Citation Nr: 21063685 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 19-25 367 DATE: October 15, 2021 ORDER Entitlement to service connection for a sinus condition, to include sinusitis, is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for low back disability is remanded. FINDING OF FACT During the period on appeal, the Veteran has a diagnosis of chronic sinusitis, and the record demonstrates the Veteran served a qualifying period of service in the Southwest Asia theater of operations during the Persian Gulf War to establish presumptive service connection. CONCLUSION OF LAW The criteria for entitlement to service connection for a sinus condition, to include sinusitis, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317; 86 Fed. Reg. 42,724 (August 5, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marines on active duty from July 1998 to January 1999 and January 2003 to August 2003. The issues come before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2021. A transcript of the hearing has been included with the record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for a sinus condition, to include sinusitis The Veteran contends that he suffers from sinusitis related to his active service in Southwest Asia. VA issued an interim final rule to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, and sinusitis, to include rhinosinusitis, related to presumed exposures to fine particulate. 86 Fed. Reg. 42,724 (August 5, 2021). Under the newly created rule, presumptive service connection would apply to veterans with a qualifying period of service of active duty in the Southwest Asia theater of operations during the Persian Gulf War, as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001. Id. The interim final rule shall apply to all qualifying claims applications that are received by VA on or after August 5, 2021, or that were pending before VA, on August 5, 2021. Id. The record contains the Veteran's private medical records noting a diagnosis of, and treatment for, chronic sinusitis. The Veteran's April 2014 private medical treatment record reported the Veteran's clinical history of chronic sinusitis. The Veteran's medical history reveals repeated treatment for paranasal sinus inflammatory mucosal disease and sinusitis. The Veteran testified before the Board in June 2021 that he was diagnosed with chronic sinusitis in April 2014 and his sinus condition continued to impact him on a daily basis. Reviewing the evidence of record in a light most favorable to the Veteran, the Board establishes that the Veteran was diagnosed with chronic sinusitis. Additionally, the Veteran's military personnel records show the Veteran served a qualifying period of active duty in Kuwait and Iraq during the Persian Gulf War. As the record shows the Veteran's claim for entitlement to service connection for sinusitis was pending before the Board on August 5, 2021, presumptive service connection applies. 86 Fed. Reg. 42,724 (August 5, 2021). Accordingly, the Board finds the evidence of record weighs in favor of entitlement to service connection for the Veteran's sinusitis, and the benefit of the doubt doctrine applies. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to an initial disability rating in excess of 10 percent for low back disability is remanded. The Veteran contends that the symptoms of his low back disability, diagnosed as lumbar spondylosis, warrant a higher evaluation than what is currently assigned. Notably, the Veteran contends that his symptoms of low back pain have not been properly considered. In the June 2021 Board hearing, the Veteran contended that his low back disability symptoms have increased in severity. Additionally, in a June 2021 private medical opinion, submitted by the Veteran, the Veteran's treating physician stated the Veteran's increased lower back stenosis and radiating pains down his legs are most likely caused by his diagnosis of ankylosing spondylitis on multiple locations of the spine. Moreover, the Board notes the Veteran's private orthopedic treatment records from September 2018 noted the Veteran's diagnosis of radiculopathy associated with the lumbosacral region. The Veteran's private treatment records reported the Veteran's gait was antalgic upon examination, and the Veteran demonstrated a positive straight leg raise test for his left leg. The Board notes that generally a new VA examination is not warranted based on the mere passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). However, given the Veteran's lay evidence of worsening symptomatology of both his lumbar back disability and potential left lower extremity radiculopathy, the Board finds a remand for a VA examination is warranted to address the severity of the Veteran's condition. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Further, the Board notes, on the April 2018 VA examination, the Veteran reported flare-ups of his back disability consisting of periods of severe pain, rated 10 out of 10, which occurred when bending. The Veteran noted his back would become locked in a bending position and he was unable to move. VA must consider an evaluation based on ankylosis if the evidence of record shows limitation of motion that is the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, upon remand, VA shall provide evaluation considering the Veteran's flare-ups and the reported functional impairment as it approximates ankylosis of the spine. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriately qualified examiner to address the Veteran's service-connected lumbar disability. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. Notably, the VA examiner must address the Veteran's diagnosed radiculopathy and associated objective neurologic abnormalities, including, but not limited to, radiating pain, numbness, and paresthesias affecting the Veteran's lower extremities. For the purposes of this examination, the examiner must provide an evaluation of the Veteran's account of locking of his back during flare-ups, as reported in the April 2018 VA examination, in terms of functional impairment equivalent to ankylosis. The examiner should provide a full description of the Veteran's low back disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the appropriate rating criteria. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, Associate 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.