Citation Nr: 21042547 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-41 914 DATE: July 13, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to chronic sinusitis is granted. Entitlement to a compensable evaluation for chronic sinusitis prior to November 12, 2019, and in excess of 10 percent thereafter, is denied. FINDINGS OF FACT 1. The competent and credible evidence of record is at least in equipoise that the Veteran's sleep apnea is caused by his service-connected sinusitis. 2. Prior to November 12, 2019, the Veteran's sinus disability has not been productive of three to six episodes per year of non-incapacitating episodes of sinusitis or any incapacitating episodes. 3. From November 12, 2019, the Veteran's sinus disability has not been productive of more than six episodes per year of non-incapacitating episodes or any incapacitating episodes. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for sleep apnea on a secondary basis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Prior to November 12, 2019, the criteria for an initial compensable disability rating for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.97, Diagnostic Code 6513. 3. After November 12, 2019, the criteria for a disability rating in excess of 10 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1983 to February 1989. This appeal comes before the Board of Veterans' Appeals (Board) from October 2013 and January 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Virtual Board hearing before a Veterans Law Judge in May 2021. A transcript is of record. The Veteran was issued an October 2013 rating decision that included the issues of service connection for depression and residuals of myocarditis. The Veteran appealed the denial of these claims in conjunction with his claim for an increased evaluation for sinusitis and sleep apnea. The RO granted these claims and they are no longer on appeal. Therefore, the only issues before the Board are listed on the title page of this decision. 1. Entitlement to service connection for sleep apnea as secondary to chronic sinusitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that his obstructive sleep apnea is caused or aggravated by his service-connected chronic sinusitis. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An October 2010 private sleep study noted a diagnosis of obstructive sleep apnea. The Board also notes that the Veteran meets the second element for secondary service connection as he is properly service connected for chronic sinusitis. Third, the Board finds that the evidence of record does support a finding that the obstructive sleep apnea is related to the Veteran's sinusitis. The Veteran was provided with a VA examination in February 2020 and the examiner was asked to provide a secondary service connection opinion. The examiner determined that it was less likely than not that the Veteran's sleep apnea was due to his service-connected sinusitis. The examiner related the Veteran's sleep apnea to his current obesity. The examiner noted that sleep apnea was caused by soft tissue relaxing and blocking the airway which occurs with aging and weight gain. The Board notes that no aggravation opinion was provided. In March 2020, the Veteran provided a disability benefits questionnaire completed by a private physician. The examiner found that the Veteran's sleep apnea was more likely than not caused by his sinusitis. The examiner stated that it was well known that sinusitis caused a blockage in the nasal passages and closed off airways. The examiner noted that if left untreated, sinusitis could develop into sleep apnea. The Board finds both the private and VA causation opinions to be probative and persuasive. As the Veteran presented a positive private medical opinion that is uncontradicted the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's sleep apnea manifested due to his service-connected sinusitis. As such, after resolving reasonable doubt in the Veteran's favor, the Board finds the final element of service connection has been met. In conclusion, the Board finds that the competent and credible evidence of record is at least in equipoise that the Veteran's sleep apnea is secondary to his service-connected sinusitis. Based on the foregoing, the Board grants the Veteran's claim for entitlement to service connection for sleep apnea secondary to his service-connected sinusitis. 2. Entitlement to a compensable evaluation for chronic sinusitis prior to November 12, 2019 is denied. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the United States Court of Appeals for Veterans Claims has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). For this period, the Veteran's sinus disability was provided a noncompensable rating under DC 6513. The Veteran contends that this rating does not adequately reflect the severity of his sinus disability. The General Rating Formula for Sinusitis provides a noncompensable rating for sinusitis that is detected by X-ray only. 38 C.F.R. § 4.97, DC 6513. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or, more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. A 50 percent rating is assigned 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. Id. A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. Incapacitating episodes of sinusitis are ones that require bed rest and treatment by a physician. The Veteran provided a privately completed disability benefits questionnaire in August 2013. He was diagnosed with chronic sinusitis and allergic rhinitis. The Veteran reported headaches, nasal obstruction, polyps, runny nose, and watery eyes. The examiner determined that the Veteran did not need continuous medication for control of a sinus condition. The examiner noted that he did not have non-incapacitating or incapacitating episodes due to his sinusitis. The examiner also noted that the Veteran had not had any sinus surgery. The sinus condition did not impact his ability to work. August 2013 x-rays of the Veteran's sinuses indicated that his paranasal sinuses were normal. Subsequent August 2013 private treatment records indicated that the Veteran underwent a balloon sinuplasty. The Veteran reported symptoms of sinus pressure, pain, and nosebleeds. Records indicated that the Veteran tolerated the procedure well and postoperative records noted that the surgical site healed well without infection. No abnormalities were noted and there was no acute purulence or polyps. The Veteran complained of migraine headaches throughout the appeal period, but it was determined in a January 2019 VA record that the headaches were posttraumatic migraines without aura associated with a 1985 motor vehicle accident. March 2019 VA medical records noted that the Veteran's paranasal sinuses were clear. The August 2013 disability benefits questionnaire is the most probative evidence of record, and is afforded significant weight. It is comprehensive, and not contradicted in any pertinent part by the other evidence of record. The Board finds that the Veteran does not qualify for a compensable evaluation. The Veteran is competent to describe symptoms that he perceives with his senses and to give evidence about what he experiences. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). His statements, however, do not indicate that the Veteran has incapacitating episodes requiring bed rest and treatment by a physician or three to six non-incapacitating episodes per year. The Board also notes that the Veteran had a sinuplasty procedure in August 2013; however, the procedure was successful and healed without sequela. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis. As such, his sinusitis does not warrant a compensable evaluation based on the schedular criteria. Nasal congestion and painful sinuses are symptoms that do not meet the minimum schedular requirements for a compensable evaluation. The evidence preponderates against the claim, and there is no doubt to resolve. 38 C.F.R. § 4.3. The requested increase remains denied. The Board notes that the Veteran was also diagnosed with allergic rhinitis in the August 2013 disability benefits questionnaire. The examiner attributed the Veteran's symptoms of polyps and more than 50 percent nasal obstruction to the allergic rhinitis condition. Because chronic sinusitis is specifically listed in the rating schedule, it may not be rated by analogy under a different DC. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The August 2013 examination specifically attributed the symptoms not contemplated by the sinusitis diagnostic code to his allergic rhinitis. If the Veteran believes his allergic rhinitis condition is either due to service or secondary to a service-connected disability he is invited to file a claim for this condition. 3. Entitlement to an evaluation in excess of 10 percent for chronic sinusitis following November 12, 2019 is denied. The Veteran underwent a final VA examination in December 2019. The Veteran reported symptoms of episodes of sinusitis, tenderness, and purulent discharge. The examiner noted that the Veteran suffered from four non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge. The Veteran did not have any incapacitating episodes of sinusitis. The Veteran's August 2013 balloon sinuplasty was noted. The Veteran had not had radical sinus surgery with resulting chronic osteomyelitis and the Veteran had not had multiple sinus surgeries. The Veteran's sinusitis did impact his ability to work in that the Veteran would not be able to work in dusty environments. The examiner determined that the Veteran would be able to work in such environments with the use of a mask or respirator. The Veteran complained of sinus headaches in a December 2019 VA treatment record. February 2020 private treatment records noted that the Veteran underwent another bilateral balloon sinuplasty that was completed without complication. March 2020 private treatment records indicated that the Veteran did not have nasal polyps, tumors, or lesions. The septum was intact; however, there was evidence of septal swelling and turbinate hypertrophy. The Veteran reporting two to three sinus infections per year lasting about three weeks each. Symptoms included sinus pain, pressure, nasal obstruction, headaches, sneezing, etc. During the May 2021 hearing, the Veteran complained of migraines and crusty discharge. He reported having more than six non-incapacitating episodes of sinusitis. The Veteran underwent the two balloon sinuplasty surgeries and both physicians noted that the procedures were well tolerated and completed without sequela. No other sinus procedures are of record. There was no evidence of chronic osteomyelitis and it was noted in the January 2020 VA examination that the Veteran did not suffer from near constant or constant episodes of sinusitis. In order to warrant the next higher rating, the evidence must show three or more incapacitating episodes or more than six non-incapacitating episodes. The December 2019 VA examination indicated that the Veteran had four non-incapacitating sinus related episodes. No incapacitating episodes were noted. The Veteran's private treatment records also indicated that the Veteran had sinus infections two to three times a year, with each infection lasting about three weeks. The Veteran's medications were noted and there was no indication in these records that the Veteran was ever put on bedrest. As such, neither the medical records nor VA examination establish more than six non-incapacitating episodes of sinusitis or any incapacitating episodes during the period at issue. The Board also notes that the Veteran underwent two balloon sinuplasty surgeries and both physicians noted that the procedures were well tolerated and completed without sequela. No other sinus procedures are of record. There was no evidence of chronic osteomyelitis and it was noted in the January 2020 VA examination that the Veteran did not suffer from near constant or constant episodes of sinusitis. The Board acknowledges the Veteran's testimony during the May 2021 Board hearing that he has more than six non-incapacitating episodes of sinusitis. The Veteran is competent to report his symptoms and has presented credible testimony. However, the Board finds that the medical evidence does not demonstrate that the criteria for the next higher evaluation has been met. The medical evidence, both from private physicians and the VA, indicate that the Veteran suffered from, at most four non-incapacitating episodes of sinusitis. Thus, the Board finds that a rating in excess of 10 percent for chronic sinusitis is not warranted and the claim must be denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.