Citation Nr: 18156170 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-15 410 DATE: December 7, 2018 ORDER Service connection for asthma is granted. Service connection for memory loss secondary to service-connected traumatic brain injury (TBI) residuals is granted. REMANDED Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. The Veteran’s asthma was incurred in service. 2. The Veteran’s memory loss developed secondary to his service-connected TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma are met. 38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for memory loss are met. 38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to December 2006 and May 2009 to June 2010, which included combat service in Iraq. His honors and awards include the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Additionally, service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a Veteran has asserted service connection for injuries incurred in combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. See 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). In the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be evidence of a current disability and a causal relationship between the disability and the combat injury. Id. at n.9 (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for asthma. Here, the Veteran asserts that he developed asthma due to his exposure to hazardous environments in Iraq. See May 2012 Statement in Support of Claim (VA Form 21-4138). Upon examination in March 2018, a VA examiner noted that the Veteran was exposed to dust, sand, and burn pits during service and had post-service exposure to dust. It was noted that asthma had its onset in 2012, which was only two years after significant in-service particulate exposure. The examiner opined that although there is no medical literature support as yet for direct association of respiratory conditions from burn pit and Southwest Asia environmental exposure, this particular sequence of initial insults followed by intermittent continued exposure resonates as a causal mechanism for extrinsic asthma; no other physician has offered an opinion to the contrary; and his medical records do not support another more plausible etiology or other risk factors for the current condition. Thus, the current respiratory condition is at least as likely as not service related. Thus, the evidence shows that the Veteran’s current disability is etiologically related to his military service and service connection for asthma is warranted. 2. Entitlement to service connection for memory loss secondary to service-connected TBI residuals. In an April 2012 VA medical opinion, a VA clinical psychologist opined that the Veteran’s short-term memory issues are attributable to his service-connected TBI and reported that there was objective evidence of mild cognitive impairment in several areas of cognitive functioning, including short-term memory and working memory. In light of the foregoing, the Board finds that service connection for memory loss secondary to TBI is warranted. See 38 C.F.R. § 3.310(a). The Board notes that service connection is warranted notwithstanding previous findings that the Veteran has already been compensated for memory loss as a symptom of his service-connected TBI and/or posttraumatic stress disorder, and thus, the criteria for service connection for memory loss are not met. To this point, the Board finds that the potential for pyramiding of ratings for memory loss is a downstream concern that is relevant regarding the rating to be assigned for the now service-connected memory loss. See 38 C.F.R. § 4.14 (2017) (indicating that the evaluation of the same disability under various diagnoses is to be avoided). Generally, the rule against pyramiding, which is part of the general policy in rating on the schedule for rating disabilities, comes into question when a disability rating is assigned, not when VA is determining whether a condition is service connected. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis is remanded. The RO previously denied service connection for sinusitis because a history of sinusitis is not shown and post-service records do not show a diagnosis of sinusitis. See, e.g., May 2016 Supplemental Statement of the Case, p. 2. The Board notes, however, that a clinician noted an impression of “chronic sinusitis with acute air-fluid levels” during the appeal (or since the Veteran filed his claim of service connection in November 2010). See December 2011 Brain CT Scan report. In light of the foregoing, the Board finds that VA must provide an examination and obtain an adequate opinion regarding the etiology of the Veteran’s claimed sinus condition or other functional impairment of the sinuses, to include an opinion regarding whether he has a condition that may be related to a chronic multisymptom illness. See 38 C.F.R. § 3.317 (2017) (compensation for certain disabilities occurring in Persian Gulf veterans); Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). The matter is REMANDED for the following action: 1. Associate with the claims file all outstanding VA treatment records and any other pertinent records identified by the Veteran during the course of the remand. If any of the requested records are not available, this should be indicated in the file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature of his sinusitis symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Afford the Veteran a VA examination. The claims file must be made available to, and reviewed by, the examiner. All findings should be reported in detail. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology and undertake any necessary studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of the claimed condition are attributable to a known clinical diagnosis or whether there is any identifiable functional impairment of the sinuses. Please note specifically whether there is any functional impairment, with or without a specific diagnosis. If the Veteran does not now have but previously had any such condition, when did the condition resolve? (b) State whether the Veteran’s disability pattern is consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (2) a diagnosable chronic multisymptom illness with a partially explained etiology; or (3) a disease with a clear and specific etiology and diagnosis. (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran has either (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposure experienced by the Veteran during service in Southwest Asia during the Persian Gulf War. (d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (f) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies)? If yes, was that increase in severity due to the natural progress of the disease? In answering all questions (a) to (f), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran’s VA claims file. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. If the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel