Citation Nr: 21000416 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-47 879 DATE: January 5, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to November 1974, and from September 1990 to July 1991. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran also has over 16 years of inactive duty service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided testimony before the undersigned Veterans Law Judge at a July 2019 Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. This matter was previously before the Board in October 2019, at which time it was remanded for additional evidentiary development, to include obtaining updated VA treatment records and scheduling a VA examination. The Board noted that the Veteran was diagnosed with sinusitis, sleep apnea, and chronic obstructive pulmonary disease (COPD). The Board requested that the VA examiner address whether these disabilities began during or were otherwise etiologically related to the Veteran’s active duty service, to include his service in the Southwest Asia theater of operations during the Persian Gulf War. If any of the Veteran’s respiratory symptoms were not a manifestation of an identifiable diagnosis, the VA examiner was instructed to discuss whether the symptoms were due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, as described in 38 C.F.R. § 3.317. The Veteran attended a VA examination in December 2019 to assess the nature and severity of his claimed respiratory disability. The VA examiner confirmed a diagnosis of COPD. The VA examiner considered the Veteran’s lay reports describing smoke inhalation while serving in the Persian Gulf War, and a subjective history of choking in his sleep. The VA examiner explained that COPD, obstructive sleep apnea, and sinusitis have identifiable causes and are not considered undiagnosed or medically unexplained illnesses. Following a complete review of the record and in-person assessment, the VA examiner declined to link the Veteran’s COPD and obstructive sleep apnea to the Veteran’s active duty service, to include his service in the Persian Gulf War. Instead, the VA examiner attributed these disabilities to the Veteran’s extensive history of tobacco and marijuana abuse. The Board finds that this VA medical opinion is sufficient for adjudicative purposes, and no further evidentiary development is warranted regarding the Veteran’s COPD and obstructive sleep apnea. Regarding sinusitis, the VA examiner stated that a March 2012 computed tomography (CT) image of the sinuses was negative for sinusitis, without the need for repeat testing. The Board has been unable to locate March 2012 CT results in the electronic claims file but believes that the VA examiner was referring to an August 2013 CT image of the sinuses. Nonetheless, the VA examiner opined that the Veteran did not have sinusitis that was incurred in or caused by his service in the Persian Gulf War, based on the lack of objective evidence of sinusitis in the referenced CT study. However, at an April 2014 VA otolaryngology consultation, a nurse practitioner (NP) reviewed a February 2014 magnetic resonance image of the orbits, which was negative, and an August 2013 CT image of the sinuses, which showed mucosal thickening and retention cyst. The NP opined that these imaging tests showed “very minimal sinus disease” but were minimally suggestive of chronic rhinosinusitis. The NP assessed the Veteran with “possible chronic sinusitis.” From this date forward, a diagnosis of “chronic sinusitis” permeated the “active problems” list in the Veteran’s VA treatment records. It remains unclear why the April 2014 VA NP reviewed the CT sinus results and determined they showed possible chronic sinusitis, whereas the December 2019 VA examiner reviewed presumably the same CT results and ruled out a current disability of sinusitis. The Board is cognizant that the current disability requirement in a service connection claim is satisfied if a disability exists at the time of filing or during the pendency of the claim, unless a competent opinion indicates that any identified disability or diagnosis of record was rendered in error. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 303, 311 (2013). Accordingly, a remand is warranted to obtain clarification on the presence of a current sinusitis disability within the appellate period, and if so, a corresponding medical nexus opinion must be obtained. The Board also finds that the Veteran’s April 2014 diagnosis of vasomotor rhinitis and nasal allergies is within the scope of his claim involving a respiratory disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Upon remand, the VA examiner shall also be requested to address whether these disabilities were incurred in or are otherwise etiologically related to the Veteran’s active duty service. The RO is also requested to obtain updated VA treatment records from August 2020 to the present. See 38 C.F.R. § 3.159(c)(2) and (3). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the present. 2. Regarding the Veteran’s claimed sinusitis, vasomotor rhinitis, and nasal allergies, obtain an addendum VA medical opinion from an appropriate VA examiner. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Has the Veteran carried a diagnosis of sinusitis within the appellate period? In answering this question, the VA examiner is requested to review the April 2014 VA otolaryngologic consultation records diagnosing possible chronic sinusitis—as well as the December 2019 VA medical opinion ruling out a diagnosis of sinusitis—and reconcile these opposing records. If the VA examiner determines that the Veteran has not carried a diagnosis of sinusitis during the pendency of the claim, s/he must explain why the April 2014 VA NP’s assessment of “possible chronic sinusitis” was incorrect. (b.) If the Veteran has experienced a current sinusitis disability within the appellate period, is it at least as likely as not (50 percent probability or greater) that the Veteran’s current sinusitis was incurred in or is otherwise etiologically related to the Veteran’s active duty service, to include his service in the Southwest Asia theater of operations during the Persian Gulf War which exposed him to oil fires and sand? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s April 2014 diagnosis of vasomotor rhinitis and nasal allergies was incurred in or is otherwise etiologically related to his active duty service, to include his service in the Southwest Asia theater of operations during the Persian Gulf War which exposed him to oil fires and sand? All medical opinions issued by the VA examiner must be accompanied by complete rationales based on the VA examiner’s clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.