Citation Nr: 21029783 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 20-06 896 DATE: May 17, 2021 ORDER Entitlement to a 30 percent rating for allergic rhinitis, status post polypectomies is granted. REMANDED Entitlement to service connection for obstructive sleep apnea as secondary to the service-connected disabilities, status post polypectomies is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor the Veteran had nasal polyps during the appeal period. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating for allergic rhinitis, status post polypectomies have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1963 to June 1966 and April 1977 to December 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a compensable rating for allergic rhinitis, status post polypectomies The Veteran seeks a higher rating for his allergic rhinitis, status post polypectomies. The applicable rating period is from February 1, 2018, one year prior to the receipt of the claim, through the present. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (discussing the one-year "look-back" period for non-initial increased rating claims). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's allergic rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522, which pertains to allergic or vasomotor rhinitis. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic 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 for allergic rhinitis with polyps. Turning to the relevant evidence of record, the Veteran's medical treatment records show that he has a diagnosis of allergic rhinitis. In October 2018, the Veteran received treatment for his sleep apnea. These medical treatment records revealed that the Veteran had a nasal polyp in the left nostril. The examiner noted that the Veteran will "re-initiate Flonase." The assessment was rhinitis with nasal polyps. In November 2018, the Veteran underwent a VA examination for his sinusitis. The examiner noted that the Veteran has a diagnosis of allergic rhinitis, status post polypectomies, that had its onset in the 1980's. The Veteran reported receiving treatment for chronic sinusitis, allergic rhinitis and polyps. He reported having polyps removed twice while in the Army, and that this condition has worsened. The examiner indicated that the Veteran does not have 50 percent or greater obstruction of the nasal passage on both sides due to rhinitis and no nasal polyps. In June 2019, the Veteran was afforded a VA examination for sinusitis. The examiner noted that the Veteran had a diagnosis of sinusitis. The Veteran reported that the condition began in Korea, and that his nose began to run with crusting. The Veteran's condition has remained the same, three to five times a year he gets crusting. His current symptoms include rhinorrhea with drying and headaches. He treats his condition with antibiotics and Flonase. The examiner stated that the Veteran had polyps removed in his right nostril in 1983 and 1986. The examiner did not check a box to indicate whether or not polyps were currently present. In February 2020, the Veteran submitted a Form 9, that included a statement indicating that his visible polyps notated by a VA doctor, entitle him to a higher rating. In the Veteran's July 2020 correspondence, he stated that a VA physician had observed and noted the presence of a polyp in his left nostril. The Veteran also stated that that the SOC did not reference the finding of the presence of the polyp that was noted by the VA physician, but instead stated his condition had not worsened. In January 2021, the Veteran testified at a Board hearing. The Veteran testified that a Board-certified pulmonologist visualized his polyps and started him on Flonase. The Veteran also testified that VA is missing eight of his records, and as an example stated that his VA records do not reveal that he is using a CPAP machine, when VA issued it to him. The Veteran was able to pinpoint and cite the records that revealed that his treatment provider visualized his polyp in the left nostril. The Board finds that resolving reasonable doubt in the Veteran's favor that he has had polyps during the appeal period and an increased rating to 30 percent is warranted. The October 2018 VA examiner noted the existence of polyps in the left nostril. The Board acknowledges that the Veteran was prescribed Flonase, and that the subsequent examiner did not visually detect any polyp on examination. However, the record is clear that the Veteran has had a history of polyps which were removed in service, and then in October 2018 were again present. Thus, the Veteran is entitled to a 30 percent rating for his allergic or vasomotor rhinitis. Specifically, because polyps were identified in the October 2018 treatment record. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea as secondary to the service-connected disabilities, status post polypectomies is remanded. The Veteran contends that his diagnosed obstructive sleep apnea (OSA) is related to his active service. In the alternative, the Veteran contends that his OSA is secondary to the combination of his service-connected disabilities. In December 2018, the Veteran was afforded a VA examination for his sleep apnea condition. The examiner noted that the Veteran was diagnosed in November 2018 with obstructive sleep apnea. The Veteran reported that his sleep apnea began in the 1980's. He also reported that he is being treated for chronic sinusitis, allergic rhinitis and polyps, which were removed twice. He also reports having insomnia and loud snoring and episodes of apnea when sleeping. The Veteran reports, "current symptoms overlap syndrome of COPD and sleep apnea, sinusitis and allergic rhinitis, insomnia, and loud snoring." The examiner indicated that the Veteran's sleep apnea requires continuous medication but does not require a CPAP machine. The examiner indicated that the Veteran's COPD and insomnia are also signs or symptoms attributable to sleep apnea. The examiner stated that the Veteran had a sleep study performed in June 2018. The functional impact includes fatigue and daytime somnolence. The examiner opined that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected condition. As to the rationale, the examiner explained the risk factors associated with sleep apnea including obesity, age, and male gender. The examiner also stated that, The craniofacial and upper airway abnormalities increases the likelihood of having or developing of sleep apnea. The examples mandibular size abnormal maxilla tonsillar hypertrophy and adenoid hypertrophy. Nasal congestion also increases. Smoking increases the risk three times. Causes are multifactorial. Based on lack of evidence to support the claim, I cannot opine beyond speculation that sleep apnea incurred proximately due to or the result of: bronchial asthma, chronic obstructive pulmonary disease allergic rhinitis, status post polypectomies. The examiner provided potential risk factors but fails to offer a rationale addressing the Veteran's specific condition. In addition, the VA examiner did not provide an opinion as to whether his OSA was aggravated by his service-connected disability. A medical opinion as to secondary service connection is inadequate for the Board's decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner's determination that the disease or injury at issue is not "related to" the service-connected condition is not sufficient to address the aggravation issue. Id. Thus, this medical opinion is inadequate, because it only addresses the causation prong of secondary service connection. In January 2021, the Veteran testified during a Board hearing. The Veteran testified that his sleep apnea was aggravated by the allergic rhinitis, but also it was aggravated by the other service-connected disabilities as well, and by the medications taken to treat those service-connected disabilities. The Veteran testified that he has taken allergy shots since the Army. The Veteran testified that he has found 6-8 studies that show that COPD and asthma aggravate sleep apnea. The Veteran also indicated that his service treatment records (STR's) associated with the file are incomplete. He testified that there are eight years of STR's missing. The Veteran testified that there are also VA records missing. The Veteran identified obtaining treatment at the Atlanta [Decatur] facility. The Board cannot make a fully informed decision on the issue of the Veteran's OSA condition because no VA examiner has opined whether it was aggravated by all of the Veteran's service-connected disabilities or a combination of these disabilities. Therefore, the claim must be remanded in order to obtain an opinion regarding aggravation. The Veteran has also submitted medical treatise evidence linking OSA to his service-connected conditions. The matter is REMANDED for the following action: 1. Obtain service treatment records from July 1963 to June 1966 and April 1977 to December 1995. If any records cannot be obtained the Veteran should be appropriately notified. 2. Obtain any VA treatment records, and any pertinent private treatment records not yet associated with the claims file. The Veteran's authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran should be appropriately notified. 3. Obtain an addendum opinion from an appropriate clinician, other than the clinician that provided the December 2018 medical opinion. The clinician must be provided with and must review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine: (a.) Whether the Veteran's OSA condition is at least as likely as not (50 percent or greater probability) (1) proximately due to his service-connected disabilities individually as well as collectively, (2) aggravated beyond its natural progression by his service-connected disabilities individually or collectively. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. The examiner must also discuss the medical treatise the Veteran identified. (b.) Obtain a direct service connection opinion determining whether the Veteran's OSA condition is at least as likely as not (50 percent or greater probability) related to his military service. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate 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.