Citation Nr: 21040506 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 15-38 432 DATE: July 5, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a sinus disorder is granted. REMANDED Entitlement to service connection for a sinus disorder is remanded. Entitlement service connection for sleep apnea is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity (RUE), claimed as secondary to a cervical spine disorder, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity (LUE), claimed as secondary to a cervical spine disorder. FINDINGS OF FACT 1. In a final rating decision issued in April 2012, the Agency of Original Jurisdiction (AOJ) confirmed and continued the prior denial of service connection for a sinus disorder, characterized as rhinitis medicamentosa. 2. Evidence added to the record since the final April 2012 rating decision, and associated June 2013 statement of the case, is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a sinus disorder. CONCLUSIONS OF LAW 1. The April 2012 rating decision that confirmed and continued the prior denial of service connection for a sinus disorder, characterized as rhinitis medicamentosa, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2011). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a sinus disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2005 to January 2007, from May 2009 to May 2010, and from April 2018 to May 2019. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived AOJ consideration of the evidence associated with the record since the issuance of the December 2016 supplemental statement of the case. 38 C.F.R. § 20.1305(c). The undersigned also held the record open for 30 days for the submission of additional evidence, which was received in May 2021. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a sinus disorder. By way of background, VA received the Veteran's original claim for service connection for a sinus disorder in March 2010. In a February 2011 rating decision, the AOJ considered the Veteran's service treatment records (STRs) from his first two periods of service and an April 2010 VA examination. In this regard, the AOJ noted that the Veteran's STRs reflected a history of rhinitis in March 2010. However, at the April 2010 VA examination, rhinitis medicamentosa was diagnosed, but it was noted that he reported that perennial rhinitis developed prior to service in adolescence and denied exacerbations of such disorder while overseas. Thus, the AOJ found that, as the Veteran's perennial rhinitis existed prior to service and was not permanently worsened as a result of service, service connection for such disorder was not warranted. In February 2012, the Veteran filed an application to reopen his claim for service connection for a sinus disorder. In an April 2012 rating decision, the AOJ considered the same evidence as noted in the February 2011 rating decision as well as post-service treatment records, and confirmed and continued the prior denial of service connection for a sinus disorder, characterized as rhinitis medicamentosa, as the evidence continued to fail to show that such was aggravated by service. Later that month, the Veteran was advised of the decision and of his appellate rights and entered a notice of disagreement in April 2012 and a statement of the case was issued in June 2013; however, he did not perfect his appeal by filing a timely substantive appeal. Additionally, no new and material evidence was physically or constructively associated with the record within the remainder of the appeal period and no relevant service department records that were in existence at the time of the decision has been received. Therefore, the April 2012 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted previously, the Veteran's claim for a sinus disorder was previously denied on the basis that such disorder pre-existed service and was not aggravated therein. However, subsequent to the April 2012 rating decision and associated June 2013 statement of the case, the Veteran has alleged that he did not have a sinus disorder prior to entrance to military service. In this regard, in a February 2014 statement, he reported the onset of his sinus symptoms while deployed. Additionally, at the April 2021 Board hearing, he denied experiencing sinus issues in his adolescence and indicated that he was unclear as to why the April 2010 VA examiner reported such fact. Rather, he testified that, prior to his first deployment in 2005 to Iraq, he had no issues with rhinitis or sinusitis, and believed that his sinus disorder developed as a result of exposure to burn pits, dust, and dry heat in Southwest Asia. Furthermore, in addition to rhinitis, the Veteran's newly received post-service treatment records reflect a diagnosis of sinusitis. Finally, while not of record, the Veteran reported that his private physician had indicated that his sinus disorder was related to his exposure to burn pits in service. Consequently, as the Veteran's claim for service connection for a sinus disorder was previously denied based on a determination that such, diagnosed as rhinitis medicamentosa, pre-existed service and was not aggravated therein, and the newly received evidence, which is presumed credible for the purpose of reopening the claim, suggests that a sinus disorder, diagnosed as rhinitis and sinusitis, did not pre-exist service and rather was incurred therein due to exposure to environmental hazards in Southwest Asia, the Board finds that the evidence added to the record since the final April 2012 rating decision, and associated June 2013 statement of the case, is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a sinus disorder. Thus, as new and material evidence has been received, such claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a sinus disorder. As noted previously, the Veteran contends that he developed a sinus disorder as a result of exposure to environmental hazards, to include burn pits, dust, and dry heat, while serving in Southwest Asia in 2005. In this regard, he reported that he experienced a lot of nosebleeds, congestion, and headaches due to such exposure, and his private physician indicated that his sinus disorder was related to his exposure to burn pits in service as being around that particular type of burning oil could have flared his sinus condition. The Veteran's STRs reflect that, in a September 1996 Applicant Medical Prescreening Form, he denied experiencing asthma or respiratory problems and his October 1996 Report of Medical Examination completed for his enlistment into the Army National Guard, his sinuses and nose were normal upon clinical evaluation. Further, at such time and in June 1999, he denied experiencing sinusitis, hay fever, asthma, or shortness of breath. However, in a February 2010 Post-Deployment Health Assessment, completed following his deployment from June 2009 and March 2010, the Veteran reported seeking treatment for sinus issues during deployment, and was still bothered by such symptoms. In March 2010, the Veteran reported that he had experienced sinus issues since his last examination. The Veteran's other treatment records reflect diagnoses of rhinitis and sinusitis. However, as noted previously, an April 2010 VA examiner noted that the Veteran reported that perennial rhinitis developed prior to service in adolescence and denied exacerbations of such disorder while overseas. However, as indicated previously, the Veteran refutes such account. Additionally, while an August 2019 VA general medical examination reflects a diagnosis of acute sinusitis and the Veteran's report of exposure to environmental hazards in Southwest Asia, no etiological opinion was offered. Similarly, while he submitted a Disability Benefits Questionnaire (DBQ) completed by a private treatment provider in April 2021, which reflects diagnoses of chronic maxillary and frontal sinusitis and allergic rhinitis, no etiological opinion was rendered. Thus, based on the foregoing, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing the etiology of the Veteran's diagnosed sinus disorders, to include whether such did indeed pre-exist any period of service and, if so, whether such was aggravated therein. 3. Entitlement to service connection for sleep apnea. At the April 2021 Board hearing, the Veteran stated that he first started noticing symptoms of sleep apnea in 2011, was diagnosed with such disorder in 2012 or 2013, and believed that such was related to the aforementioned exposure to environmental hazards and/or disrupted sleep schedule while serving in Southwest Asia. Additionally, while not of record, the Veteran reported that his private physician had indicated that his sleep apnea was related to his military service. The Veteran's STRs reflect that, in Post-Deployment Health Reassessments from April 2008, February 2010, and September 2010 for deployments from January 2005 to January 2006 and from July 2009 to March 2010, respectively, the Veteran reported having problems sleeping or still feeling tired after sleeping during deployment. Additionally, his March 2019 separation examination from this third period of service reflects his report of chronic daytime sleepiness, a history of snoring and waking up with headaches, issues getting to sleep and staying asleep, feeling unrested, and snoring. At an October 2015 VA examination for sleep apnea, the examiner noted that the Veteran had not been diagnosed with sleep apnea, but he was scheduled for a sleep study. The Veteran reported that, over the past two years, he had been observed to have loud snoring, and his wife had observed nocturnal apneic spells. He also reported occasional daytime drowsiness. The examiner stated that the Veteran had current symptoms of persistent daytime hypersomnolence, but found that such was less likely than not related to environmental exposures coincident with service in Southwest Asia. In this regard, he explained that there is no clear evidence to suggest environmental exposures during service in the Middle East causes obstructive sleep apnea; rather, individuals with nasal allergies and craniofacial deformities are more likely to have sleep apnea. Further, while the exact cause of sleep apnea is unknown, it is a common disorder in the general population and is no more common in veterans of the Gulf Wars. The examiner stated that, although a sleep study had been scheduled for the Veteran, the outcome would not change this opinion. Thereafter, the Veteran underwent a sleep study in December 2015 and a diagnosis of obstructive sleep apnea was rendered in January 2016. In a February 2016 VA addendum, the examiner reported that the Veteran's sleep study was positive for obstructive sleep apnea, and he now had a CPAP device. Thus, while the October 2015 VA examiner adequately addressed whether the Veteran's sleep apnea is related to his in-service exposure to environmental hazards in Southwest Asia, he did not address whether such is related to his disrupted sleep schedule or his in-service reports of sleep-related symptoms. Moreover, he has a current claim for service connection for a sinus disorder pending and the October 2015 VA examiner indicated that individuals with nasal allergies are more likely to have sleep apnea. Thus, a remand is necessary in order to obtain an addendum opinion addressing such matters. 4. Entitlement to service connection for a cervical spine disorder. 5. Entitlement to service connection for peripheral neuropathy of the RUE, claimed as secondary to a cervical spine disorder. 6. Entitlement to service connection for peripheral neuropathy of the LUE, claimed as secondary to a cervical spine disorder. The Veteran contends that his cervical spine disorder and associated peripheral neuropathy (radiculopathy) of the RUE and LLE is the result of the rigorous of his military service. Specifically, in a June 2012 statement, he reported that, while overseas during active service in 2009 and 2010, he rode in an RG-33 truck for most of his tour, but, when that truck broke down, he had to ride in a MRAPP, which has bouncing seats, for three to eight hours a day. In this regard, he indicated that the roads were very bumpy, and he would bump his head on the roof of the truck, which made his upper back sore. At the April 2021 Board hearing, the Veteran further reported that his military occupational specialty was a tanker, and he believed that his neck pain, which had its onset in 2010, was caused by riding through Iraq in vehicles with spring-loaded seats with body armor and Kevlar on for eight hours a day. While he was only provided pain medication in service, he indicated that, upon his return, he was told that his C5-C6 disc had come together and pinched his spinal canal. He further stated that his physician told him that the arthritis in his neck was most likely caused by the events described above. The Veteran's service personnel records reflect that he served as an armor crewman, a tank crewman, a gunner assistant, and a tank commander. Additionally, his STRs reflect that, in a February 2010 Post-Deployment Health Assessment for a deployment between June 2009 and March 2010, the Veteran reported back pain and, in a March 2010 Report of Medical Assessment, he reported upper back pain for which he had been treated since February 2010. In treatment notes from April 2009 and October 2010, the Veteran reported back pain and back spasms. In December 2018, he indicated that he experienced neck spasms and, in February 2019, he reported neck pain with a history of surgery at C5-C6. In March 2019, the Veteran indicated that he had undergone C5-C6 fusion surgery in October 2014 (2015), but reported an exacerbation of his neck pain while in service. An X-ray showed degenerative changes and osteoarthritis. The Board also notes that, in April 2008, September 2010, March 2019, and October 2019 Post-Deployment Health Reassessments following each of his three deployments, he reported experiencing numbness or tingling in the hands or feet, but did not provide further details. The Veteran's other treatment records reflect his initial complaint of recent sharp pain in his lower neck in January 2011. Chiropractic evaluation an assessment of cervical, thoracic, and sacroiliac segmental dysfunction. In July 2012, an assessment of chronic neck pain syndrome was rendered. At a June 2013 VA back examination, the Veteran stated that, starting in 2010, he had to ride for long periods in a vehicle with spring loaded seats that bounced up and down, and had a constant ache in his neck and intermittent upper back pain. The examiner observed that the Veteran had tenderness in the muscles of the proximal and middle trapezius at the C6 through T5 areas, and an April 2012 X-ray showed cervical spasms. In a February 2014 private chiropractic treatment note, the examiner found some significant distortion beginning with C7 that involved T1 and T2, and this misalignment was creating a wedging on the left side at the cervical brachial junction and a compensatory misalignment in the middle and upper cervical. A January 2015 MRI of the cervical spine showed large extradural defect centrally and to the right impinging on the spinal canal and the right nerve root with a focal area of increased signal consistent with an annular tear probably due to a significant sized disc protrusion at the C5-C6 level. Also, at the C3-C4 intervertebral disc space level, here was an extradural defect centrally and to the right narrowing and impinging on the right vertebral foramen and right nerve root. In an addendum from the next day, the examiner stated that the MRI showed some abnormalities that could be causing the Veteran's neck pain. In a March 2015 VA Primary Care Nurse Practitioner Note, the Veteran reported neck pain that radiated down the bilateral arms at times and caused numbness and tingling in the arms and hands. In treatment notes from April 2015 and August 2015 from the State of Mississippi Military Department Office of the State Surgeon, the Veteran gave a history of cervicalgia, and the examiner diagnosed the Veteran with cervical disc displacement. In a May 2015 private treatment note, the Veteran reported that, in 2010, he was deployed for active duty, and he began noting upper back and neck pain while riding a military vehicle. About 6 months ago, he began noting severe pain radiating into the right upper extremity. The examiner noted that an MRI showed significant disc rupture at C5-C6 with significant neural compression at that level. There was a smaller disc rupture at C3-C4 that was worse on the right. The Veteran presented noting severe numbness and tingling that extended to the dome of the right hand. The examiner gave an impression of HNP C5-C6, right C6 radiculopathy, and carpal tunnel syndrome. In another private treatment note from three weeks later, the Veteran noted numbness, tingling, and pain in both hands; and he complained of difficulty with dropping things. In a September 2015 treatment note, the Veteran presented with complaints of bilateral arm pain and paresthesias. He stated that the symptoms began without a particular inciting event about five months ago. An MRI of the neck revealed possible nerve root impingement at C5-C6 level. In an October 2015 Operative Report, the Veteran was diagnosed with HNP and osteophyte C5-C6, and he underwent an anterior cervical microdiskectomy with partial corpectomy and fluoroscopically guided placement of interbody implant with demineralized bone matrix and screw fixation for interbody arthrodesis C5-6. In a December 2015 private treatment note, the Veteran was noted to be status-post anterior cervical discectomy and fusion at C5-C6. The examiner found that the Veteran's C6 radiculopathy was completely resolved. In a March 2016 VA Primary Care Nurse Practitioner Note, the Veteran reported that, after the October 2015 operation, the pain was gone, but he now had some numbness on the right side of his neck. In an October 2016 treatment note, the Veteran was diagnosed with status-post fusion for cervicalgia, cervical disc displacement, and radiculopathy. A September 2019 EMG/NCS examination on both upper extremities found mild median sensory nerve entrapment neuropathies across the wrists bilaterally (carpal tunnel syndrome) and mild active C7 neuropathies bilaterally. In a November 2019 VA Pain Consult, the examiner found some sclerosis in the femoral neck. An October 2019 treatment note from the State of Mississippi Military Department Office of the State Surgeon diagnosed the Veteran with cervical radiculopathy, which had not resolved. Additionally, while an August 2019 VA general medical examination reflects a diagnoses of status-post cervical surgery fusion C5-C6 with bilateral upper extremity radiculopathy, and the Veteran's report of riding in vehicles with spring-loaded seats during service, no etiological opinion was offered. Similarly, while he submitted a DBQ completed by a private treatment provider in April 2021, which reflects diagnoses of mechanical cervical pain syndrome, degenerative disc disease, and radiculopathy, no etiological opinion was rendered. Thus, based on the foregoing, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing the etiology of the Veteran's diagnosed cervical spine disorder with associated radiculopathy of the RUE and LUE. Accordingly, the matters are REMANDED for the following actions: 1. Forward the record, to include a copy of this remand, to an appropriate VA clinician to obtain an addendum opinion addressing the etiology of the Veteran's sinus disorder. Following a review of the record, the examiner should address the following inquiries: For each current sinus disorder, diagnosed as rhinitis medicamentosa, allergic rhinitis, and chronic maxillary and frontal sinusitis, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the disorder pre-existed his entry to active duty for each period of service: February 2005 to January 2007, from May 2009 to May 2010, and from April 2018 to May 2019. (i) If there is clear and unmistakable evidence that a disorder pre-existed a period of active duty, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during such period of active duty, i.e., was not aggravated during service. If there was an increase in the severity of the disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that a disorder pre-existed a period of active duty, then the examiner is asked whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder had its onset in, or is otherwise related to, such period of active duty, to include the Veteran's in-service exposure to environmental hazards coincident with his service in Southwest Asia, to include burn pits, dust, and dry heat, and/or his documented complaints in February 2010 and March 2010. In offering such opinion, the examiner should consider the Veteran's report that he did not experience any sinus issues prior to his entry to service and his related entrance examination likewise reflects such denial, and normal evaluation of the sinuses and nose. A rationale for any opinion offered should be provided. 2. Forward the record, to include a copy of this remand, to an appropriate VA clinician to obtain an addendum opinion addressing the etiology of the Veteran's sleep apnea. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obstructive sleep apnea, diagnosed by a December 2015 sleep study, had its onset in, or is otherwise related to, his periods of active duty from February 2005 to January 2007, or from May 2009 to May 2010, to include his disrupted sleep schedule or his in-service reports of sleep-related symptoms? (B) Is there clear and unmistakable evidence that the Veteran's obstructive sleep apnea, diagnosed by a December 2015 sleep study, did not undergo an increase in the underlying pathology during his period of active duty from April 2018 to May 2019, i.e., was not aggravated during service? If there was an increase in the severity of the disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. In offering such opinions, the examiner should consider the Veteran's report of having problems sleeping or still feeling tired after sleeping during deployment in Post-Deployment Health Reassessments from April 2008, February 2010, and September 2010 for deployments from January 2005 to January 2006 and from July 2009 to March 2010, respectively, and his report of chronic daytime sleepiness, a history of snoring and waking up with headaches, issues getting to sleep and staying asleep, feeling unrested, and snoring in his March 2019 separation examination from his period of service from April 2018 to May 2019. (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is caused or aggravated by his sinus disorder? For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering such opinion, the examiner should consider the October 2015 VA examiner's statement that individuals with nasal allergies are more likely to have sleep apnea. A rationale for any opinion offered should be provided. 3. Forward the record, to include a copy of this remand, to an appropriate VA clinician to obtain an addendum opinion addressing the etiology of the Veteran's cervical spine disorder with associated radiculopathy of the RUE and LUE. Following a review of the record, the examiner should address the following inquiries: (A) Identify all current diagnosed cervical spine disorders and radiculopathy of the RUE and LUE. (B) For each diagnosed cervical spine disorder with associated radiculopathy of the RUE and LUE, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, his periods of active duty from February 2005 to January 2007, or from May 2009 to May 2010, to include as a result of riding in vehicles with spring-loaded seats with body armor and Kevlar vests on a daily basis during deployment? (C) Is there clear and unmistakable evidence that the Veteran's cervical spine disorder with associated radiculopathy of the RUE and LUE did not undergo an increase in the underlying pathology during his period of active duty from April 2018 to May 2019, i.e., was not aggravated during service? If there was an increase in the severity of the disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. In offering such opinions, the examiner should consider the fact that the Veteran served as an armor crewman, a tank crewman, a gunner assistant, and a tank commander with three deployments to Southwest Asia, and his STRs reflect complaints of upper back pain beginning in February 2010. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.