Citation Nr: A25035362 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240409-430160 DATE: April 16, 2025 ORDER A claim of entitlement to service connection for sleep apnea is dismissed. A claim of entitlement to an initial rating in excess of 10 percent disabling for insomnia disorder effective April 16, 2023 and continuing prior to May 9, 2024 is dismissed. Entitlement to service connection for sinusitis is denied. Entitlement to a compensable rating for allergic rhinitis is denied. REMANDED Entitlement to an initial rating in excess of 30 percent disabling for asthma is remanded. FINDINGS OF FACT 1. On November 8, 2023, prior to submitting the April 9, 2024, NOD from which the instant appeal stream is docketed, the Veteran submitted a VA Form 20-0996, Higher-Level Review (HLR) requesting review of the November 2, 2023 notification of an October 25, 2023 rating decision that denied service connection for sleep apnea and granted service connection for an insomnia disorder with an initial 10 percent rating assigned effective April 16, 2023. 2. The Veteran did not withdraw the November 8, 2023 HLR request prior to filing the April 9, 2024 NOD. 3. The April 1, 2024, HLR return decision (with notice dated April 3, 2024) that found additional development was necessary to adjudicate the claims for entitlement to service connection for sleep apnea and entitlement to initial rating in excess of 10 percent rating for an insomnia disorder is not an adjudicative determination that can be appealed. 4. The evidence of record persuasively weighs against finding that the Veteran has had sinusitis at any time during or approximate to the pendency of the claim. 5. The probative medical evidence does not show that the Veteran has nasal polyps, or greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for dismissal of an appeal for entitlement to service connection for sleep apnea is denied. have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for dismissal of an appeal for entitlement to an initial rating in excess of 10 percent for insomnia disorder effective April 16, 2023 and continuing prior to May 9, 2024 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97; Diagnostic Code (DC) 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1999 to March 2005. In November 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a November 2023 notification of an October 2023 decision which granted service connection for asthma (also claimed as emphysematous bronchitis, asthmatic bronchitis and reactive airway disease) with an initial evaluation of 30 percent assigned effective August 10, 2022; granted service connection for insomnia disorder with an initial evaluation of 10 percent effective April 16, 2023; granted service connection for allergic rhinitis with an initial evaluation of 0 percent effective August 10, 2022; denied service connection for sinusitis, and denied service connection for sleep apnea. In April 2024 the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which confirmed and continued the denial of an initial rating in excess of 30 percent disabling for asthma; confirmed and continued the denial of an initial compensable (in excess of 0 percent) rating for allergic rhinitis and confirmed and continued the denial of service connection for sinusitis. Regarding the issues of service connection for sleep apnea and entitlement to an initial rating in excess of 10 percent disabling for an insomnia disorder, these issues were subject to a higher level review (HLR) return in April 2024 based on the need for additional evidentiary development. Thus, a decision on the sleep apnea and insomnia disorder issues was not rendered in the April 2024 HLR decision. In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2003 agency of original jurisdiction (AOJ) decision, which was subsequently subject to the higher-level review decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of entitlement to a compensable initial rating for asthma, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103 (c)(2)(ii). As will be addressed further in the decision, the Board is dismissing the issues pertaining to service connection for sinusitis and the initial rating assigned for an insomnia disorder that were subject to HLR return based on the lack of an appealable determination in these matters. 1. Dismissal of the claim for service connection for sleep apnea. 2. Dismissal of the claim for entitlement to an initial rating in excess of 10 percent disabling for an insomnia disorder prior to May 9, 2024. As discussed in the introduction, in an October 2023 decision the AOJ granted service connection for an insomnia disorder with an initial 10 percent rating assigned effective April 16, 2023 and denied service connection for sleep apnea. Notice of this denial was sent to the Veteran in November 2023. In November 2023, the Veteran submitted a VA Form 20-0996, Request for Higher-Level Review, in response to the November 2023 notice of the rating decision's adjudication of these issues. In the April 2024 HLR decision, the AOJ identified a duty to assist error in the development of the claims for an increased rating for the insomnia disorder and service connection for sleep apnea pursuant to 38 C.F.R. § 3.2601 (g). The accompanying notification letter issued in April 2024 advised the Veteran that additional development would be undertaken to support his claims and that notice of the additional development would be provided in the future after readjudication. Subsequently, the Veteran submitted a VA Form 10182 notice of disagreement (NOD) which was received in April 2024, and selected the Direct Review docket. Despite the pending Higher-Level Review request, the VA Form 10182 was processed, and the appeal was docketed to the Board later in April 2024. Just as a deferred rating is not an adjudicative determination that can be appealed, an HLR return decision is not an adjudicative determination that can be appealed, because the factual and legal questions relevant to the claim have been reserved for adjudication at a later date. Cf. Shipley v. Shinseki, 24 Vet. App. 458, 462 (2011). In other words, a decision that merely identifies an error and refers to future action is not a determination by the RO, and therefore the filing of an NOD on such a decision does not place the issue in appellate status. Moreover, although the April 2024 NOD referenced the November 2023 notice of the original October 2023 rating addressing these issues rather than the April 2024 HLR rating, the Veteran did not explicitly withdraw his HLR request. Under 38 C.F.R. § 3.2500, a claimant who has filed for review under one of the options available under 38 C.F.R. § 3.2500 (a) (which includes a request for Higher-Level Review) may not, while that review is pending final adjudication, file for review under a different available option, such as an appeal to the Board. Such is the case here. Therefore, because the Higher-Level Review request was received prior to the VA Form 10182, and the Veteran has not withdrawn the Higher-Level Review request, the Board must dismiss the instant appeal stream for these issues of increased initial rating for an insomnia disorder and service connection for sleep apnea as an improper concurrent election. The Board further notes that per the HLR return, additional development was carried out and subsequent adjudications were rendered by the AOJ pertaining to these issues. These include an August 2024 rating that granted a staged 70 percent rating for the insomnia disorder effective May 9, 2024. Later, an April 2025 rating reduced the rating for the insomnia disorder from 70 percent to 30 percent effective February 14, 2025. In regard to the sleep apnea claim, following additional development, service connection was granted for this disorder in a September 2024 with an initial 50 percent rating assigned effective April 16, 2023. Given the above, these issues are not currently before the Board. If the Veteran wishes to appeal any of these matters to the Board, he will need to file VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), within the deadlines established by the VA for filing such appeal. 3. Service connection for sinusitis is denied. The Veteran contends that service connection for sinusitis is warranted. In his April 2023 VA 21-526 EZ claim, he described issues with sinuses and nose bleeds while stationed at Fairchild Air Force Base in July 2000. He also indicated having minor sinus problems while in Saudi Arabia, which continued at Lackland AFB. He indicated these problems were from December 2001 to April 2002. He also described several episodes of sinus problems while stationed at Nellis AFB from July 2003 until March 2005, with an instance of nosebleeds in September 2003. He indicated that a hospital diagnosed him with chronic sinusitis during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). On August 10, 2022, the Sergeant First Class (SFC) Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) was enacted. Pursuant to the PACT Act, VA is required to schedule an examination and request a medical opinion for certain non-presumptive diseases involving toxic exposure risk activity (TERA). The PACT Act provides that a TERA medical examination/opinion is required in cases of toxic-exposed Veterans where there is a claim for a disability that is not clearly due to an etiology not associated with toxic exposure, and the claim cannot otherwise be granted based on the current evidence of record. See 38 U.S.C. §§ 101 (38); 1168, 1710(e)(1). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Favorable findings identified in the October 2023 rating and April 2024 HLR decisions included conceded participation in a toxic exposure risk activity for purposes of determining with the claimed sinusitis resulted from a toxic exposure risk activity (TERA) inservice. 38 U.S.C. 1168, 38 U.S.C. 1710(e)(4). It was conceded that the Veteran participated in a toxic exposure risk activity during service. It was conceded that he was exposed to fine particulate matter and other environmental hazards based on service in Saudi Arabia during the Persian Gulf War Era. Sinusitis is considered a presumptive disability associated with service in Southwest Asia during the Persian Gulf War Era. The Board is bound by these favorable findings. Additionally, the Board notes that there are instances of in-service treatment for nasal and sinus problems. A July 2000 record noted chronic sinusitis. Additionally, sinus congestion symptoms were treated in April 2003, URI symptoms and sinus pain treated in July 2003, and sinus infection treated in September 2003 and October 2003. See 75 pg. STRs received 2/5/15 at pg. 18, 20, 21, see also 75 pg. STRs received 2/5/15 at pg. 14, 62, 75, see also 95 pg. STRs received 4/4/15 at 28, 29, 33, 41, 62, see also 89 pg. STRs received 4/4/15 at 7, 9, 45, 73,74. VA treatment records show that in November 2022, the Veteran was seen for multiple medical conditions including being told he has persistent nasal blockade and drainage. Examination revealed bilateral nasal synechiae. The assessment included persistent nasal sinusitis/nasal blockade, sleep apnea: CT sinus ordered to rule out polyps. Other records from November 2022 revealed complaints of nasal congestion for a device used to treat sleep apnea. In December 2022 he underwent a CAT scan of sinuses with the report yielding no significant abnormal findings that require any intervention at the time. Records from April 2023 noted issues with him again being told he has persistent nasal blockade and drainage. Examination again revealed bilateral nasal synechiae. The assessment again included persistent nasal sinusitis/nasal blockade, sleep apnea. Also, in April 2023 he underwent a Gulf War exposures examination where among his symptoms were hay fever or other respiratory allergy. The same assessment of persistent nasal sinusitis/nasal blockade was noted in June 2023. In August 2023 the sleep clinic record noted diagnoses that included allergic rhinitis and a review of systems was negative for sinus trouble. In September 2023 the Veteran underwent a VA examination of his nose and sinuses. Following review of the records and examination of the Veteran, the diagnosis was limited to allergic rhinitis. Historically, for the claimed conditions of allergic rhinitis and sinusitis, the symptoms started around 2001. Details of onset included the gradual onset of nasal congestion, cough, and sneezing. The Veteran was deployed to Saudi Arabia and started noticing increased sinus and allergy issues after being exposure to burn pits and dust storms. The course of the condition since onset had progressed/worsened. Current symptoms included his reports of having nose bleeds once per month, nasal congestion on a daily basis, dry cough, sneezing, and occasional itchy/watery eyes. Treatment consisted of Zyrtec OTC. He was confirmed only to have rhinitis, with no findings of sinusitis noted. A review of imaging studies of the sinuses done in December 2022 was noted to yield findings of no significant mucosal sinus disease demonstrated. No air fluid levels to indicate acute sinusitis. No other testing was done (such as X-rays, biopsy of larynx/pharynx, endoscopy or PFT of upper airways.) No other significant diagnostic test findings and/or results were shown. The examiner concluded that there was no objective evidence to support a diagnosis of chronic sinusitis. As there was no diagnosis of chronic sinusitis, the examiner's opinion regarding TERA is noted to have not included an opinion as to whether sinusitis was linked to TERA, but instead linked allergic rhinitis to TERA. Service connection is noted to be in effect for rhinitis and thus the Veteran is being compensated for symptoms that have been attributed for rhinitis. Given the above, the Board concludes that the Veteran does not have a current diagnosis of sinusitis 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). In concluding that there is no current diagnosis of sinusitis, the Board lends the greatest probative weight to the September 2023 VA examination, which determined that no actual diagnosis of sinusitis exists based on examination of the Veteran and review of the record, including the negative findings on CT scan for sinusitis. The examiner provided adequate rationale for the lack of a diagnosis for sinusitis, and is noted to have diagnosed allergic rhinitis, with his symptoms attributable to this disorder. In making this determination, the Board notes that there are records discussed above that included a diagnosis of sinusitis grouped among other diagnoses of the upper respiratory system including "nasal blockade" throughout the pendency of this appeal. However, none of these records showing this diagnosis include any objective evidence of sinusitis to support such a diagnosis. His nasal symptoms have been attributed to allergic rhinitis per the more probative findings and opinion of the September 2023 VA examiner. While the Veteran believes there is a current diagnosis of sinusitis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 4. An initial compensable rating for allergic rhinitis is denied. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is currently in receipt of a noncompensable rating under DC 6522 for allergic rhinitis and contends that a compensable rating is warranted due to worsened symptoms. Under DC 6522, which pertains specifically to allergic or vasomotor rhinitis, a 10 percent rating is assigned when there are no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is assigned for rhinitis with polyps. 38 C.F.R. § 4.97. VA treatment records show that in November 2022, the Veteran was seen for multiple medical conditions including being told he has persistent nasal blockade and drainage. Examination revealed bilateral nasal synechiae. The assessment included persistent nasal sinusitis/nasal blockade, sleep apnea: CT sinus ordered to rule out polyps. Other records from November 2022 revealed complaints of nasal congestion for a device used to treat sleep apnea. In December 2022 he underwent a CAT scan of sinuses with the report yielding no significant abnormal findings that require any intervention at the time. Records from April 2023 noted issues with him again being told he has persistent nasal blockade and drainage. Examination again revealed bilateral nasal synechiae. The assessment again included persistent nasal sinusitis/nasal blockade, sleep apnea. Also, in April 2023 he underwent a Gulf War exposures examination where among his symptoms were hay fever or other respiratory allergy. The same assessment of persistent nasal sinusitis/nasal blockade was noted in June 2023. In August 2023 the sleep clinic record noted diagnoses that included allergic rhinitis. In September 2023 the Veteran underwent a VA examination of his nose and sinuses. Following review of the records and examination of the Veteran, the diagnosis was limited to allergic rhinitis. Historically, for the claimed conditions of allergic rhinitis and sinusitis, the symptoms started around 2001. Details of onset included the gradual onset of nasal congestion, cough, and sneezing. The Veteran was deployed to Saudi Arabia and started noticing increased sinus and allergy issues after being exposure to burn pits and dust storms. The course of the condition since onset had progressed/worsened. Current symptoms included his reports of having nose bleeds once per month, nasal congestion on a daily basis, dry cough, sneezing, and occasional itchy/watery eyes. Treatment consisted of Zyrtec OTC. He was confirmed only to have rhinitis with findings of rhinitis as follows. Objectively, the Veteran did not have 50% obstruction of the nasal passage on both sides due to rhinitis. Nor was there shown to be a complete obstruction on the left side or right side due to rhinitis. There was permanent hypertrophy of the nasal turbinates. There were no nasal polyps and no granulomatous conditions. No other nasal findings were noted, including the negative findings on sinus CT in December 2022. No other testing was done, such as X-rays biopsy of larynx/pharynx, endoscopy or PFT of upper airways. There were no other significant diagnostic test findings and/or results. Based on review of the foregoing the Board finds that the evidence does not support an initial compensable rating for allergic rhinitis. As set forth in the September 2023 VA examination, his rhinitis is not shown to result in greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. Nor are nasal polyps shown. Although the Veteran is noted to have "persistent nasal blockade" and drainage in treatment records throughout the pendency of this appeal, these records do not provide any insight as to the extent of the nasal blockage (or blockade) reported in these records. Thus, they provide no probative evidence of a blockage that results in greater than 50 percent obstruction bilaterally or complete obstruction on one side. The Board acknowledges the Veteran's contentions that his symptoms warrant a compensable rating. However, although the Veteran is competent to report his symptoms as a lay person, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, requires knowledges of interpreting results of diagnostic testing and falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Accordingly, as the evidence is not in approximate balance but is persuasively against the claim, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to an initial rating in excess of 30 percent disabling for asthma is remanded. The Board notes that AMA provides that remands are warranted based on VA's duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). The AMA structure allows remand where VA has committed error in the duty-to-assist (DTA) prior to the decision on appeal. After a thorough review of the record, the Board finds the arguments of the Veteran's representative to be compelling. In requesting additional development on remand in this case, the Board notes that the basis for this remand arises from deficiencies in the record existing prior to the appealed AMA decision. Notably, prior to the October 2023 rating decision, the Veteran was not provided an adequate VA examination to address the severity of his service-connected asthma disability. For context, the Veteran's asthma is rated 30 percent under 38 C.F.R. § 4.96, DC 6602, bronchial asthma. Under this criteria, a 10 percent rating is warranted where there is a FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted where there is a FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted where there is a FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted where there is a FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Post-bronchodilator studies are required when pulmonary function testing (PFT) is conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. When there is a disparity between the results of different PFT's, FEV-1, FVC, etc., so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96 (d) (5), (6). In September 2023, the Veteran underwent a VA examination for respiratory disorders. Rather than conducting pulmonary function testing (PFT), the examiner relied on results from a March 2022 VA record where PFT was conducted, with the results as follows. Pre bronchodilator testing yielded FVC of 74% predicted, FEV-1 of 47% predicted and FEV-1/FVC of 51% predicted. Post bronchodilator testing yielded FVC of 91% pred, FEV-1 of 61% predicted. There were no post bronchodilator test results for FEV-1/FVC. Additionally, DLCO testing was not conducted. This is not contemplated in the criteria for DC 6602, but it is in rating criteria for other pulmonary disorders besides asthma. In this instance the September 2023 VA examination's reliance on the March 2022 PFT that excluded crucial post bronchodilator test results of FEV-1/FVC rather than conducting the testing necessary to evaluate the severity of the asthma constitutes a pre-decisional duty to assist errors. Thus, the claim must be remanded for a VA examination that includes the complete testing necessary for rating purposes. The matter is REMANDED for the following action: (Continued on the next page) ? The Veteran should be afforded a VA examination to determine the severity of his service-connected asthma disability. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report should reflect review of the record. All necessary tests and studies should be performed to specially include the results of all three required pulmonary function tests, namely FEV-1, FEV-1/FVC, and DLCO (SB) with all pre-and post-bronchodilator findings recorded. The examiner should describe in detail all symptomatology and treatment modalities associated with the Veteran's asthma disability to include a discussion of the functional impact of the Veteran's service-connected asthma disability. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eckart, C. 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.