CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

C. J. MCENTEE · 2022 · Case ID: 22033548

MIXED

Summary

The Veteran served from September 1981 to February 1982 and August 1982 to August 1986. The Veteran appeals the denial of service connection for a breathing disability, cervical spine, lumbar spine, right and left hip, and right and left shoulder disabilities. The Veteran also appeals the denial of a compensable rating for bilateral hearing loss and an earlier effective date for tinnitus. Service connection for a breathing disability was denied, with the Board finding no medical evidence of a breathing disorder related to service, other than the service-connected sinusitis. The private physician's opinion linking COPD and asthma to asbestos exposure was deemed unclear and unsupported by medical records, and a VA examination found no indication of a breathing disorder. Claims for spine and hip/shoulder disabilities were denied due to lack of evidence showing they began during service or were related to service-connected conditions. The bilateral hearing loss claim was denied as not meeting criteria for a compensable rating, with the Board noting the Veteran's hearing loss was level II in the right ear and level III in the left ear, and that service treatment records were negative for hearing loss complaints. The claim for an earlier effective date for tinnitus was denied as the appeal was not timely filed for that specific issue. Several issues were remanded: increased rating for tinnitus, compensable rating for sinusitis (for outstanding records and new exam), increased rating for left knee disability (for new exam due to conflicting evidence), and service connection for anxiety and blurred vision as secondary to hearing loss and tinnitus.

Rationale

No medical evidence of breathing disorder related to service; Private physician opinion unclear and unsupported; VA examination found no indication of breathing disorder

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-00 154A

Full Decision Text

Citation Nr: 22033548
Decision Date: 06/08/22 Archive Date: 06/08/22

DOCKET NO. 19-00 154A
DATE: June 8, 2022

ORDER

Service connection for breathing problems is denied.

Service connection for a cervical spine disability is denied.

Service connection for a lumbar spine disability is denied.

Service connection for a right hip disability is denied.

Service connection for a left hip disability is denied.

Service connection for a right shoulder disability is denied.

Service connection for a left shoulder disability is denied.

A compensable rating for bilateral hearing loss is denied.

An effective date earlier than January 11, 2018, for the grant of service connection for tinnitus, is denied.

REMANDED

Entitlement to a rating in excess of 10 percent for tinnitus is remanded.

Entitlement to a rating in excess of 10 percent for a left knee disability is remanded.

Entitlement to a compensable rating for sinusitis is remanded.

Entitlement to a compensable rating for cephalgia is remanded.

Entitlement to service connection for anxiety is remanded.

Entitlement to service connection for blurred vision is remanded.

Entitlement to service connection for obstructive sleep apnea (OSA) is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran suffers from a breathing disability that began during active service, or is otherwise related to an in-service injury or disease.

2. The evidence of record persuasively weighs against finding that the Veteran suffers from a cervical spine disability, lumbar spine disability, right or left hip disability, or right or left shoulder disability that began during active service, or is otherwise related to an in-service injury or disease, or to a service-connected disability.

3. The Veteran's hearing loss is manifested by an auditory acuity of level II in the right ear and level III in the left ear.

4. The earliest claim filed for service connection for tinnitus was January 11, 2018.

CONCLUSIONS OF LAW

1. The criteria for service connection for a breathing disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

3. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

4. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

5. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

6. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

7. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

8. The criteria for a compensable rating for bilateral hearing loss has not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100.

9. The criteria for an earlier effective date for the grant of service connection for tinnitus are not met. 38
.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

8. The criteria for a compensable rating for bilateral hearing loss has not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100.

9. The criteria for an earlier effective date for the grant of service connection for tinnitus are not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from September 1981 to February 1982 and from August 1982 to August 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).

In August 2021, the Court of Appeals for Veterans Claims issued a Memorandum Decision vacating the August 2019 Board decision that denied an increased rating for bilateral hearing loss. Therefore, that issue is now before the Board. The remanded claims for an increased rating for tinnitus, and entitlement to service connection for anxiety, headaches, and blurred vision stem from the Memorandum Decision as outlined below. The remaining claims on appeal stem from an April 2018 rating decision. In October 2019, the RO issued a statement of the case as to the claim for an earlier effective date for the grant of service connection for tinnitus.

Service Connection

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).

1. Service connection for a breathing disability is denied.

The Veteran contends that he suffers from a breathing disability related to breathing in asbestos while aboard a naval ship in service.

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.

Here, the Board finds no medical evidence that the Veteran suffers from any breathing disability, other than the service-connected sinusitis, related to his service. In December 2017, a private physician stated that the Veteran suffers from chronic obstructive pulmonary disorder (COPD) and asthma related to exposure to asbestos dust in service. However, the basis for these diagnoses is unclear. This opinion is not accompanied by a medical examination or other supportive medical records. Moreover, a review of the copious VA treatment records is negative for a diagnosis of COPD and/or asthma.

On March 2018 VA examination, the examiner found no indication of a breathing disorder. While a pulmonary function test was attempted, the Veteran did not complete the test due to coughing. Again here, the Board notes that he is service-connected for chronic sinusitis. Other than that disability, the evidence does not demonstrate the presence of a breathing disability related to his service. While the Veteran is also noted to suffer from rhinitis, the Veteran has not claimed that his condition is related to exposure to asbestos in service, and there is no medical evidence in the record to support such an assertion or to suggest that this disability is otherwise related to service.

The Veteran believes that he has a breathing disorder is related to an in-service injury, event, or disease, specifically exposure to asbestos. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki
.

In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a breathing disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

2. Service connection for a cervical spine disability is denied.

3. Service connection for a lumbar spine disability is denied.

4. Service connection for a right hip disability is denied.

5. Service connection for a left hip disability is denied.

6. Service connection for a right shoulder disability is denied.

7. Service connection for a left shoulder disability is denied.

The Veteran contends that his cervical spine disability, lumbar spine disability, right and left hip disabilities, and right and left shoulder disabilities are related to his service.

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.

The Board concludes that, while the Veteran has a current diagnosis of a cervical spine disability, lumbar spine disability, and hip and shoulder disabilities, the evidence of record persuasively weighs against finding that the Veteran's disabilities began during service or are otherwise related to an in-service injury, event, or disease, or are related to a service-connected disability.

First, a review of the service treatment records is negative for indication that the Veteran suffered from an injury to, or complaints related to, the cervical spine, lumbar spine, hips, or shoulders.

The Board has considered the December 2017 private medical opinion that related the Veteran's cervical spine disability, lumbar spine disability, and hip and shoulder disabilities to his service. However, while this opinion is supportive of the Veteran's claim, it is not accompanied by any rationale. The opinion conclusively states that the Veteran has suffered from these disabilities since service, but does not identify any medical evidence, or any other evidence, to support that finding. In that regard, a review of the service treatment records is negative for indication of injury to the neck, low back, hips, or shoulders. The Veteran has also not provided specific contentions as to how these disabilities are related to service other than general statements of service relation. The record also demonstrates that the Veteran was first treated for these disabilities many decades following service separation. The Veteran separated from service in 1986. As shown by the evidence, he first sought treatment for these disabilities in the early 2000s. Given that the December 2017 opinion is deficient in rationale and consistency with the record, the Board assigns it low to no probative weight.

On the other hand, on March 2018 VA examination, the VA examiner conducted physical examination of the Veteran, and reviewed the record, but found that it was less likely than not that the Veteran's cervical spine disability, lumbar spine disability, and hip and shoulder disabilities were etiologically related to his service. The examiner explained that there was no indication of an injury for any of these disabilities in service, the first indication of treatment was not until the 2000s, and that there was no other indication that the disabilities were related to his service. Significantly, the Veteran sustained a motor vehicle accident in 2002, at which time he suffered from back pain. In December 2015 and in January 2019, other VA examiners also related these disabilities to the natural aging process.

The Board finds that the March 2018 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet
examiner explained that there was no indication of an injury for any of these disabilities in service, the first indication of treatment was not until the 2000s, and that there was no other indication that the disabilities were related to his service. Significantly, the Veteran sustained a motor vehicle accident in 2002, at which time he suffered from back pain. In December 2015 and in January 2019, other VA examiners also related these disabilities to the natural aging process.

The Board finds that the March 2018 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the March 2018 VA opinion, as well as the December 2015 and January 2019 VA opinions.

The Board has also considered the contention that the Veteran's hip disabilities or low back disability are secondary to service-connected left knee disability. However, as was concluded by the December 2015 VA examiner, the Veteran's hip disabilities and low back disability are likely due to the natural aging process. Because the Veteran had no abnormal weight bearing due to his left knee disability, there was no proximate relationship between his left knee disability and his low back disability or hip disabilities. Furthermore, in January 2019, a VA examiner reviewed the record once more and agreed with the above opinion, adding that there was no evidence that the Veteran's left knee disability caused or aggravated his hip disability, lumbar spine disability, or shoulder disabilities in that the Veteran's disabilities on appeal are due to separate etiologies to include repetitive use and aging. The examiner included medical articles to support the conclusion that there was no pathological relationship between the Veteran's left knee disability and his lumbar spine, hip, or shoulder disabilities.

The Veteran believes his cervical spine disability, lumbar spine disability, and hip and shoulder disabilities are related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and specific medical knowledge and expertise. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials 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). Consequently, the Board gives more probative weight to the VA examinations as described above.

Accordingly, the evidence is persuasively against these claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for cervical spine disability, lumbar spine disability, and hip and shoulder disabilities is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Increased Rating

8. A compensable rating for bilateral hearing loss is denied.

The Veteran disagrees with the noncompensable rating for bilateral hearing loss and seeks an increased rating under Diagnostic Code 6100. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38C.F.R. §4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85.

The Veteran received a VA contract audiology examination in April
the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38C.F.R. §4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85.

The Veteran received a VA contract audiology examination in April 2018. The results of the audiological evaluation of April 2018 follow:

HERTZ

1000 2000 3000 4000 Avg CNC

RIGHT 35 40 60 70 51 90

LEFT 45 60 75 85 66 88

Based on the April 2018 audiogram results, the Veteran has Level II hearing impairment in the right ear and Level III hearing impairment in the left ear. The process is outlined below.

To determine the pure tone threshold average, 38 C.F.R. § 4.85(d) first requires the Board to average the pure tone thresholds at 1000, 2000, 3000, and 4000Hz for each ear. In the Veteran's case, this results in an average of 51.25 (35+40+60+70/4) for his right ear and 66.25 for his left ear (45+60+75+85/4). Next, the Board cross references the Veteran's average pure tone threshold and speech recognition ability on 38C.F.R. §4.85, Table V. To determine the roman numeral designation for each ear. The results of cross-referencing the Veteran's 51-decibel average and his 90 percent speech recognition ability results in a roman numeral II for his right ear, and the results of cross referencing his 66-decibel average and 88 percent speech recognition ability results in a roman numeral III for his left ear.

Finally, the Board consults Table VII to determine the Veteran's disability percentage. Applying the Veteran's roman numeral designations to Table VII results in a noncompensable disability rating under 38C.F.R. §4.85, Diagnostic Code 6100. The Board also evaluated the Veteran's eligibility for consideration under 38C.F.R. §4.86(a) and 38 C.F.R. § 4.85(b), but his hearing loss does not fit the parameters of either of those hearing impairment provisions. The evaluation for hearing loss is based on objective testing. Thus, the objective VA examination report does not support an assignment of an initial disability rating greater than the Regional Office has already awarded.

The Board has also considered the December 2017 private report by Dr. Y., as was referenced by the August 2021 Memorandum Decision. In that report, Dr. Y., concludes that the Veteran suffers from 40 percent loss in the right ear and 50 percent loss in the left ear. This conclusion, however, does not provide any further data that could provide for an increased rating. For one, Dr. Y., does not verify or even indicate that the percentages listed are drawn from the VA rating criteria as outlined in 38 C.F.R. § 4.85. Thus, the criteria for determining those percentages is not clear. Also of note here, Dr. Y. requested that the Veteran undergo a pure tone audiogram and then return such results for review, indicating that an audiogram had not been performed on examination. Therefore, there is no evidence that Dr. Y.'s conclusion was based on clinical testing, much less the type of testing that is necessary to rate the claim. Therefore, while the Board has considered this positive evidence, for the reasons explained, it does not provide for a higher rating for the Veteran. This is especially so since the percentages listed are at odds with the audiometric testing completed in 2018. Again, ratings for hearing loss are based upon pure tone hearing threshold and speech recognition scores. All available testing has been considered in this case.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact
is especially so since the percentages listed are at odds with the audiometric testing completed in 2018. Again, ratings for hearing loss are based upon pure tone hearing threshold and speech recognition scores. All available testing has been considered in this case.

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board notes that the Veteran's other reported symptoms, that of anxiety, headaches, and blurred vision, have been remanded for further development below and that if these disabilities are granted, this decision does not affect the future effective dates of those potential awards. The Board finds that extraschedular consideration is not warranted, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc. As there are no further unaccounted for symptoms, again, the Board finds that a compensable rating is not warranted.

Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating for hearing loss. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Earlier Effective Date

9. An effective date earlier than January 11, 2018, for the grant of service connection for tinnitus is denied.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(b)(2).

A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p).

The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r).

The Board finds that an effective date earlier than January 11, 2018, for the grant of service connection for tinnitus is not warranted. The record reflects that the Veteran first filed a claim for service connection for tinnitus on that date. There is no indication of a previous claim, formal or informal, for this disability. The Veteran has not provided any further contentions related to this claim. Accordingly, the claim for an earlier effective date must be denied.

REASONS FOR REMAND

1. Entitlement to a rating in excess of 10 percent for tinnitus is remanded.

As noted by the August 2021 Memorandum Decision, in May 2018, the Veteran filed a notice of disagreement to a May 2018 rating decision that granted service connection for tinnitus and assigned a 10 percent rating. Later, in June 2018, the Veteran filed a notice of disagreement only to the bilateral hearing loss rating. In January 2019, the RO stated that due to the later filed June 2018 notice of disagreement, only the issue of entitlement to an increased rating for bilateral hearing loss was considered to be appealed. However, when construing the May 2018 notice of disagreement liberally, and when considering the Veteran's intention, the Board finds that the issue of entitlement to an increased rating for tinnitus was also timely appealed by the May 2018 filing. Thus, a statement of the case must be issued as to this claim for increased rating for tinnitus on remand.

2. Entitlement to a compensable rating for sinusitis is remanded.

The record reflects that the Veteran has
of disagreement only to the bilateral hearing loss rating. In January 2019, the RO stated that due to the later filed June 2018 notice of disagreement, only the issue of entitlement to an increased rating for bilateral hearing loss was considered to be appealed. However, when construing the May 2018 notice of disagreement liberally, and when considering the Veteran's intention, the Board finds that the issue of entitlement to an increased rating for tinnitus was also timely appealed by the May 2018 filing. Thus, a statement of the case must be issued as to this claim for increased rating for tinnitus on remand.

2. Entitlement to a compensable rating for sinusitis is remanded.

The record reflects that the Veteran has suffered from recurrent sinusitis for many years. VA treatment records reflect that in February 2020, the Veteran underwent sinus surgery at an Ear, Nose, and Throat clinic. The records related to this procedure are not of record. Considering this, and that his sinusitis disability may have changed, the Board finds that a remand is needed to obtain any pertinent outstanding records and to obtain a new VA examination.

3. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded.

The Board finds that a new VA examination is necessary in order to accurately assess the Veteran's claim. A review of the March 2018 VA examination showed no response for the question of whether the Veteran suffered from a meniscal condition. The examination showed that the Veteran was reluctant to physical examination of his left knee. More recently, in October 2019, a MRI of the left knee showed a meniscal tear and anterior cruciate ligament tear. Given that the most recent VA examination showed minimal examination findings, and that there is this more recent evidence of a meniscal tear, the Board finds that a new VA examination should be obtained.

4. Entitlement to service connection for anxiety is remanded.

5. Entitlement to service connection for blurred vision is remanded.

As per the August 2021 Memorandum Decision, the Board finds that the issues of entitlement to service connection for anxiety, headaches, and blurred vision have been raised by the record as secondary claims for service connection stemming from the Veteran's claim for increased rating for hearing loss and tinnitus. Here, the Board finds that these issues are logically raised by the record and thus the duty to assist to obtain a VA examination has been triggered. Such should be accomplished on remand.

In that regard, service connection has already been granted for posttraumatic stress disorder (PTSD) with depressive disorder and for cephalgia, claimed as headaches. However, because the above claims are raised by the record, and they vary from the specific disabilities that are already service-connected, it is most beneficial to the Veteran to still develop and adjudicate these claims.

6. Entitlement to service connection for OSA is remanded.

The Veteran contends that his OSA was caused or aggravated by his service or his service-connected PTSD and/or sinusitis. In December 2017, a private physician opined that the Veteran's OSA was related to his PTSD and sinusitis, but did not provide a rationale for that opinion. This theory of secondary service connection has not been addressed by a VA examiner. Therefore, a remand is needed for an opinion on the matter.

7. Entitlement to a compensable rating for cephalgia is remanded.

Because the claim for service connection for headaches as secondary to service-connected hearing loss and tinnitus is being remanded for VA examination, the Board finds that a decision as to the rating for cephalgia is premature at this time.

The matters are REMANDED for the following action:

1. Issue a statement of the case with regard to the claim for increased rating for tinnitus stemming from the May 2018 notice of disagreement.

2. Ask the Veteran to complete a VA Form 21-4142 for records related to his sinusitis, to include his 2020 sinus surgery. Make two requests for the authorized records from, unless it is clear after the first request that a second request would be futile.

3. Obtain the Veteran's VA treatment records since May 2020.

4. Schedule the Veteran for a VA examination to assess the severity of his sinusitis.

5. Schedule the Veteran for a VA examination assess the severity of his left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the 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
the Veteran's VA treatment records since May 2020.

4. Schedule the Veteran for a VA examination to assess the severity of his sinusitis.

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)

In so doing, the examiner must 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.

The examiner should also attempt to elicit information regarding the degree of functional loss after repeated use over time. 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 after repeated use over time based on the other evidence of record and the Veteran's statements.

6. Develop the claims for service connection for anxiety and blurred vision as secondary to the service-connected bilateral hearing loss and tinnitus.

7. Schedule the Veteran for a VA examination for his OSA. The examiner must review the claims file.

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

Is the Veteran's OSA at least as likely as not proximately due to his service-connected psychiatric disorder (PTSD with depressive disorder) or sinusitis?

Is OSA at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected psychiatric disorder (PTSD with depressive disorder) or sinusitis?

Please explain in detail any opinion provided and the supporting rationale.

In rendering the requested opinions, the examiner should note that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology.

(Continued on the next page)

In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture.

C. J. McEntee

Acting Veterans Law Judge

Board of Veterans' Appeals

R. Erdheim, Attorney for the Board Department of Veterans Affairs

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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