Citation Nr: 22015771 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-27 389 DATE: March 18, 2022 ORDER Entitlement to service connection for rhinoplasty, to include as secondary to service connected Lyme disease, is denied. REMANDED Entitlement to service connection for an eye disorder, claimed as radial keratotomy, to include as secondary to service connected Lyme disease, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected Lyme disease, is remanded. Entitlement to service connection for Nissen fundoplication, to include as secondary to service connected Lyme disease, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a diagnosis related to rhinoplasty, and the record does not contain a recent diagnosis of such disability prior to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for service connection for rhinoplasty, to include as secondary to service connected Lyme disease, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1987 to July 1991. These matters return to come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 and January 2018 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a September 2021 decision, the Board remanded this matter to the RO for further development. More specifically, the Board directed the RO to schedule the Veteran for a new examination to determine the etiology of his disabilities and noted that the Veteran submitted private opinions that provide evidence of a relationship between the Veteran's Lyme disease diagnosis and other disabilities. In December 2021 the RO issued a Supplemental Statement of the Case again denying direct and secondary service connections for the Veteran's claimed disabilities. The Board finds that there has been substantial compliance with his previous remand with regards to the claim for service connection for rhinoplasty. However, the Board does not find that there has been substantial compliance with its previous remand with regards to the remaining issues on appeal, which will be discussed in the Remand section below. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A disability which is proximately due to, or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for rhinoplasty is denied. The Veteran generally contends that his rhinoplasty is secondary to his service-connected Lyme disease. See May 2020 Informal Hearing Presentation. In June 1987 and May 1989, it was noted in the Veteran's service treatment records that he was treated for coughing and congestion. In May 1989, the Veteran was treated for sinus tenderness. Post service treatment records show the Veteran was diagnosed with a deviated nasal septum in 2007. The Veteran was afforded a VA examination in November 2021 where the examiner opined that the Veteran had no current chronic diagnosis related to his rhinoplasty. The examiner stated that his examination was normal and that his symptoms appeared to be subjective only. The examiner concluded that there was no nexus established. The examiner further stated that the Veteran's rhinoplasty condition and his service-connected Lyme disease are not medically related. The examiner reasoned that the Veteran's rhinoplasty is a separate entity entirely from Lyme disease and unrelated to it. Inasmuch, a thorough review of medical literature failed to demonstrate a causal relationship between the two and a nexus cannot be established. The Board concludes that the Veteran does not have a current diagnosis of rhinoplasty and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the record does not reflect a current diagnosis related to rhinoplasty the cornerstone element of service connection has not been met, and service connection is not warranted. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). No further discussion of the remaining elements is necessary. The Board acknowledges the Court's holding in Saunders but does not find a basis for determining that there is functional impairment related to a diagnosis of rhinoplasty. See Saunders v. Wilkie, 886 F.3d. 1356 (2018). Moreover, the Veteran has not alleged manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. Although he believes that he has a diagnosis of rhinoplasty related to his service connected Lyme disease, neither the Veteran nor his representative in this case is competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, disease pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran or his representative in this case because the record does not show that they have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Although the Veteran contends that his rhinoplasty was a consequence of his service-connected Lyme disease, the VA examiner did not find any underlying disease or disability that relates to rhinoplasty, as the one claimed is a medical procedure and not a disability. Therefore, his contentions are without merit. Therefore, the Board concludes that the persuasive weight of the evidence is against finding that the Veteran meets the criteria for service connection for rhinoplasty. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the weight of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Entitlement to service connection for an eye disorder, claimed as radial keratotomy, to include as secondary to service connected Lyme disease, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected Lyme disease, is remanded. Entitlement to service connection for Nissen fundoplication, to include as secondary to service connected Lyme disease, is remanded. Entitlement to a TDIU is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran generally contends that his eye disability, obstructive sleep apnea, and Nissen fundoplication are secondary to his service-connected Lyme disease. See May 2020 Appellate' s Brief. The Veteran was afforded VA examinations in November and December 2021 for his disabilities. The examiner provided conclusory opinions and did not provide a rationale. An opinion is adequate where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (an adequate medical examination must provide a rationale and explanation for its conclusions). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. See NievesRodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"). Therefore, the November and December 2021 VA opinions for the Veteran's eye disability, obstructive sleep apnea, and Nissen fundoplication are deemed inadequate for adjudicative purposes. Accordingly, the Board concludes that the Veteran should be afforded new VA examinations to determine the nature and etiology of his claimed disabilities to include if they are secondary to his service-connected Lyme disease. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Stegall v. West, supra. Further, the Board finds the issue of entitlement to a TDIU is inextricably intertwined with the above service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As all of the above claims have been remanded as discussed in respective parts above, the Board concludes that adjudication of the TDIU claim must also be deferred. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination with an appropriate clinician for his eye disability, his obstructive sleep apnea and his post status Nissen fundoplication. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine separately as to the following: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's eye disability, obstructive sleep apnea and post status Nissen fundoplication began during active service or is related to an incident of service? (B) Is it at least as likely as not that the Veteran's eye disability, obstructive sleep apnea and post status Nissen fundoplication was proximately due to or the result of his service-connected Lyme disease? (C) Is it at least as likely as not that the Veteran's eye disability, obstructive sleep apnea and post status Nissen fundoplication was aggravated beyond its natural progression by his service-connected Lyme disease? The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claims. Including the inextricably intertwined TDIU claim. If any decisions are adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B Adeyemi, 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.