MEDIAN NERVE PARALYSIS

KEITH W. ALLEN · 2022 · Case ID: 22031615

MIXED

Summary

The veteran, who served from June 1988 to June 2014, appeals rating decisions from July, September 2014, and July 2017. The Board granted service connection for several conditions claimed as secondary to already established service-connected disabilities. Specifically, service connection was granted for a thoracic and lumbar spine disorder secondary to right knee strain, cervical spine DJD with IVDS, and right upper extremity radiculopathy with CTS. Headaches, including migraines with aura, were granted secondary to cervical spine DJD with IVDS, hypertension, and tinnitus. A neurological disorder of the left arm, including neuropathy and CTS, was granted secondary to cervical spine DJD with IVDS, right upper extremity radiculopathy with CTS, and thoracic/lumbar spine disorder. Obstructive sleep apnea (OSA) was granted secondary to cervical spine DJD with IVDS, right upper extremity radiculopathy with CTS, hypertension, and tinnitus. A heart disorder was granted secondary to hypertension. GERD conditions, including gastritis and heartburn, were granted secondary to right shoulder strain, cervical spine DJD with IVDS, and right knee strain. The Board relied heavily on a private medical opinion from Dr. Kyle D. Mitchell, which provided detailed nexus opinions for these secondary conditions, finding them more likely than not related to the veteran's service-connected disabilities or incurred during service. The Board found the private opinion persuasive and uncontroverted, resolving any doubt in the veteran's favor. Several other claims, including sinusitis, hypertension rating, other sleep disorders, right shoulder strain rating, right knee strain rating, allergic rhinitis, erectile dysfunction, dry eye syndrome, hearing loss, and a neck/shoulder keloid scar, were remanded for further development, including additional medical examinations and record retrieval.

Rationale

Dr. Mitchell opined cervical radiculopathy is more likely than not a direct result of service-connected cervical spine and upper extremity disabilities.; STRs note onset of neck pain and injuries during service.; Nerve damage to upper extremities caused by combat missions, blast explosions, and head concussions.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-23 995

Full Decision Text

Citation Nr: 22031615
Decision Date: 05/31/22 Archive Date: 05/31/22

DOCKET NO. 18-23 995
DATE: May 31, 2022

ORDER

Entitlement to service connection for a thoracic and lumbar spine disorder as secondary to service-connected right knee strain, degenerative joint disease (DJD), i.e., arthritis of the cervical spine with intervertebral disc syndrome (IVDS), and radiculopathy with carpal tunnel syndrome (CTS) of the right upper extremity is granted.

Entitlement to service connection for headaches including migraines with aura (previously claimed as sinusitis with upper respiratory infections and headaches), as secondary to the service-connected DJD (arthritis) of the cervical spine with IVDS is granted.

Entitlement to service connection for a neurological disorder of the left arm including neuropathy, sciatica, neuritis, radiculopathy, ulnar nerve pain, and CTS as secondary to the service-connected DJD of the cervical spine with IVDS, radiculopathy with CTS of the right upper extremity, and thoracic and lumbar spine disorder is granted.

Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to the service connected DJD of the cervical spine with IVDS, radiculopathy with CTS of the right upper extremity, hypertension, and tinnitus is granted.

Entitlement to service connection for a heart disorder (claimed as shortness of breath, palpitations, and other cardiac conditions) as secondary to the service-connected hypertension is granted.

Entitlement to service connection for gastroesophageal reflux disease (GERD) and other conditions including gastritis, dysphagia, and heartburn as secondary to the service-connected right shoulder strain, DJD of the cervical spine with IVDS, and right knee strain is granted.

REMANDED

Entitlement to service connection for sinusitis with upper respiratory infections (URIs) is remanded.

Entitlement to an initial compensable rating for the hypertension is remanded.

Entitlement to service connection for a sleep disorder other than OSA, including insomnia and as secondary to the now service connected OSA, thoracic and lumbar spine disorder, right shoulder strain, and GERD conditions, is remanded.

Entitlement to an initial rating in excess of 20 percent for the right shoulder strain is remanded.

Entitlement to an initial compensable rating for the right knee strain is remanded.

Entitlement to an initial compensable rating for allergic rhinitis is remanded.

Entitlement to an initial compensable rating for erectile dysfunction is remanded.

Entitlement to an initial compensable rating for bilateral dry eye syndrome with left eye chalazion is remanded.

Entitlement to an initial compensable rating for bilateral hearing loss is remanded.

Entitlement to an initial compensable rating for a left neck and shoulder keloid scar, status post sebaceous cyst, is remanded.

FINDINGS OF FACT

1. The Veteran's thoracic and lumbar spine disorder is proximately due to (meaning either caused or aggravated by) his service-connected right knee strain, DJD of his cervical spine with IVDS, and radiculopathy with CTS of his right upper extremity.

2. His headaches including migraines with aura (previously claimed as sinusitis with URIs and headaches) are proximately due to the service-connected DJD of his cervical spine with IVDS, hypertension, and tinnitus.

3. The neurological disorder of his left arm including neuropathy, sciatica, neuritis, radiculopathy, ulnar nerve pain, and CTS, is proximately due to the service-connected DJD of his cervical spine with IVDS, radiculopathy with CTS of his right upper extremity, and thoracic and lumbar spine disorder.

4. His OSA is proximately due to the service connected DJD of his cervical spine with IVDS, radiculopathy with CTS of his right upper extremity, hypertension, and tinnitus.

5. His heart disorder is proximately due to his service-connected hypertension.

6. His GERD conditions are proximately due to his service-connected right shoulder strain, DJD of his cervical spine with IVDS, and right knee strain.

CONCLUSIONS OF LAW

1. The criteria are met for entitlement to service connection for a thoracic and lumbar spine disorder as secondary to the service-connected right knee strain, DJD of the cervical spine with IVDS, and radiculopathy with CTS of the right upper extremity. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3
.

5. His heart disorder is proximately due to his service-connected hypertension.

6. His GERD conditions are proximately due to his service-connected right shoulder strain, DJD of his cervical spine with IVDS, and right knee strain.

CONCLUSIONS OF LAW

2. The criteria are met for entitlement to service connection for headaches including migraines with aura (previously claimed as sinusitis with upper respiratory infections and headaches) as secondary to the service-connected DJD of the cervical spine with IVDS, hypertension, and tinnitus. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria are met for entitlement to service connection for a neurological disorder of the left arm including neuropathy, sciatica, neuritis, radiculopathy, ulnar nerve pain, and CTS as secondary to the service-connected DJD of the cervical spine with IVDS, radiculopathy with CTS of the right upper extremity, and thoracic and lumbar spine disorder. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria are met for entitlement to service connection for OSA as secondary to the service connected DJD of the cervical spine with IVDS, radiculopathy with CTS of the right upper extremity, hypertension, and tinnitus. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria are met for entitlement to service connection for a heart disorder (claimed as shortness of breath, palpitations, and other cardiac conditions) as secondary to the service-connected hypertension. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

6. The criteria are met for entitlement to service connection for GERD conditions, including GERD specifically, gastritis, dysphagia, and heartburn as secondary to the service-connected right shoulder strain, DJD of the cervical spine with IVDS, and right knee strain. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from June 1988 to June 2014.

This appeal is from July 2014, September 2014, and July 2017 rating decisions of a Department of Veterans Affairs Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ).

In November 2021, the Veteran and his wife testified in support of these claims during a "virtual" teleconference hearing before the undersigned Veterans Law Judge of this Board. In further support of these claims, the Veteran's representative submitted a 22-page report dated August 17, 2020, from Dr. Kyle D. Mitchell discussing at length the diagnoses, origins, and severity of these disabilities at issue, and it is primarily based on this doctor's opinions that several of the claims are being granted. The remaining other claims, however, require further development before being decided on appeal, so the Board instead is remanding them back to the RO (AOJ).

SERVICE CONNECTION

1. Entitlement to service connection for a thoracic and lumbar spine disorder as secondary to the service-connected right knee strain, DJD (arthritis) of the cervical spine with IVDS, and radiculopathy with CTS of the right upper extremity.

SERVICE CONNECTION

During his November 2021 hearing before this Board, the Veteran testified that he began having back pain and spasms during his military service after performing his duties and responsibilities in his military occupational specialty (MOS) that included loading heavy munitions. See hearing transcript, page 6. He added that he had pain and other symptoms for about 15 of the 26 total years he served, that there were flare ups, so times when his symptoms were worse than others, and that his symptoms have continued since his service including when coaching a youth basketball team. Regarding this functional loss, the Veteran explained that it happened about a couple of times a month, that he treated it with Motrin and Tylenol (i.e., over-the-counter medication), that there was no physical therapy, but that he has a back brace. These modalities, he said, help manage his pain but do not eliminate it.

The August 2020 private opinion from Dr. Mitchell, already mentioned, confirms the Veteran has current disabilities of mechanical low back pain, thoracic pain, lumbosacral strain, thoracic spine degenerative disc disease (DDD), advanced facet arthropathy, myofascial pain syndrome, thoracic outlet syndrome, and IVDS.

Service connection already has been established for right knee strain, DJD of the cervical spine with IVDS, and radiculopathy with CTS of the right upper extremity.

Following review of the Veteran's electronic claims file and a telephone interview of him, Dr. Mitchell concluded the Veteran's thoracic and lumbar spine pain, DDD, IVDS, and other lumbar and thoracic spine conditions are "more likely than not (>%50) secondary to his service-connected knee and lower extremity disabilities and chronically gait." Dr. Mitchell also concluded the Veteran's thoracic DDD and IVDS are "more likely than not (>%50) a direct result of his service-connected cervical spine and upper extremity disabilities and chronically gait." This commenting doctor reasoned that the onset of the Veteran's low back pain occurred during his active-duty service in September 1995. He has lumbar and thoracic spin pain that was diagnosed during his active-duty service in September 1995 due a motor vehicle accident (MVA). His lumbar pain progressed over the years with lower extremity weakness due to his service-connected knee disabilities. He has developed thoracic DDD and lumbar strain. His service treatment records (STRs) document recurrent low back pain, muscle spasms, and lower extremity injuries with physical training (PT) waivers in September 1995, February 1997, and July 2001. He also had a PT waiver in November 2006 for back and knee pain. He experienced having a lumbar strain with hip pain after his deployment to Korea. He had initial injuries that resulted in upper and lower extremity nerve pain, joint strain, and muscle weakness. The traumatic injuries resulted in him developing thoracic spine outlet syndrome in May 2013 (which also was during his time in service). He had complaints of neck pain with shoulder injuries that have been attributed by the explosion and lumbar strain. He was exposed to combat environments while deployed to Kuwait with Operation Iraqi Freedom. He was required to climb and crawl in and out of small tight spaces, carry heavy firearms, prolonged sitting, and standing as he performed combat drills. He admits to experiencing ongoing backache and stiffness after extended exertion and difficulty getting out of bed in the mornings. The underlying causes of his thoracic and lumbar spine pain can be complicated and are not always readily apparent. Medical research has shown a link between how the lower extremities of the body, which are the largest joints in your body, mechanically alter the proper alignment of the back, which results in back, neck, and shoulder problems. The feet, ankle, knees, and hip joints are responsible for supporting your weight as you stand and walk. His back conditions include IVDS, disc bulges, bilateral facet arthropathy, and DDD of the spinal vertebrae.

This private doctor further reasoned that, when the altered gait is repeated day after day, week after week, and year after year, it ultimately weakens muscles and joints, causing pain, arthritis, and increased susceptibility to injury. An irritation or problem with any of these structures can cause back pain. Many lower back problems also cause back muscle spasms,
joints in your body, mechanically alter the proper alignment of the back, which results in back, neck, and shoulder problems. The feet, ankle, knees, and hip joints are responsible for supporting your weight as you stand and walk. His back conditions include IVDS, disc bulges, bilateral facet arthropathy, and DDD of the spinal vertebrae.

This private doctor further reasoned that, when the altered gait is repeated day after day, week after week, and year after year, it ultimately weakens muscles and joints, causing pain, arthritis, and increased susceptibility to injury. An irritation or problem with any of these structures can cause back pain. Many lower back problems also cause back muscle spasms, which can cause severe pain and disability. This Veteran's somatic dysfunction plays a role in his pain because of the impaired or altered function of related components of the somatic system, including the skeletal, arthrodial, and myofascial structures and their related vascular, lymphatic, and neural elements.

This medical opinion supports finding the Veteran's thoracic and lumbar spine disorder is proximately due to (meaning caused or aggravated by) his service-connected disabilities including especially his right knee strain, the DJD of his cervical spine with IVDS, and the radiculopathy with CTS of his right upper extremity. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). There are no other medical opinions of record, so none tending to refute Dr. Mitchell's opinions and conclusions including regarding this posited correlation concerning the origins of this claimed disability in relation to the Veteran's many years of military service and consequent service-connected disabilities. Certainly, at the very least, there is an "approximate" (nearly equal) balance of evidence for versus against this claim indeed, if not evidence more favorable to this claim than against it. And, in this circumstance, the claim is granted rather than denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

2. Entitlement to service connection for headaches including migraines with aura (previously claimed as sinusitis with URIs and headaches) as secondary to the service-connected DJD of the cervical spine with IVDS, hypertension, and tinnitus.

Initially, the Board sees that, on his January 2014 VA Form 21-526 EZ (claim application), the Veteran requested service connection for "Sinusitis/Allergic Rhinitis/Upper Respiratory Infections with Headaches." The RO (AOJ), however, since has granted service connection for allergic rhinitis.

That notwithstanding, all remaining conditions also still must be considered since within the scope of the Veteran's claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). However, the Board is separating the sinusitis and headaches into distinct issues since the headaches also are being determined service connected in this decision, whereas the sinusitis requires further development on remand before determining whether it, too, is related or attributable to the Veteran's service or service-connected disabilities.

During his November 2021 hearing before this Board, the Veteran testified that he had morning headaches about two to three times a week during his time in service. See hearing transcript, page 16.

The report of the January 2014 VA examination lists a diagnosis of sinus headaches.

The August 2020 private opinion documents diagnoses of tension headaches and migraines with aura. Service connection already has been established for hypertension, tinnitus, and DJD of the cervical spine with IVDS.

Following review of the Veteran's electronic claims file and a telephone interview of him, the private examiner (Dr. Mitchell) opined that the Veteran's tension headaches and migraines with aura are "more likely than not (>50%) due to his service-connected hypertension, tinnitus, and cervical spine disabilities with severe residuals." Dr. Mitchell pointed out that the Veteran's STRs document onset of his headaches and a neck strain owing to combat injuries. His headaches have been ongoing since development of anxiety disorder and were noted in June 1997. His headaches have continued post-miliary service with head throbbing and pressure, and they worsen with pain intensity, elevated blood pressure, and tinnitus. His original treatment dates back to his active duty military service. He has ongoing joint pain, stress, and lack of sleep that often aggravates his tension-type headaches and cause migraine onset. He received a diagnosis of headaches with a new injury and cracked vertebrae. He also was exposed to elevated levels of hazardous chemicals, air
severe residuals." Dr. Mitchell pointed out that the Veteran's STRs document onset of his headaches and a neck strain owing to combat injuries. His headaches have been ongoing since development of anxiety disorder and were noted in June 1997. His headaches have continued post-miliary service with head throbbing and pressure, and they worsen with pain intensity, elevated blood pressure, and tinnitus. His original treatment dates back to his active duty military service. He has ongoing joint pain, stress, and lack of sleep that often aggravates his tension-type headaches and cause migraine onset. He received a diagnosis of headaches with a new injury and cracked vertebrae. He also was exposed to elevated levels of hazardous chemicals, air pollutants, and blast explosions, which additionally contributed to his headaches. There was noted inflammation of the nasal cavities within his maxillary sinus and para-nasal sinus showing mild/moderate mucosa thickening. He had narrowing of drainage passageways and marked turbinate hypertrophy with mild/moderate mucosal thickening showing chronic sinusitis. His STRs also document his cervical spine injuries with DDD and head injury. This, too, causes compression of the nerves that contribute to headache pain and pressure. Medical research has proved that migraine headaches can continue with the onset of chronic sinus pain, mental disorders, and altered mental awareness. He suffers from severe economic inadaptability because of the headache and migraine conditions that are also debilitating and have a negative impact on his social life. His migraine attacks worsen with physical activities, fatigue, increased ear ringing (i.e., tinnitus), and chronic pain. His tension headaches typically occur when he has increased stress, increased pain, and worries associated with his anxiety. When the pain is severe, they trigger his migraine episodes. He now suffers from migraines with aura, tension headaches, and sinus headaches.

There again are no other medical opinions of record regarding the origins of the headaches, so none tending to refute Dr. Mitchell's opinions and conclusions. Thus, this claim also must be granted since, at the very least, it is as likely as not, if not more likely than not, the Veteran's headaches including his migraines with aura, are proximately due to (caused or aggravated by) the service-connected DJD of his cervical spine with IVDS. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection on this posited secondary basis has been established. 38 C.F.R. § 3.310.

3. Entitlement to service connection for a neurological disorder of the left arm, to include neuropathy, sciatica, neuritis, radiculopathy, ulnar nerve pain, and CTS as secondary to the service connected DJD of the cervical spine with IVDS, radiculopathy with CTS of the right upper extremity, and thoracic and lumbar spine disorder.

At his Board hearing, the Veteran testified that he had injured his left arm while performing his duties and responsibilities in service intrinsic to his MOS, including repetitive typing as a weapons armament systems specialist. See hearing transcript, page 9. He described his hand consequently locking up and losing function. Id. He reported receiving a diagnosis of CTS while in service and resultantly being given a brace during his service. Id.

The August 2020 private medical opinion from Dr. Mitchell shows the Veteran has a current disability of cervical radiculopathy. This private examiner also diagnosed neuropathy, sciatica, neuritis, radiculopathy, and ulnar nerve pain with CTS.

The Veteran already has established service connection for DJD of his cervical spine with IVDS and radiculopathy with CTS of his right upper extremity. Moreover, because of this decision, his thoracic and lumbar spine disorder also has been determined service connected.

Following review of the Veteran's electronic claims file and a telephone interview of him, Dr. Mitchell determined the Veteran's cervical radiculopathy is "more likely than not (>%50) a direct result of his service-connected cervical spine and upper extremity disabilities and chronically gait." Dr. Mitchell also concluded the Veteran's neuropathy, sciatica, neuritis, radiculopathy, and ulnar nerve pain with CTS are "more likely than not (>50%) due to his service-connected right upper [CTS] and cervical spine injuries with chronic residuals."

In explanation, Dr. Mitchell reasoned that the Veteran has service-connected cervical and lumbar spine disabilities that have progressed with ongoing neck pain. His STRs note the onset of his neck pain and injuries that started and manifested during his active-duty service. His condition has progressively worsened.

His service-connected lum
likely than not (>%50) a direct result of his service-connected cervical spine and upper extremity disabilities and chronically gait." Dr. Mitchell also concluded the Veteran's neuropathy, sciatica, neuritis, radiculopathy, and ulnar nerve pain with CTS are "more likely than not (>50%) due to his service-connected right upper [CTS] and cervical spine injuries with chronic residuals."

His service-connected lumbar degenerative changes have increased his neck pain and undue stress from his lumbar spine. His cervical vertebrae must compensate for the loss of muscle weakness and joint instability to the point it has progressed and will continue to degenerate. The relationship between the lower back and neck is such that the alignment of one always affects the other. When they do not align correctly, the ability of the spine to transfer weight successfully from top to bottom is compromised. The curve of the lower curve starts to go to the cervical spine, and head goes with it. Certain neck movements increase his pain and make it difficult to drive, causing discomfort and neck spasms with radiating pain to his upper arms. He has a weakness and significant function loss of his upper extremities. He has recurrent episodes of incapacitation, and his STRs show waivers owing to multiple traumatic injuries including neck and back strain. He also has several orthopedic and neurological manifestations that should be rated and assigned under separate codes.

Dr. Mitchell further reasoned that the Veteran has recurrent numbness, tingling, and weakness within his upper extremities including neck injury and service-connected lumbar degenerative changes and cervical spine injury. He has nerve damage to his upper extremities caused by combat missions, blast explosion, and multiple head concussions incurred during his active-duty service. His current symptoms were incurred while deployed to Kuwait, with traumatic injuries, service-connected lumbar spine and neck conditions, and shoulder injuries. He reports joint and muscle weakness, neurologic dysfunction, and other chronic residuals daily because of his traumatic spinal injuries.

There are no other medical opinions of record, so none coming to contrary or different conclusions. Dr. Mitchell's opinions thus are uncontroverted.

Therefore, after considering the lay and medical evidence of record relevant to this claim, the Board finds the evidence at the very least, to be in relative equipoise, if not more favorable to this claim, as concerning whether the Veteran's current neurological disorder of his left arm including his neuropathy, sciatica, neuritis, radiculopathy, ulnar nerve pain, and CTS, is proximately due to (caused or aggravated by) the service-connected DJD of his cervical spine with IVDS and radiculopathy with CTS of his right upper extremity.

Certainly, when resolving all reasonable doubt in his favor, service connection is warranted for this neurological impairment of his left arm including the neuropathy, sciatica, neuritis, radiculopathy, ulnar nerve pain, and CTS. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

4. Entitlement to service connection for OSA, including as secondary to the service connected DJD of the cervical spine with IVDS, radiculopathy with CTS of the right upper extremity, hypertension, and tinnitus.

During his hearing before this Board, the Veteran testified that he did not experience any sleep issues or impairment before his military service. See hearing transcript, page 11. He testified that he began using Biotene, a medication to keep your mouth from being dry, during his service. Id. at 15. He currently wakes up with a dry mouth and bad breath. Id. He reported trouble staying asleep while in service because he could not breathe. Id. at 16. His wife, a registered nurse, also attested to this during the hearing and earlier submitted a supporting statement in May 2017 describing the Veteran's snoring and sleeping issues that had worsened during the last 7-8 years. She explained that he would stop breathing, followed by episodes of forceable coughing and gasping for air, to the point that it would wake him up from sleeping multiple times during the night. After sleeping for 6-8 hours at night, he would have trouble waking up in the morning and would be irritable, tired, and unrefreshed upon waking.

A December 2016 Eglin Sleep Center treatment record confirms the Veteran has OSA that is treated
. at 16. His wife, a registered nurse, also attested to this during the hearing and earlier submitted a supporting statement in May 2017 describing the Veteran's snoring and sleeping issues that had worsened during the last 7-8 years. She explained that he would stop breathing, followed by episodes of forceable coughing and gasping for air, to the point that it would wake him up from sleeping multiple times during the night. After sleeping for 6-8 hours at night, he would have trouble waking up in the morning and would be irritable, tired, and unrefreshed upon waking.

A December 2016 Eglin Sleep Center treatment record confirms the Veteran has OSA that is treated with a Continuous Positive Airway Pressure (CPAP) machine.

Service connection already has been established for DJD of the Veteran's cervical spine with IVDS, also for radiculopathy with CTS of his right upper extremity, hypertension, and tinnitus.

Following review of the Veteran's electronic claims file and a telephone interview of him, Dr. Mitchell opined that the Veteran's OSA is "more likely than not (>%50) secondary to his service-connected cervical spine pain, hypertension, upper extremity nerve pain and tinnitus with chronic residuals." Dr. Mitchell explained that the Veteran's service-connected cervical spine, shoulder, and upper extremity nerve disabilities have caused irregular sleep patterns. His nerve compression and chronic pain make it difficult for him to sleep and awaken him most nights. His radiating pain, along with shortness of breath and regurgitation, have attributed to his abnormal sleeping patterns. His recurrent episodes and complaints of shortness of breath are noted throughout his STRs with traumatic injuries and joint pain. He also was exposed to hazardous air pollutants, burn pits, and hazardous chemicals during his deployment to Kuwait and Operation Iraqi Freedom. His symptoms in service included coughing, choking, gasping for air, and chest tightness. He continued to have difficulty breathing, chest tightness, and lightheadedness that progressed past his military service. He had a sleep study suggesting OSA, noted on his PHA in October 2012, and in January 2019 his sleep study confirmed OSA.

There are no other medical opinions of record, so including none tending to conversely show this condition did not originate during the Veteran's many years of military service which did not end until in June 2014.

After considering the lay and medical evidence of record pertinent to this claim, the Board finds that, at the very least, it is as supportive of this claim as against it regarding whether the Veteran's OSA onset during his service, even if not initially officially diagnosed until after conclusion of his service (see 38 C.F.R. § 3.303(d)) or is otherwise related or attributable to his service including proximately due to (caused or aggravated by) the service-connected DJD of his cervical spine with IVDS, radiculopathy with CTS of his right upper extremity, hypertension, and tinnitus. 38 C.F.R. § 3.310.

Even on the chance these service-connected disabilities do not physiologically cause the collapse or obstruction of the Veteran's airway so OSA in a technical sense, Dr. Mitchell's supporting opinion nonetheless confirms the Veteran as likely as not, if not more likely than not, initially had symptoms and manifestations of OSA during his many years of military service and that his service-connected disabilities, especially in combination, alternatively aggravate this condition. Hence, this claim warrants granting on the premise of direct incurrence of this condition during the Veteran's service and, if not, on the premise it is secondary to his service-connected disabilities (again, meaning aggravated by them if not necessarily caused by them). See El-Amin v. Shinseki, 26 Vet. App. 140 (2013).

Accordingly, after resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for OSA is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

5. Entitlement to service connection for a heart disorder (claimed as shortness of breath, palpitations, and other cardiac conditions) as secondary to the service-connected hypertension.

Initially, the Board notes that VA is obligated to identify, develop, and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level. See Wilson v. McDonough, No.19-3791 (Vet. App. January 26, 2022). This heart disorder claim is a complication of the primary hypertension claim that is on appeal to this Board for a higher rating for this service
5107; 38 C.F.R. § 3.102.

5. Entitlement to service connection for a heart disorder (claimed as shortness of breath, palpitations, and other cardiac conditions) as secondary to the service-connected hypertension.

In his August 2020 telephone interview with Dr. Mitchell, the Veteran related experiencing heart flutters, palpitations, and shortness of breath. And, following review of the Veteran's electronic claims file, Dr. Mitchell observed that cardiologists had evaluated the Veteran with an echocardiogram (Echo) and other studies. He has noted sinus tachycardia and atrial fibrillation with abnormal electrocardiograms (EKGs).

The Veteran's hypertension, as mentioned, already has been determined to be a service-connected disability.

In his August 2020 supporting medical opinion, Dr. Mitchell determined the Veteran's claimed palpitations, shortness of breath, and other cardiac conditions are "more likely than not (>%50) due to his service-connected hypertension with extended use of non-steroidal anti-inflammatory drugs (NSAID) medications for service-connected cervical spine and knee disabilities with chronic residuals." This examiner reasoned that the Veteran's chronic joint pain has caused his progression of hypertension due to his prolonged NSAID use. Drug-induced hypertension has been associated with NSAIDs owing to the renal effects of these drugs (meaning their impact on the kidney). NSAIDs cause dose-related increases in sodium and water retention. They decrease the synthesis of prostaglandins (PG) by inhibiting cyclo-oxygenase, an enzyme essential for the transformation of arachidonic acid into PGs. The PGs are essential in the control of blood pressure by virtue of their effects on the kidney and blood vessels.

There are no other medical opinions of record, thus, none tending to refute or contradict Dr. Mitchell's findings and correlation of the Veteran's hypertension (and, more specifically, the medication he takes or has taken for it) and his heart-related ailments.

Consequently, after considering the lay and medical evidence of record concerning this posited correlation, the Board finds the evidence to at least be in relative equipoise, if indeed not more favorable to this claim than against it, concerning whether the Veteran's current heart disorder (claimed as shortness of breath, palpitations, and other cardiac conditions) is proximately due to again, meaning caused or aggravated by, his service-connected hypertension. Hence, with resolution of this reasonable doubt in his favor, this claim must be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

6. Entitlement to service connection for GERD conditions, including GERD specifically but also gastritis, dysphagia, and heartburn as secondary to the service-connected right shoulder strain, DJD of the cervical spine with IVDS, and right knee strain.

As already indicated, VA is obligated to identify, develop, and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level. Wilson, No.19-3791 (Vet. App. January 26, 2022). This GERD claim is a complication of the primary service-connected right shoulder and right knee claims that are on appeal before the Board and "logically relates" to these other claims that are on appeal. Thus, the Board has added this GERD claim to this appeal.

Dr. Mitchell's August 2020 private opinion confirms the Veteran has GERD conditions from a broad standpoint including GERD specifically, but also gastritis, dysphagia, and heartburn.

The Veteran's right shoulder strain, DJD of his cervical spine with IVDS, and right knee strain are adjudicated service-connected disabilities.

Dr. Mitchell's August 2020 private opinion confirms the Veteran has GERD conditions from a broad standpoint including GERD specifically, but also gastritis, dysphagia, and heartburn.

The Veteran's right shoulder strain, DJD of his cervical spine with IVDS, and right knee strain are adjudicated service-connected disabilities.

Following review of the Veteran's electronic claims file and a telephone interview of him, in August 2020 Dr. Mitchell concluded the Veteran's GERD conditions are "more likely than not (>%50) a direct result of his extended use of NSAID medications for his service-connected cervical spine, right shoulder and right knee disabilities with chronic pain residuals." In explanation, Dr. Mitchell reasoned that the Veteran began experiencing GERD symptoms after taking NSAIDs for his traumatic injuries that were incurred during his active-duty military service. His symptoms include pain, persistently recurrent epigastric distress, pyrosis, reflux, and regurgitation. He has received consequent diagnoses of GERD, ulcers, gastritis, and chronic esophageal reflux that have progressed over the years. Dr. Mitchell added that it is known that certain medications may weaken the lower esophageal sphincter (LES) and slow down the body's digestive system. Medical research has proven that NSAIDs are amongst the medication classes known to make this occur.

There are no other medical opinions on record, so none that are contrary. Therefore, at the very least, there is as much evidence tending to support this posited correlation as any against it. Thus, it is as likely as not, if not more likely than not, the Veteran's GERD conditions are proximately due to his already determined to be service-connected right shoulder strain, DJD of his cervical spine with IVDS, and right knee strain. And with resolution of all reasonable doubt in his favor, the Board resultantly finds that service connection is warranted for his claimed GERD conditions. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for sinusitis with URIs is remanded.

Veterans who served in the Southwest Asia theater of operations as defined in 38 C.F.R. § 3.317(e)(2) during the Persian Gulf War (PGW) as defined in 38 C.F.R. § 3.2(i) are presumed to have been exposed to fine particulate matter. Effective August 5, 2021, sinusitis is presumptively service connected for PGW veterans who were exposed to particulate matter. 86 Fed. Reg. 42,724, 42,732 (to be codified at 38 C.F.R. § 3.320). Before deciding this claim, however, the Veteran's complete service personnel records (SPRs) must be obtained to confirm he had qualifying service.

Also, the Board cannot currently make a fully informed decision on this claim because, at the conclusion of the January 2014 VA examination, the examiner determined the Veteran did not have a then current diagnosis of sinusitis. Dr. Mitchell's more recent August 2020 statement suggest otherwise, and during the even more recent November 2021 hearing before this Board the Veteran testified that his sinusitis is seasonal and occurs every Spring/Summer.

When determining whether a Veteran has the condition being claimed, the evidence must show that, at some point since the filing of the claim or proximate to that, he has had the disability, even if it resolves prior to VA's adjudication of the claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McLain on a recent diagnosis even predating the filing of a claim).

The Veteran accordingly must be provided another VA examination for needed medical comment concerning whether he has sinusitis (meaning apart from the allergic rhinitis, i.e., seasonal allergies, which already have been determined to be a service-connected disability). Moreover, because of the admittedly seasonal nature of this additionally claimed sinusitis, the examination preferably should occur in the Spring/Summer. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (indicating that, to the extent possible, VA should schedule an examination for a condition that has cyclical manifestations during an active stage of the disease to best determine its severity); Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) (VA examination ordered during active stage of
concerning whether he has sinusitis (meaning apart from the allergic rhinitis, i.e., seasonal allergies, which already have been determined to be a service-connected disability). Moreover, because of the admittedly seasonal nature of this additionally claimed sinusitis, the examination preferably should occur in the Spring/Summer. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (indicating that, to the extent possible, VA should schedule an examination for a condition that has cyclical manifestations during an active stage of the disease to best determine its severity); Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) (VA examination ordered during active stage of the Veteran's skin disorder).

2. Entitlement to an initial compensable rating for hypertension is remanded.

During the Board hearing, the Veteran identified relevant outstanding treatment records pertaining to his hypertension. See hearing transcript, page 20. Thus, VA must attempt to obtain these additional records since relevant to this claim.

Also, the August 2020 private medical opinion from Dr. Mitchell documents higher blood pressure readings than those that were reported during the most recent VA examination in January 2014. Dr. Mitchell's opinion admittedly was based on review of the Veteran's electronic claims file, rather than personal evaluation of the Veteran, although he interviewed him and considered his then recent treatment records. Dr. Mitchell also posits that the Veteran's chronic joint pain has caused a progression of his hypertension. Therefore, aside from the fact that it now has been several years since the Veteran underwent a VA compensation examiation assessing the severity of his hypertension, additional medical comment is needed in any event concerning whether there is any negative impact on his hypertension owing to his chronic joint pain. See, e.g., Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007).

3. Entitlement to service connection for a sleep disorder other than OSA, including insomnia and as secondary to the now service connected OSA, thoracic and lumbar spine disorder, right shoulder strain, and GERD is remanded.

The Board cannot make a fully-informed decision on this sleep disorder issue because no VA examiner has commented on whether the Veteran's insomnia, as an example, is secondary to any of his service-connected disabilities so including his OSA, thoracic and lumbar spine disorder, and right shoulder strain, or alternatively directly due to his service, such as owing the rotating shifts he had in service.

During his hearing, the Veteran testified that he has trouble staying asleep because of breathing issues, shoulder pain, and back pain. See hearing transcript, page 16. He also testified that his claimed sleep disorder could be from rotating shifts and difficulty getting a "good solid sleep pattern" in service. Id. at 17.

Dr. Mitchell's August 2020 private opinion explains the Veteran experiences sleep disturbance caused by esophageal reflux four or more times per year; however, no rationale for this opinion was provided, and this is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).

The Board consequently is obtaining more medical comment to determine whether the Veteran has a sleep disorder including insomnia separate and distinct from OSA and that was directly caused by his service or alternatively is secondary to (caused or aggravated by) a service-connected disability.

4. Entitlement to an initial rating higher than 20 percent for the right shoulder strain is remanded.

5. Entitlement to an initial compensable rating for the right knee strain is remanded.

The most recent January 2014 VA examinations of the Veteran's right shoulder and right knee do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements, pain on weight-bearing testing, and pain on non-weight-bearing testing. So, this additional information is needed before deciding the appeal of these claims.

6. Entitlement to an initial compensable rating for the allergic rhinitis is remanded.

During his hearing before this Board, the Veteran testified that he experiences allergic rhinitis five times or more per month. See hearing transcript, page 19. This testimony suggests the disability has worsened appreciably since he was last examined by VA in January 2014. During that January 2014 VA examination, he conversely did not report experiencing allergic rhinitis symptoms every month; instead, he cited allergic rhinitis only three months each year.

Another VA compensation examination consequently is needed reassessing the severity and manifestations of the Veteran
, this additional information is needed before deciding the appeal of these claims.

6. Entitlement to an initial compensable rating for the allergic rhinitis is remanded.

Another VA compensation examination consequently is needed reassessing the severity and manifestations of the Veteran's allergic rhinitis. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination).

7. Entitlement to an initial compensable rating for erectile dysfunction is remanded.

The Veteran is receiving Special Monthly Compensation (SMC), so a higher rate of monthly compensation, on account of loss of use of a creative organ because of his erectile dysfunction (ED). See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a).

During his November 2021 Board hearing, the Veteran testified that his penis is deformed when erect (that it is extremely noticeable that it "curves to one side"). See hearing transcript, page 21. He also testified that he requires medication for his penis to become erect. Id. A penile deformity was not documented during his most recent VA examination in January 2014.

According to 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7522, a compensable rating (more specifically, a 20 percent rating) is available for penis deformity with loss of erectile power. But having only one or the other is insufficient. A penile deformity is a distortion of the penis, either internal or external, so a physical deformity apart from loss of erectile power. See, e.g., Williams v. Wilkie, 30 Vet. App. 134 (2018).

More medical comment is needed to assist in making this important determination.

8. Entitlement to an initial compensable rating for bilateral dry eye syndrome with left eye chalazion is remanded.

At his Board hearing, the Veteran testified that he takes medications for his eyes. See hearing transcript, page 22. He did not report any treatment or medication during his most recent VA examination in February 2014. Also, since his last examination, the regulations used to rate eye disabilities have changed. 83 Fed. Reg. 15316 (Apr. 10, 2018) (effective May 18, 2018).

Another examination therefore is needed reassessing the severity of this service-connected disability in relation to the applicable rating criteria.

9. Entitlement to an initial compensable rating for bilateral hearing loss is remanded.

During his November 2021 Board hearing, the Veteran testified that his hearing acuity is getting worse. See hearing transcript, page 23. He last had a VA examination for this service-connected disability in February 2014, so several years ago. He therefore should be reexamined to reassess the severity of this disability. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that when a Veteran claims that a disability is worse than when originally rated (or last examined by VA), and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating).

10. Entitlement to an initial compensable rating for left neck and shoulder keloid scar, status post sebaceous cyst, is remanded.

At his Board hearing, the Veteran testified that he has a bulge and lump mass on his neck from his sebaceous cyst surgery. See hearing transcript, page 24. At his most recent August 2014 VA scar examination and his January 201
new examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating).

10. Entitlement to an initial compensable rating for left neck and shoulder keloid scar, status post sebaceous cyst, is remanded.

At his Board hearing, the Veteran testified that he has a bulge and lump mass on his neck from his sebaceous cyst surgery. See hearing transcript, page 24. At his most recent August 2014 VA scar examination and his January 2014 VA skin examination, this was not shown or otherwise apparent. Additional medical comment thus is needed before deciding the appeal of this claim.

Accordingly, these claims are REMANDED for the following actions:

1. Ask the Veteran to complete a VA Form 21-4142 for the physician who treated his hypertension from November to December 2021. Make two requests for the authorized records from this physician, unless it is clear after the first request that a second request would be futile. 38 C.F.R. § 3.159(c) and (e).

2. Obtain the Veteran's complete SPRs.

3. Schedule the Veteran for a VA examination for his claimed sinusitis with URIs preferably during the Spring or Summer months when he says it is most problematic (i.e., in an "active" stage). The examiner should consider all relevant evidence.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment of his earning capacity, then the examiner should for all intents and purposes consider them a ratable "disability" for the purpose of providing the requested opinion below.

The examiner is asked to provide a response to the following:

Is any currently diagnosed sinusitis with URIs at least as likely as not related or attributable to the Veteran's service, including especially to exposure to chemicals or fine particulate matter during his service?

In providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

*Also, confirmation of the Veteran's PGW service in turn would warrant presumptive association of his sinusitis to that (assuming the sinusitis is confirmed).

Also indicate whether the Veteran has sinusitis apart from the already determined to be service-connected allergic rhinitis (seasonal allergies).

Provide rationale for the opinion, regardless of whether favorable or unfavorable to the claim preferably citing to findings or other evidence of record supporting conclusion and/or accepted medical authority.

4. Schedule the Veteran for an examination to reassess the severity of his service-connected hypertension. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria.

5. Obtain an addendum opinion regarding the Veteran's current sleep disorder, including his insomnia (so difficulty getting to sleep and staying asleep), but also recognizing that it already has been determined that his OSA is a service-connected disability.

The examiner, therefore, is asked to provide a response to the following:

Is the current sleep disorder at least as likely as not related or attributable to the Veteran's service, including directly attributable to his service from the rotating shifts and difficulty he had getting a "good solid sleep pattern" while in service or is his entire sleep impairment instead owing to his OSA that, as mentioned, since has been attributed to his service or service-connected disabilities?

(a) If it is determined there is a separate and distinct sleep disorder of some other sort (meaning aside from OSA, so not a symptom of it) is this other sleep disorder at least as likely as not proximately due to the service connected OSA?

(b) Alternatively, is this other sleep disorder at least as likely as not aggravated by the service connected OSA?

(c) Is this other sleep disorder at least as likely as not
reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

(b) Alternatively, is this other sleep disorder at least as likely as not aggravated by the service connected OSA?

(c) Is this other sleep disorder at least as likely as not proximately due to the service-connected thoracic and lumbar spine disorder?

(d) Is this other sleep disorder at least as likely as not aggravated by the service-connected thoracic and lumbar spine disorder?

(e) Is this other sleep disorder at least as likely as not proximately due to the service-connected right shoulder strain?

(f) Is this other sleep disorder at least as likely as not aggravated by the service-connected right shoulder strain?

(g) Is this other sleep disorder at least as likely as not proximately due to the service-connected GERD conditions?

(h) Is this other sleep disorder at least as likely as not aggravated by the service-connected GERD conditions?

Provide rationale supporting the opinions.

6. Schedule the Veteran for an examination to reassess the severity of his service-connected right shoulder strain. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria.

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

7. Schedule the Veteran for an examination reassessing the severity of his service-connected right knee strain. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria.

8. Schedule the Veteran for an examination reassessing the severity of his service-connected allergic rhinitis. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria.

9. Schedule the Veteran for an examination reassessing the severity of his service-connected erectile dysfunction. Inform the Veteran to take his medication prior to the examination so that his penile deformity when erect can be evaluated by the examiner. The examiner should provide a full description
deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

9. Schedule the Veteran for an examination reassessing the severity of his service-connected erectile dysfunction. Inform the Veteran to take his medication prior to the examination so that his penile deformity when erect can be evaluated by the examiner. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria.

10. Schedule the Veteran for an examination reassessing the severity of his service-connected bilateral dry eye syndrome with left eye chalazion. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria.

11. Schedule the Veteran for an examination reassessing the severity of his service-connected bilateral hearing loss. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria.

12. After completing the above development, and any additionally development indicated, readjudicate these claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them opportunity to respond to it before returning any remaining claim to this Board for further appellate consideration.

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. M. Watkins, 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.

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