Citation Nr: 21026444 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-29 038 DATE: May 3, 2021 ORDER The application to reopen the claim of entitlement to service connection for a low back disability is denied. The application to reopen the claim of entitlement to service connection for hearing loss disability is denied. Service connection for sleep apnea is denied. A rating in excess of 50 percent for maxillary sinusitis is denied. A rating in excess of 10 percent for deviated nasal septum (traumatic) is denied. A rating in excess of 10 percent for rhinitis is denied. REMANDED Service connection for posttraumatic stress disorder (PTSD) is remanded. Service connection for an acquired psychiatric disorder other than PTSD is remanded. A rating in excess of 10 percent for left ankle disability is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an April 2014 rating decision, the RO denied service connection for a low back disability and hearing loss disability; the decision was unappealed as to hearing loss and while a notice of disagreement was filed and a February 2015 statement of the case (SOC) was issued as to the low back claim, an appeal was not perfected thereafter. 2. Evidence received since the April 2014 rating decision as to hearing loss and since the February 2015 SOC as to the low back is cumulative and redundant of evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claims of service connection for a low back disability or hearing loss disability. 3. Sleep apnea was not manifest in service and is not attributable to service. 4. The Veteran's maxillary sinusitis has been assigned the maximum schedular rating available for that disability. 5. The Veteran's deviated septum is traumatic, with 50-percent obstruction of the nasal passage on both sides. 6. The Veteran's rhinitis is not manifested by polyps. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claims of service connection for a low back disability or hearing loss disability, the claims are not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 50 percent for maxillary sinusitis have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, DC 6513. 4. The criteria for a rating in excess of 10 percent for deviated septum, traumatic, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, DC 6502. 5. The criteria for a rating in excess of 10 percent for rhinitis have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, DC 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1996 to May 1997. He had some additional service in the reserves/National Guard to include a period of service in May 2004 in Turkey wherein he injured his left ankle, which is service-connected. He also fractured a nasal bone in Turkey in 2006 and is service connected for the sinusitis, deviated nasal septum and rhinitis as a result. He also had active duty training from July 1984 to September 1984. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2019 Board hearing. It was determined at the hearing that the issues to be discussed included only an increased rating for the left ankle, service connection for depression and PTSD, and TDIU. The VLJ identified these as the issues that were being discussed at the hearing following consultation with the Veteran and his attorney. The VLJ also clarified the concept of service connection and increased rating claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claims and inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. New and Material Evidence 6. The application to reopen the claim of entitlement to service connection for a low back disability is denied. 7. The application to reopen the claim of entitlement to service connection for hearing loss disability is denied. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board is required to consider whether new and material evidence has been received warranting the reopening of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. These two claims were denied in an April 2014 rating decision which noted that (1) the low back disorder pre-existed service and was not aggravated by service and (2) the current hearing loss was not related to service. The appellant was notified of the decision. No notice of disagreement or new and material evidence was submitted within one year and the decision became final as to the hearing loss claim. As to the back claim, the Veteran filed a notice of disagreement and the RO issued a statement of the case (SOC) in February 2015. An appeal was not perfected, and the decision became final. Evidence of record at the time of the April 2014 rating decision included the Veteran's two DD 214s, service treatment records, National Guard service records, his August 2013 VA Form 21-526 EZ: Application for Disability Compensation and Related Compensation Benefits, a Statement in Support of Claim received in August 2013, VA examination for hearing loss in April 2014, VA treatment records from July 2013 through April 2014 and private treatment records from various providers submitted by Veteran. Evidence considered in February 2015 SOC also includes VA treatment records dated into February 2015. As to hearing loss, the April 2014 VA examination reflects diagnosis of bilateral sensorineural hearing loss. The claim was denied because the evidence did not show an event, disease or injury in service. STRs did not contain complaints, treatment, or diagnosis for hearing loss. The VA examiner noted normal hearing at the end of his 'active duty period in 2008' with no significant changes in thresholds when compared to his enlistment examination in 1983. In addition, the RO noted that it did not concede the cumulative effects of military noise exposure or acoustic trauma during his Reserve or National Guard service to be an injury in the line of duty in order to establish service connection. It noted that his records do not show a Line of Duty Determination indicating that hearing loss was incurred or aggravated by a qualifying period of active duty for VA purposes. Based on this, service connection for hearing loss was denied. It was explained that active duty for training is only considered active duty if service connection can be granted for a condition incurred in or aggravated during the period of active duty for training, or for a condition resulting from an acute myocardial infarction, a cardiac arrest, ora cerebrovascular accident while proceeding directly to or returning directly from a period of active duty for training. For service consisting of inactive duty training (drill), service connection may be granted only if (1) the disability results from an injury directly incurred in or aggravated during the period of inactive duty training, or (2) the disability results from an acute myocardial infarction, a cardiac arrest or a cerebrovascular accident that occurred during such training or that occurred while proceeding directly to or returning directly from such training. It was noted that the mere fact that a chronic disease or disability is recorded or diagnosed during a routine physical examination for retention purposes during Reserve or Guard service does not establish that the disease or disability was actually acquired during a specific period of active duty for training. As to the low back, the record showed he underwent back surgery in 1991 at L5-S1, which was, as noted by the RO, not during a period of active service for VA purposes. There was current diagnosis of lumbar disc disease. STRs did not contain complaints, treatment, or diagnosis for the low back condition. The RO noted that the evidence shows that lower back condition existed prior to service and that there was not an event, disease or injury in service. It was noted that there was no objective evidence of worsening of a pre-existing condition, necessary to establish service connection by aggravation. There was no evidence that the condition permanently worsened as a result of service. There was no additional injury or event, resulting in any treatment of a back condition during a qualifying period of service, nor was there evidence of a Line of Duty Determination regarding a back condition or injury. Therefore, service connection for lower back based on aggravation was denied. In connection with the July 2016 application to reopen, the appellant submitted newer treatment records reflecting ongoing reported symptoms of the back and noting the finding of hearing loss. Also, medical records from Social Security Administration (SSA) show he was found disabled by their rules in November 2013 with a primary diagnosis as asthma and secondary diagnosis as back disorder. Here, the record continues to reflect that he underwent back surgery in 1991, again not during a period of active service. There is a confirmatory diagnosis of lumbar disc disease. STRs still do not contain complaints, treatment, or diagnosis for the low back condition. The RO noted that the evidence shows that lower back condition existed prior to service and that there was not an event, disease or injury in service. There is no objective evidence of worsening of a pre-existing condition. There was no evidence that the condition permanently worsened as a result of service. As to hearing loss, the evidence added simply suggests that symptoms of hearing loss continue. There is minimal substantive evidence even of that fact. The Board finds that the evidence submitted since the aforementioned denials of service connection to be redundant or cumulative of the evidence of record at the time of the last prior final decision. The RO had previously considered the fact that the appellant had a pre-existing low back disorder and current back complaints. Also, current hearing loss complaints were associated with the previous denial. There is still no evidence that hearing loss was present prior to the 2014 examination or that it is otherwise related to a qualifying period of service. His statements as to a relationship between these conditions and service remain general and redundant at best and there remains no new evidence that the conditions are related to a qualifying period of service. The critical facts have not changed: there is no evidence of a connection between a current hearing loss disability and service nor is there evidence that the pre-existing low back condition was aggravated in a qualifying period of service. This evidence is not material. Consequently, the claims may not be reopened because no new and material evidence has been received. While 38 C.F.R. § 3.156 (a) creates a low threshold, and does not require new and material evidence as to each previously unproven element of a claim, the appellant has not presented new and material evidence with respect to any previously unproven element of these claims. The applications to reopen are denied. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (peacetime), 1131 (wartime). In the context of Reserve or National Guard service, the term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. In general, to establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). 8. Service connection for sleep apnea is denied. The Veteran seeks service connection for sleep apnea, which he believes is attributed to active duty. He filed his claim in July 2016, and it was denied in a February 2017 rating decision. Here, the Board notes that the Veteran had a diagnosis of sleep apnea dating from approximately October 2014, many years following active service. The issue for the Board thus is whether the Veteran's sleep apnea began during service or is at least as likely as not related to service. Initially, the Board notes that there was no diagnosis of sleep apnea in service or for years following separation from a qualifying period of service. The first indication of sleep apnea is in an April 2012 National Guard treatment record reflecting that he had possible obstructive sleep apnea. The October 2014 sleep study indicates mild obstructive sleep apnea. However, the preponderance of the evidence is against finding that it is related to Federal service for the following reasons. A January 2017 VA medical opinion that was based on review of the record to include the lay statements, interview and examination of the Veteran, is against the claim. The examiner concluded that sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was as follows: Veteran claims he developed sleep apnea that was caused by his active military service. Veteran states the poor sleep he experienced of 3-4 hours per night over time led to his development of sleep apnea. On review of STRs, veteran did complain of sleep difficulties including difficulty falling or staying asleep, waking up early etc. but no mention of symptoms associated with sleep apnea such as snoring or stopping breathing while sleeping etc. Poor sleep architecture in and of itself does not cause sleep apnea. Veteran has several risk factors for developing OSA including obesity, enlarged neck, tobacco use, history of deviated nasal septum. Therefore, I feel it is less likely than not (<50%) that veteran's OSA was caused by his active military service. This supports the conclusion that sleep apnea was not incurred during or aggravated by service and is not otherwise related to service. Indeed, sleep apnea was not reported as suspected in the record until, nor was it diagnosed until 2014, years following active service. The VA opinion is detailed and well-supported. Because it is informed by knowledge of the Veteran's health as evidenced in the report, is not inconsistent with the documented record, and cites to critical facts in the record, the Board finds the VA opinion to be credible and probative of the issue of nexus. The Board finds the conclusions as to etiology to be sound as to the unique facts of this case. The examiner's conclusions are uncontroverted by any other medical opinion evidence of record, and they are unfortunately not favorable to the claim. The Board accords it substantial probative weight as to the conclusion that sleep apnea is not related to service. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The opinion is adopted. There was no sleep apnea during a qualifying period of service. The Veteran's lay theory is of significantly less probative weight when compared with the objective record. Here, we note that the VA examiner explained that the lay observations are insufficient to establish actual sleep apnea in this case, explaining that poor sleep architecture in and of itself does not cause sleep apnea. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for the Veteran's theory, preponderates against the claim. As the preponderance of the evidence is against the claim of service connection for sleep apnea, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 9. A rating in excess of 50 percent for maxillary sinusitis is denied. 10. A rating in excess of 10 percent for deviated nasal septum (traumatic) is denied. 11. A rating in excess of 10 percent for rhinitis is denied. The Veteran filed claims for increased ratings for these disabilities in July 2016. The 10 percent ratings for deviated septum and rhinitis were granted as a result of this claim, whereas the 50 percent rating for sinusitis was continued. Sinusitis Sinusitis is rated 50 percent under Diagnostic Code 6513 for Sinusitis, maxillary, chronic, under the Schedule of Ratings, Respiratory System, Diseases of the Nose and Throat. Under the General Formula for Sinusitis, a 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A 50 percent evaluation represents the maximum schedular rating available under the DC for sinusitis. Therefore, an evaluation in excess of 50 percent cannot be granted. The Board also notes that this disability is referred to as maxillary sinusitis, claimed as headaches associated with deviated septum, in the rating sheets. To assign a rating for sinusitis under Diagnostic Code 6513 and a separate rating for headaches under Diagnostic Code 8100 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Both disabilities, sinusitis and headaches, are rated based upon the symptoms of headaches, and only one rating is appropriate for that symptom or manifestation. Moreover, the treatment record is replete with reference to his denial of headaches. The Board acknowledges the Veteran's symptoms and the difficulties that have accompanied those symptoms, as reflected in the treatment record and the September 2016 VA examination. Nevertheless, the rating criteria do not permit an evaluation in excess of 50 percent for this disability. Also, all of these symptoms fall within the description of manifestations for the 50 percent criteria. We further note that the examiner found that none of the Veteran's sinus, nose, throat, larynx or pharynx conditions impact his ability to work. Therefore, the claim is denied. Deviated septum (traumatic) Deviated septum (traumatic) is rated 10 percent under Diagnostic Code 6502 under the Schedule of Ratings, Respiratory System, Diseases of the Nose and Throat. A 10 percent rating is warranted for septum, nasal, deviation of, traumatic only, with 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 10 percent evaluation represents the maximum schedular rating available under DC 6502 for deviated septum (traumatic). Therefore, an evaluation in excess of 10 percent cannot be granted. There are no other identified manifestations of this disability noted in either the treatment record or the September 2016 examination report. The examination report reflects that he has had a deviated septum since he fractured a nasal bone and orbital bone in 2006 while in Turkey. There is 50-percent obstruction of the nasal passage on both sides. The Board notes that the ratings for maxillary sinusitis and rhinitis include pain and other symptoms associated with the nose/respiratory system. We find no symptoms unaccounted for that can be attributed to the deviated septum. To assign a rating for any of symptoms already rated under DCs 6513 (Sinusitis) or 6522 (Rhinitis) would, again, constitute impermissible pyramiding. The rating criteria do not permit an evaluation in excess of 10 percent for this disability. Essentially, simply the existence of the deviated septum, traumatic, itself supports the 10 percent criteria, and no higher. Again, there is no functional impact as noted by the examiner. Therefore, the claim is denied. Rhinitis Rhinitis is rated 10 percent under Diagnostic Code 6522 under the Schedule of Ratings, Respiratory System, Diseases of the Nose and Throat. A 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted when there are polyps. Neither the treatment record nor the September 2016 examination report reveals that there is rhinitis with polyps. Relevant to rhinitis, the examination revealed complete obstruction on the left side due to rhinitis but no polyps. Again, there is no functional impact as noted by the examiner. The preponderance of the evidence is against the claim. There is no evidence of polyps, indeed there is affirmative evidence that they are not present. The Veteran's vague assertions that a higher rating is supported are outweighed by the documented absence of polyps. There are no other ratable manifestations of the rhinitis. Here, we find that the criteria for a higher rating are not met or approximated. Therefore, the claim is denied. REASONS FOR REMAND 1. Service connection for posttraumatic stress disorder (PTSD) is remanded. 2. Service connection for an acquired psychiatric disorder other than PTSD, to include depression, is remanded. At the August 2019 hearing, the Veteran testified that one of the stressors for his diagnosed PTSD was an incident involving flying over Iraq to and from his duty station in Turkey in 2004. We note that the Veteran indeed has been awarded service connection for the left ankle disorder based on injury during his service in Turkey in 2004. Here, we also note that the VA examination for PTSD in March 2015 yielded a diagnosis of PTSD based on a stressor of 'Military service and being threatened/seeing dead bodies in Panama and El Salvador'. This stressor was the only one considered on the examination, and the service personnel record fails to document that he was in these places during a qualifying period of service. He reported the incident of flying over unfriendly airspace to and from Turkey in a May 2015 stressor statement, but in less detail than he did at the hearing. An October 2015 VA memorandum reflects the RO's conclusion that there was insufficient evidence to allow for a meaningful search by the Joint Services Records Research Center (JSRRC) to corroborate his stressors, to include this one. The Veteran has provided more detailed testimony before the undersigned about his stressors and how they have caused his current mental health problems. Also, VA treatment records, dated after the March 2015 examination that yielded no diagnosis other than PTSD, reflect that he now does have depression. He testified that he has depression due to service or service-connected disabilities. In light of the Veteran's more detailed testimony and the current record, we find that additional development is warranted to attempt to verify stressors and to ascertain whether there is current PTSD based upon a valid stressor or whether there is any other psychiatric disability otherwise due to service or related to service-connected disability. The Veteran should be provided an opportunity to have his reported stressors fully considered and to report for VA mental health examination. 3. A rating in excess of 10 percent for left ankle fracture is remanded. At the August 2019 hearing, the Veteran testified that his residuals of left ankle fracture had worsened since the most recent VA examination which was performed in August 2016. Following the hearing, the Veteran filed another claim for increased rating for the left ankle in November 2020 at the RO. He was then afforded a VA examination of the left ankle in February 2021. Also, considerable additional VA treatment records have been added to the claims folder. Under the circumstances, the claim should be returned to the RO for initial review of this evidence prior to Board review of this pending appeal. 4. TDIU is remanded. At the hearing, the Veteran's attorney-representative requested that a claim for TDIU be considered in conjunction with the appeal. The undersigned accepted testimony as to the issue at the hearing. In July 2016, the Veteran has submitted a VA Form 21-8940, application for TDIU. He has reported that he is disabled and prevented from securing or following any substantial gainful occupation due to PTSD, back, hip, knee, ankle, elbow and nose disorders and hearing loss. He is service-connected for some of these disorders, but not all. Also, multiple disabilities that he claims contribute to TDIU are on appeal and being developed at present. The TDIU claim is inextricably intertwined with the claim being remanded. Also, evidence obtained in relation to the left ankle claim as well as with these other claims on appeal could have an impact on the TDIU claim. TDIU therefore must be remanded. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's in-service stressors, including whether it is likely that he encountered hostile aircraft in association with his service in Turkey. See Veteran's August 2019 hearing testimony. If more details are needed, contact the Veteran to request the information. 2. After the Veteran's reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to service or (1) proximately due to service-connected disease or injury, or (2) aggravated by service-connected disease or injury. 3. After the above development, and any additionally indicated development, readjudicate the issues on appeal to include entitlement to an increased rating for the left ankle disability and the inextricably intertwined issue of entitlement to a TDIU, with a review of all of the evidence. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his attorney-representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL 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.