Citation Nr: 22013549 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-34 679A DATE: March 9, 2022 REMANDED Entitlement to service connection for chronic sinusitis is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected traumatic brain injury (TBI) is remanded. Entitlement to service connection for bilateral flatfoot is remanded. Entitlement to service connection for bruxism, to include as secondary to service-connected TBI and/or post-traumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air National Guard from March 1997 to July 1997 and from March 2002 to July 2002, with subsequent additional periods of active duty for training (ACDUTRA) in the Illinois Army National Guard and Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2012, December 2013, and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). At an October 2021 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 1. All Claims The Board notes that there are multiple copies of orders to ACDUTRA in the claims file. However, there has been no identification and verification of all ACDUTRA periods during the Veteran's National Guard/Reserves service. As such, remand is needed to clarify all periods of ACDUTRA and/or inactive duty for training (INACDUTRA) during the Veteran's service. Further, although service treatment records (STRs) from the periods of active duty and some STRs from inactive duty have been added to the claims file, the Veteran testified to medical treatment that is not reflected in the available records. Therefore, to ensure that all relevant evidence is of record before decisions are rendered on the claims, attempts to associate any outstanding STRs should be undertaken upon remand. Additionally, the Veteran noted at the October 2021 hearing that he received VA treatment and private medical treatment. To ensure all relevant evidence is in the claims file, attempts to identify and associate any outstanding private treatment records should be undertaken upon remand. 2. Entitlement to service connection for chronic sinusitis is remanded. The Veteran has contended that that is currently-diagnosed chronic sinusitis is the result of his active service, to include as due to an open fracture of the left orbital floor suffered during a period of ACDUTRA in March 2011 for which his is service-connected for several residuals including a TBI. The Veteran's February 1997 enlistment examination noted that he had normal sinuses upon evaluation and he himself denied sinusitis on a report of medical history. In April 1997, during his first period of active duty service, it was noted that the Veteran had sinus complaints for two days. He was diagnosed with sinus congestion. Subsequent STRs reflected that he was on medication for a sinus problem (April 2006), had normal sinuses upon examination and denied sinusitis (January 2007), and experienced a sinus infection (August 2009, during an ACDUTRA period). During a period of ACDUTRA in March 2011, the orbital fracture occurred. A computed tomography (CT) scan was conducted which revealed comminuted lateral and posterior left maxillary sinus fractures with concomitant subcutaneous emphysema and orbital emphysema. A subsequent STR reflected in June 2012 that the Veteran had been having chronic sinus infections since the March 2011 injury, experiencing three infections in the past year. Recurrent sinusitis was listed in the Veteran's past medical history in VA treatment records since February 2013. Multiple VA notations reflected subsequent ongoing episodes of sinus congestion and sinusitis diagnoses. Two VA examinations were conducted in connection with the Veteran's service connection claim. In June 2012, he told the examining clinician that he used to have sinus infections approximately every two years but after the March 2011 fracture, he had had 3 infections. The examiner concluded that he had no current sinusitis and provided a negative nexus opinion. The examiner stated that the Veteran had had sinus infections before the injury and had them afterwards. It was less likely than not that the fracture contributed significantly to his sinus infections. No rationale for this conclusion was provided. At an October 2014 VA examination, the Veteran reported that ever since his facial fracture, he had had repeat attacks of sinusitis 3 to 4 times a year. The examiner found no evidence of sinusitis on CT scan, magnetic resonance imaging (MRI), or nasal endoscopy. No etiology opinion was provided. The examiner did not address the noted current medical problem of recurrent sinusitis or the diagnoses of multiple episodes of sinusitis in the medical records. At the October 2021 hearing, the Veteran testified that his sinusitis began with the March 2011 injury and he currently experienced 3 to 4 episodes each year. He noted that his treating clinicians had suggested that his sinusitis might be secondary to his service-connected TBI. Following the requested development above regarding the Veteran's verified ACDUTRA service and potentially missing STRs, the Board finds that a new VA examination and opinion are needed before a decision may be rendered on the claim. Sinus congestion was diagnosed during the Veteran's first period of active duty. Subsequent complaints were noted in STRs that may or may not be during ACDUTRA periods. The March 2011 injury occurred during a period of ACDUTRA. Later records reflected recurrent sinusitis diagnoses. Accordingly, a medical opinion is needed as to whether the Veteran's current chronic sinusitis is related to the April 1997 active duty notation, and/or whether the March 2011 injury aggravated a preexisting chronic sinusitis. There is no entrance examination for the March 2011 period of ACDUTRA currently in the claims file, but as additional STRs may be obtained upon remand, differing medical determinations will be sought from the examiner. Further, although the Veteran may not have had an episode of sinusitis during prior examinations, it is evident from the record that he has a diagnosis of recurrent sinusitis and documented episodes throughout the appeal period. As such, any medical opinion must address the clear evidence of recurring symptomology. 3. Entitlement to service connection for sleep apnea, to include as secondary to service-connected TBI is remanded. The Veteran has contended that his currently-diagnosed sleep apnea is the result of his active service, specifically the March 2011 injury which resulted in a service-connected TBI, now rated as PTSD with residuals of TBI. There are no relevant complaints, symptoms, treatment, or diagnosis of sleep apnea in the currently-available STRs. Sleep apnea was first diagnosed by sleep study in May 2014 following complaints of snoring and insomnia. The Veteran was diagnosed with moderate obstructive sleep apnea. A VA examination was conducted in October 2014. The examiner diagnosed obstructive sleep apnea but deferred an opinion regarding etiology to another clinician conducting a VA TBI examination. That clinician acknowledged the sleep apnea diagnosis, but did not provide an opinion as to whether it was related to the Veteran's TBI, merely noting that his sleep complaints were as likely due to TBI as due to sleep apnea. An addendum VA medical opinion was obtained in December 2014. The examiner found that the Veteran's sleep apnea was less likely than not due to TBI as mild TBI did not result in obstruction of the upper airways. The Veteran's body mass index (BMI) was 32, which was a likely explanation of his sleep apnea. A letter from the Veteran's private treating clinician in April 2019 stated that he had been his primary physician since he was 14 years old. The Veteran told him that he had developed sleep apnea only after his TBI. The clinician determined that this was more likely related to a central sleep apnea and not obstructive sleep apnea. He continued that this likely occurred when the brain was affected as a consequence to the extensive head injury sustained in 2011. When such injuries happen, the clinician continued, the brain does not send proper signals to the muscles that control breathing. This causation was more likely than not since the Veteran was not obese and did not have any tonsillopharyngeal disease which could obstruct his breathing. VA treatment records reflected varying weight and BMI throughout the appeal period, with BMI as low as 24 and as high as 32 at different periods. At the October 2021 hearing, the Veteran testified that he had not had a BMI of 32 (an approximate weight of 210 pounds at his height). He had been unaware of any relevant symptomology until a fellow soldier had told him that he was snoring and stopped breathing during sleep. Indeed, the undersigned observed that the Veteran did not appear to be anywhere near a BMI of 32 and, at that time, the Veteran denied ever being what a reasonable person would deem "obese." The Veteran did not, at the time of the hearing, disclose that his weight fluctuated throughout time. While he certainly was not likely at a 32 BMI at the time of the October 2021 hearing, his VA outpatient treatment records show he has been medically deemed obese during the relevant appellate time frame and lost weight thereafter with a BMI significantly lower. While the Veteran contended that the December 2014 VA examiner's opinion was flawed because the Veteran was never obese, the Board finds VA outpatient treatment records support the examiner's findings. Regardless, the evidence of record is in conflict as to etiology in light of the disparity with regard to the Veteran's weight and medical opinions attributing his sleep apnea to his TBI and/or PTSD versus his BMI. Based on the foregoing, the Board finds that a new VA examination and opinion are needed to reconcile the competing medical opinions of record. Neither opinion on its own is adequately supported to either grant or deny service connection. Another sleep study or other appropriate diagnostic testing should be conducted to determine whether the Veteran's sleep apnea is obstructive or central, and a new opinion should be provided which considers and evaluates the December 2014 and April 2019 opinions. 4. Entitlement to service connection for bilateral flatfoot is remanded. The Veteran has contended that his current flatfoot/pes planus is the result of his military service. The Veteran's February 1997 service entrance examination noted that an evaluation of his feet was abnormal; he had mild, asymptomatic pes planus. As the condition was noted at service entrance, it preexisted service. 38 U.S.C. § 1111. If a veteran is noted to have a preexisting condition upon entrance into service, he or she must show that the condition was aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Mild, asymptomatic pes planus was again noted in June 1997 and May 2003 STRs. At the October 2021 hearing, the Veteran testified that his feet hurt during basic training and that he was issued orthotics in approximately 2002. No STRs are currently in the claims file reflecting a prescription of orthotics or any foot treatment in 2002. After the development indicated above to obtain any outstanding STRs, a VA examination and opinion are needed to determine the etiology of the Veteran's claimed flatfoot. It is clear that pes planus preexisted his first period of active duty. An opinion is needed to determine whether the condition was aggravated by a period of active duty or ACDUTRA, or whether the evidence clearly and unmistakably demonstrates that either there was no increase in the disability in service or that any increase in disability was the result of the natural process of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). 5. Entitlement to service connection for bruxism, to include as secondary to service-connected TBI and/or PTSD, is remanded. The Veteran has contended that his currently-diagnosed bruxism is the result of his active service, due either to the March 2011 injury or his service-connected TBI/PTSD. As described above, the Veteran sustained a left orbital fracture from the March 2011 in-service injury. In June 2012, he told treating clinicians that he had been grinding his teeth. He had been using mouth guards but had chewed through them. He worried he was going to lose all of his teeth as a result of the March 2011 incident. Clinicians characterized the condition as severe teeth grinding and post-trauma temporomandibular joint (TMJ) dysfunction. Consulting a TMJ specialist was recommended. A VA examination was conducted in June 2012. The examiner stated that the Veteran had severe wear on several teeth of an erosive-type pattern with loss of interocclusal distance and near-pulp exposures on some of the teeth. The examiner concluded that the severe loss of enamel was mostly a preexisting condition, but numbness in his face could have been sustained from the March 2011 accident. "Bruxism/facial pain" was listed in the Veteran's VA medical problems list in February 2013. He told treating doctors in September 2013 that his teeth grinding began due to a sexual assault suffered in service which led to his currently-diagnosed PTSD. A VA clinician stated in November 2013 that the Veteran's severe bruxism was directly linked to his PTSD. No rationale for this opinion was provided. VA treatment records demonstrated that the Veteran underwent extensive dental treatment and had frequent complaints of pain. Based on the foregoing, the Board finds that further development is needed before a decision may be rendered on the claim. Under current VA regulations, compensation benefits are only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of the substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. The Veteran underwent a facial injury during service. There is no evidence in the current record of any dental injuries at the time of the March 2011 incident, but as there is some indication that there may be missing STRs, development of the record is needed before a decision may be produced. Further, he has not been afforded a VA examination to determine whether his diagnosed bruxism has resulted in any of the compensable dental conditions and whether such bruxism is due to service or a service-connected disability. Additionally, a TMJ dysfunction was previously diagnosed as potentially related to the in-service incident which has not been considered. As such, a VA examination and opinion are needed. The Board notes that the Veteran is already in receipt of VA outpatient dental services and treatment and as such, service connection for the sole purpose of dental treatment need not be considered upon remand. The matters are REMANDED for the following action: 1. Contact the necessary authorities to clarify the Veteran's periods of active duty, ACDUTRA, and INACDUTRA throughout his service. 2. Contact the necessary authorities to attempt to obtain any outstanding records of medical treatment during the Veteran's service, specifically to include records relevant to the prescription of orthotics in 2002. 3. Contact the Veteran and request he submit any necessary authorizations and releases for relevant and outstanding records of private medical treatment, specifically to include records from Dr. Florentino at Elgin SurgiCare who treated him since approximately 1993. Assist him in associating any identified records with the claims file and document all attempts to obtain such records. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his current chronic sinusitis. Following a review of the claims file and any clinical testing deemed necessary, the examiner is asked to address the following: (a.) Determine whether it is at least as likely as not that the claimed chronic sinusitis is etiologically related to the Veteran's military service, to include the April 1997 notation of sinus congestion, the August 2009 diagnosis of sinus infection, the March 2011 facial fracture, or any other relevant notations found to have occurred during a period of active duty or ACDUTRA. (b.) If the relevant notations in the active/inactive STRs prior to the March 2011 injury clearly and unmistakably indicate that chronic sinusitis preexisted the March 2011 period of ACDUTRA, or an entrance examination to that period reflects a history of chronic sinusitis, determine whether it is at least as likely as not that chronic sinusitis was permanently aggravated beyond the natural progress of the pathology from the March 2011 facial fracture. (c.) The examiner is specifically reminded that the Veteran has recurrent sinusitis listed as a medical problem in his VA treatment records and has documented episodes of sinusitis throughout the appeal period. Whether or not sinusitis is observed at the time of the examination, an opinion regarding the etiology of the documented recurrent sinusitis episodes is needed. (d.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (e.) If medical literature is relied upon, the examiner should identify and specifically cite each reference material used. (f.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. (g.) If the examiner determines that s/he cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his current sleep apnea. Following a review of the claims file and any clinical testing deemed necessary, to include a new sleep study, the examiner is asked to address the following: (a.) Characterize the nature of the Veteran's sleep apnea (i.e., obstructive versus central). (b.) Determine whether it is at least as likely as not that the claimed sleep apnea is etiologically related to the Veteran's military service, to include the March 2011 facial fracture. (c.) Determine whether it is at least as likely as not that the Veteran's sleep apnea was proximately caused or aggravated (i.e., worsened beyond natural progression) by his service-connected TBI residuals. (d.) The examiner should discuss the December 2014 VA opinion and the April 2019 private opinion and reconcile the differing conclusions and in particular the examiner is asked to address the Veteran's fluctuating weight throughout the appellate time frame and the relevance of his BMI throughout time on his sleep apnea claim and the opinions rendered. (e.) The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). (f.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (g.) If medical literature is relied upon, the examiner should identify and specifically cite each reference material used. (h.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. (i.) If the examiner determines that s/he cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his current flatfoot. Following a review of the claims file and any clinical testing deemed necessary, the examiner is asked to address the following: (a.) Determine whether the mild, asymptomatic pes planus noted at service entrance in February 1997 was aggravated by a period of active duty or ACDUTRA, or whether the evidence clearly and unmistakably demonstrates that either there was no increase in the disability in service or that any increase in disability was the result of the natural process of the condition. (b.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (c.) If medical literature is relied upon, the examiner should identify and specifically cite each reference material used. (d.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. (e.) If the examiner determines that s/he cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bruxism. Following a review of the claims file and any clinical testing deemed necessary, the examiner is asked to address the following: (a.) Determine whether the Veteran has impairment of the mandible, loss of a portion of the ramus, loss of a portion of the maxilla, or loss of teeth due to loss of the substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis (not periodontal disease). (b.) Determine whether the Veteran has a TMJ dysfunction. (c.) If the Veteran has any of the compensable dental conditions and/or a TMJ dysfunction, determine whether it is at least as likely as not that the condition is etiologically related to the Veteran's military service, to include the March 2011 facial fracture. (d.) If the Veteran has any of the compensable dental conditions and/or a TMJ dysfunction, determine whether it is at least as likely as not that the condition was proximately caused or aggravated (i.e., worsened beyond natural progression) by bruxism. If caused by bruxism, determine whether bruxism is at least as likely as not proximately caused or aggravated by his service-connected TBI/PTSD residuals. (e.) The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). (f.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (g.) If medical literature is relied upon, the examiner should identify and specifically cite each reference material used. (h.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. (i.) If the examiner determines that s/he cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 8. After completing the above, and any additionally indicated development, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.