Citation Nr: 21032663 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-26 179 DATE: May 27, 2021 ORDER Service connection for a sinus disability, diagnosed as sinusitis, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety and depression, is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for rheumatoid arthritis, to include residual symptoms involving the right and left knee, is remanded. Entitlement to service connection for a right eye disorder is remanded. Entitlement to service connection for a left eye disorder is remanded. Entitlement to service connection for a sleep disorder is remanded. FINDING OF FACT The Veteran's sinus disability first manifested in service and was incurred in service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a sinus disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to February 1994. Following active duty service, the Veteran served in the Air National Guard until 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified before the undersigned Veterans Law Judge in January 2021; a transcript of the hearing is of record. Service Connection for SinusitisLaws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In the instant appeal, the Veteran maintains that his sinus disability symptoms first manifested during active duty service and have persisted since that time. As an initial matter, the Veteran has been diagnosed with a sinus condition. According to a July 2013 VA sinus examination report, the examiner performed x-rays and diagnosed the Veteran with "fluid in maxillary sinus of uncertain etiology or duration coded as acute sinusitis." Service treatment records include a January 1993 sinus radiologic consultation report; at that time, the Veteran was found to have "probable" retention cyst in the right maxillary with mucosal thickening in the maxillary sinuses. A March 2013 computed tomography (CT) of the brain showed evidence of ethmoid and sphenoid sinusitis. As noted above, VA obtained a sinus examination in July 2013. The examiner diagnosed the Veteran with "fluid in maxillary sinus of uncertain etiology or duration coded as acute sinusitis." During the evaluation, the Veteran denied seasonal allergies, but indicated that he had frontal headaches that were worse with damp weather and when using the computer for prolonged periods of time. He also indicated that he had episodes of acute sinusitis while in service. Sinus x-rays showed "mucous or fluid fills one-third of left maxillary sinus." During the January 2021 Board hearing, the Veteran indicated that he first began having sinus issues in 1991 while stationed in England. His symptoms at that time included nasal discharge and severe headaches. The Veteran indicated that his symptoms progressively worsened over time. Upon review of all evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's sinus disability first manifested in service and was incurred in and is attributable to service. The evidence includes a diagnosis of a sinus condition during active duty service in 1993. The Veteran has stated that he experienced sinus symptoms during service, and he has endorsed the same symptoms after service. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board finds the Veteran's testimony both competent and credible. Consistent with the lay reports, the post-service medical records show continued complaints of sinus symptoms. See e. g., March 2013 CT of the brain and July 2013 VA sinus examination report. Based on the foregoing, the Board resolves any reasonable doubt in the Veteran's favor to find that symptoms of a sinus disability first manifested in service and were incurred in service. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303. To this extent, the appeal is granted. REASONS FOR REMAND Active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101 (21), (22), (23), (24), 106; 38 C.F.R. § 3.6 (a), (c), (d) (2020). The Veteran has indicated that he served in the Air National Guard from 1994 to 2013. On remand, the Agency of Original Jurisdiction (AOJ) should verify all periods of ACDUTRA or INACDUTRA through official sources. Psychiatric Disorder The Veteran maintains that his psychiatric disorder, claimed as depression and anxiety, is related to his health problems (including the now service-connected sinus disability). See Board Hearing Transcript at pg. 19. The Veteran has not yet been afforded a VA examination pertaining to his claimed psychiatric disorders. As such, a remand is required to assist the Board in determining the exact nature and likely etiology of any diagnosed psychiatric disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006), Allen v. Brown, 7 Vet. App. 439, 448 (1995). Migraine Headaches The Veteran reports having frontal headaches that are worse in damp weather and when using the computer for prolonged periods of time. The Veteran has described these episodes as "sinus headaches." See July 2013 VA headaches examination report. Service treatment records include a November 1991 optometric evaluation report where the Veteran complained of headaches. The Veteran was afforded a VA examination in July 2013 to ascertain the nature of his claimed headache disability. The examiner diagnosed the Veteran with migraines including migraine variants; however, the etiology of these migraines was not discussed. It is unclear based on the current medical evidence of record whether the Veteran's headaches are related to his now service-connected sinus disability or to other disorders, including his bilateral eye conditions, rheumatoid arthritis, or sleep disorder. As such, a new examination and medical opinion is required. Rheumatoid Arthritis with Bilateral Knee Involvement The Board notes that the Veteran has filed separate claims for rheumatoid arthritis and service connection for a right and left knee disorder. However, the Veteran's knee symptoms have been shown to be causally related to his diagnosed rheumatoid arthritis. Further, chronic residuals of rheumatoid arthritis, such as limitation of motion or ankylosis, are rated under the appropriate Diagnostic Codes for the specific joints involved (which in this case would include the knee joints). See 38 C.F.R. § 4.71a, Diagnostic Code 5002. As such, the Board has recharacterized the issues as service connection for rheumatoid arthritis, to include residual symptoms involving the knees. The Veteran has a confirmed diagnosis of rheumatoid arthritis "involving both knees." See Mercy Health Family treatment record dated October 2019. Essentially, the Veteran contends that, although he was formally diagnosed with rheumatoid arthritis in 2008, his symptoms (including bilateral knee pain) began during his first period of active duty service. See January 2021 Board Hearing Transcript at pgs. 3, 10-12. He further indicated that, although his symptoms first manifested in his knees, he experienced worsening symptoms involving his elbows, shoulders, and feet, which ultimately led him to seek treatment around 2008. The Veteran has also been shown to have a hereditary spleen disorder, which pre-existed service entrance. A December 1990 Report of Medical Examination shows that the Veteran underwent an elective splenectomy due to hereditary spherocytosis in 1985 (prior to service). It is unclear if the Veteran's hereditary spleen disorder is related to his rheumatoid arthritis. The Veteran was afforded a VA examination in July 2013; however, an opinion as to the etiology of the Veteran's diagnosed rheumatoid arthritis was not provided. The Veteran is competent to report experiencing bilateral knee pain during active duty service as these symptoms are capable of lay observation. As such, a remand is warranted in order to obtain an examination and medical opinion to assist the Board in determining the onset and etiology of the Veteran's rheumatoid arthritis. Right and Left Eye Disorders The Veteran maintains that he had reduced vision in the right eye due to service, including being out in direct sunlight while on the flight line. As it pertains to the left eye, the Veteran claims that he has a detached retina. Although a specific date was not indicated, during the January 2021 hearing, the Veteran stated that he was exercising on base and, when returning home from the base, began experiencing left eye blurriness with some loss of vision. Service records dated in September 1992 show that the Veteran was struck in the face by a fist; however, there was no evidence of orbital or periorbital fracture. In 2004, the Veteran had surgical repair of retinal detachment. A December 2004 letter from Dr. Horwitz indicated that the Veteran underwent retinal detachment surgical repair "secondary to high myopia in his left eye" on August 24, 2004. The Board notes that myopia is generally defined as near sightedness and is considered a congenital defect under VA regulations. Congenital and or developmental defects are generally not considered diseases or injuries for which a Veteran can be awarded service connected. 38 C.F.R. §§ 3.303 (c). However, VA permits service connection for refractive errors of the eyes when such defects were subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711)(Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). On remand, the Veteran should be afforded a VA eye examination to assist the Board in determining the exact nature and likely etiology of the Veteran's claimed eye disorders. Although the Veteran was afforded a VA examination in July 2013, an etiological opinion was not provided. Moreover, the Veteran should be asked to clarify the date of his left eye injury while exercising on base. This may assist the Board in determining whether a disease or injury occurred during a period of ACDUTRA or INACDUTRA. Sleep Disorder During the January 2021 Board hearing, the Veteran's spouse testified that she witnessed the Veteran's snoring when they first met in 1993. She also indicated that she remembers the Veteran having bloody noses and sinus issues at that time. The Veteran has not been afforded a VA examination pertaining to his claimed sleep disorder. The Veteran's spouse is competent to report witnessing the Veteran's snoring, bloody noses, and observable sinus issues. As such, a remand is warranted in order to obtain an examination and medical opinion to assist the Board in determining the nature, onset, and etiology of the Veteran's sleep disorder. McLendon, 20 Vet. App. 79. The matters are REMANDED for the following actions: 1. Ask the Veteran to clarify the date of his left eye injury (claimed as a detached retina). The Veteran should indicate the date and whether he was on active duty, ACDUTRA, or INACDUTRA, to the best of his knowledge. 2. Verify ALL periods of ACDUTRA or INACDUTRA through official sources from 1994 to 2013, to include thorough analysis of pay records, if necessary. A notation of such verification should be placed in the claims folder. If the AOJ is unable to comply with the request, so state for the record and explain why. 3. Obtain all outstanding VA treatment records and associate them with the claims file. 4. Then, provide the Veteran with an appropriate VA examination to determine the nature and etiology of his claimed psychiatric disorder(s). The electronic claims file must be made available to the examiner for review. The examiner is then asked to address the following: (a.) List all psychiatric diagnoses pertaining to the Veteran. (b.) For each diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disorder(s) was either caused or aggravated by his service-connected disabilities, to include the service-connected sinus disability. **Please note that for secondary service connection, "aggravation" need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). (c.) All opinions should be accompanied by a clear rationale. 5. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of his migraine disorder. The electronic claims file must be made available to the examiner for review. The examiner is then asked to address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraine disorder first manifested in service, was incurred in service, or is otherwise related to active duty service or a period of ACDUTRA. **The examiner is asked to review and discuss the November 1991 optometric evaluation report where the Veteran complained of headaches during active duty service. (b.) If the Veteran's migraine disorder is not related to active duty service or ACDUTRA, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraine disorder was either caused or aggravated by his service-connected disabilities, to include the service-connected sinus disability. **Please note that for secondary service connection, "aggravation" need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). (c.) All opinions should be accompanied by a clear rationale. 6. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of his diagnosed rheumatoid arthritis. The electronic claims file must be made available to the examiner for review. The examiner is then asked to address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's rheumatoid arthritis or symptoms thereof first manifested in service, was incurred in service, or is otherwise related to active duty service or a period of ACDUTRA. **In doing so, address the Veteran's report that he first experienced bilateral knee pain during his period of active duty service from February 1991 to February 1994. **Please address the relationship (if any) between the Veteran's pre-existing hereditary spherocytosis in 1985 and rheumatoid arthritis. (b.) All opinions should be accompanied by a clear rationale. 7. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of his claimed right and left eye disorders. The electronic claims file must be made available to the examiner for review. The examiner is then asked to address the following: (a.) List all current diagnoses pertaining to the Veteran's right and left eye. (b.) For any eye disorder identified other than myopia, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right and/or left eye disorders first manifested in service, was incurred in service, or is otherwise related to active duty service or a period of ACDUTRA. (c.) If the Veteran has a diagnosis of myopia, the examiner should state whether there was a superimposed disease or injury that occurred during service. **Please address the September 1992 service treatment note regarding the Veteran's face injury. **Please address the Veteran's detached retina and its repair "secondary to high myopia in his left eye" in August 2004. (d.) All opinions should be accompanied by a clear rationale. 8. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of his claimed sleep disorder. The electronic claims file must be made available to the examiner for review. The examiner is then asked to address the following: (a.) Indicate whether the Veteran has a current diagnosis, claimed as a sleep disorder. (b.) Then, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep disorder first manifested in service, was incurred in service, or is otherwise related to active duty service or a period of ACDUTRA. (c.) If the Veteran's sleep disorder is not related to active duty service or ACDUTRA, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep disorder was either caused or aggravated by his service-connected disabilities, to include the now service-connected sinus disability. **Please note that for secondary service connection, "aggravation" need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). (d.) All opinions should be accompanied by a clear rationale. 9. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.