Citation Nr: 20010285 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 13-06 336 DATE: February 6, 2020 REMANDED Entitlement to service connection for a sinus condition is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1969 to March 1971 in the United States Navy. These matters come before the Board of Veterans’ Appeals (Board)on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing. A transcript of the hearing has been associated with the claims file. In December 2015, the Board denied service connection for a low back disability and denied service connection for a sinus disability, to include as secondary to asbestos exposure. In September 2017, the United States Court of Appeals for Veterans Claims (Court), based on joint motion for remand, vacated the December 2016 Board decision. The Court remanded the issue concerning service connection for a low back disability to the Board so that an adequate statement of reasons or bases explaining material findings and conclusions could be obtained. Further, the Court remanded the issue of service connection for sinusitis so that an adequate VA examination and etiology opinion could be obtained. The claims were again remanded by the Board in March 2018. In September 2019, the Board again remanded the claim for service connection for a low back disability. 1. Sinus Condition The Veteran asserts service connection for a sinus disorder is warranted as secondary to Agent Orange, asbestos, or environmental exposures while serving in the Navy. The Veteran’s case was previous subject to a stay that has been lifted. The United States Court of Appeals for the Federal Circuit (Court) held that 38 U.S.C. § 1116 unambiguously expressed Congress' intent that those who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to the presumption of herbicide agent exposure. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). The Board further notes that, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, which extends the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019). This law took effect on January 1, 2020. Id. As the Veteran has asserted service connection based on herbicide agent exposure and the file indicates the Veteran served within the official waters of Vietnam, the Board finds additional development is necessary to determine whether the Veteran’s sinusitis is due to herbicide agent exposure in service. The RO has not obtained a VA opinion as to whether the Veteran’s sinusitis is due to herbicide exposure, and as such, a VA opinion is necessary to determine whether service connection for a sinus disorder is warranted based on exposure to herbicide agents. The Board cannot make a fully-informed decision on the issue of service connection for sinusitis because no VA examiner has opined whether the Veteran’s sinusitis was related to “probable” asbestosis exposure or herbicides. In a March 2018 Board remand, the Board requested an opinion as to whether the Veteran’s current sinusitis disability is etiologically related to the “probable” asbetos exposures he sustained in service. In a VA opinion dated in November 2018, the examiner indicated there is no medical research stating that asbestosis causes sinusitis. However, there has been no assertion that the Veteran has asbestosis, but that his sinusitis is due to probable asbestos exposure. As such, an additional VA opinion is necessary. The matters are REMANDED for the following action: 1. Determine whether the Veteran was present within 12 nautical miles of Vietnam during his period of active service at time when herbicide agents were used. 2. If available, obtain additional medical comment from the November 2018 VA examiner, Dr. Beal, involving the Veteran’s sinusitis claim. If the examiner is unavailable, send the claims file to an appropriate examiner. After reviewing the claims file, to include any articles submitted, the examiner should provide an etiology opinion as to the following: (Continued on the next page)   a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current sinusitis disability is etiologically related to the “probable” asbestos exposure he sustained in service, and, b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current sinusitis disability is etiologically related to any presumed herbicide agent exposure he sustained in service. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri 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.