veteran’s disabilities and appears to rely on the fact that the record does not already contain an etiological opinion. The examiner also did not address the question of aggravation by the service-connected disability. While the examiner included a question about aggravation in the section of the opinion that pertained to conditions that preexisted service, there is no contention in this case that hypertension preexisted service. In addition, the examiner did not provide an answer to the aggravation question even in that portion of the opinion. Finally, the examiner did not discuss the private opinion as requested in the November 2019 Board remand. Remand for a new opinion is therefore required. 3. Entitlement to service connection for coronary artery disease The November 2019 Board decision requested a new VA examination regarding the etiology of the Veteran’s coronary artery disease (CAD), including whether it was caused or aggravated by his deviated septum or sleep apnea, asked the examiner to discuss the private opinion regarding the Veteran’s CAD, sleep apnea and his deviated septum. A December 2020 VA examination diagnosed CAD but found that it was not due to service. As a rationale, the examiner stated that the Veteran was not diagnosed with a heart disability during service and was diagnosed after service in 1996. An opinion based on the absence of a diagnosis in service, as this one, is inadequate and therefore a new opinion is needed. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The opinion is also inadequate as it failed to provide a reasoned opinion regarding secondary service connection. Regarding secondary service connection, the examiner simply repeated the same rationale given for direct service connection, notably omitting any mention of either the Veteran’s service-connected deviated septum or his yet to be service-connected sleep apnea. In addition, the examiner did not address the issue of aggravation by the service-connected disability. Instead, the examiner completed the portion of the form that pertains to disabilities that existed prior to service and opined that CAD was not aggravated during service. Again, the contention in this case is that the Veteran’s CAD was aggravated by his service-connected deviated septum and his yet to be service-connected sleep apnea, not that CAD pre-existed service and was aggravated by service. As the examiner failed to provide an opinion regarding aggravation by the service-connected disability, the opinion is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Board also notes that the examiner did not discuss the private opinion regarding CAD, sleep apnea and deviated septum as requested in the November 2019 Board remand. Remand is therefore required to obtain the requested opinions. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD) The November 2019 Board decision requested a new VA examination regarding the etiology of the Veteran’s coronary artery disease (CAD), including whether it was caused or aggravated by his deviated septum or sleep apnea. A December 2020 VA examination found that GERD was not due to service. As a rationale, the examiner stated that the Veteran thought he had symptoms in service but did not see a doctor and there were no “significant medical records” concerning gastritis in service. The Board finds that the opinion is inadequate as it disregards the Veteran’s lay statements regarding the onset of GERD merely because they are unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). The Board also finds that the opinion is unclear in its finding that there were no “significant medical records” of gastritis in service. The examiner did not explain this term or the basis for finding a record “significant”, and it is therefore unclear whether there were medical records that the examiner deemed insignificant, but which may indicate a link to service. Regarding secondary service connection, the examiner stated that the Veteran did not see a doctor while in service and there were no significant medical records concerning gastritis connected to the service-connected deviated septum “while in service.” Again, for secondary service connection there is no requirement that a relationship between the service-connected disability and the claimed secondary disability be shown in service. As the opinion is based on an incorrect legal standard, it is inadequate. The opinion also lacks the requested discussion of the February 2013 private opinion regarding sleep apnea and the deviated septum. Remand for a new opinion regarding secondary service connection is therefore required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination from a different examiner from the one who provided the December 2020 examination, to determine the etiology of his sleep apnea. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether sleep apnea is at least as likely as not (50 percent or greater probability) related to the Veteran’s active service or whether it was caused or aggravated by the Veteran’s service-connected deviated septum. The opinion should discuss the February 2013 private opinion regarding sleep apnea and deviated septum. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 2. Schedule the Veteran for an appropriate VA examination from a different examiner from the one who provided the December 2020 examination, to determine the etiology of his hypertension. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether hypertension is at least as likely as not (50 percent or greater probability) related to the Veteran’s active service or whether it was caused or aggravated by the Veteran’s service-connected deviated septum or his (as of yet) non-service-connected sleep apnea. The opinion should discuss the February 2013 private opinion regarding hypertension, sleep apnea and deviated septum. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 3. Schedule the Veteran for an appropriate VA examination from a different examiner from the one who provided the December 2020 examination, to determine the etiology of his coronary artery disease. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that coronary artery disease is related to the Veteran’s active service or whether it was caused or aggravated by the Veteran’s service-connected deviated septum or his (as of yet) non-service-connected sleep apnea. The opinion should discuss the February 2013 private opinion regarding coronary artery disease, sleep apnea and deviated septum. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 4. Schedule the Veteran for an appropriate VA examination from a different examiner from the one who provided the December 2020 examination, to determine the etiology of his GERD. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether GERD is at least as likely as not (50 percent or greater probability) related to the Veteran’s active service or whether it was caused or aggravated by the Veteran’s service-connected deviated septum. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 5. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.