Citation Nr: 21067156 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-50 252 DATE: November 3, 2021 ORDER Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for sinusitis is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a respiratory disorder other than allergic rhinitis and sinusitis, to include pharyngitis, is remanded. FINDING OF FACT The Veteran's rhinitis and sinusitis are presumptively due to exposure to particulate matter while serving in the Southwest Asia theater of operations. CONCLUSIONS OF LAW 1. The criteria for entitlement to presumptive service connection for rhinitis are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309, 3.317, 3.320. 2. The criteria for entitlement to presumptive service connection for sinusitis are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309, 3.317, 3.320. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had verified periods of active duty in the United States Army from February 1994 to July 1994, September 2004 to January 2006, and from February 2008 to December 2008, including service in Southwest Asia and additional National Guard service. His decorations include the Iraq Campaign Medal, Global War on Terrorism Expeditionary Medal, and an Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran and his mother testified during a Board hearing before the undersigned Veterans Law Judge. The Board remanded the appeal in March 2021. 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; 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) 1. Entitlement to service connection for allergic rhinitis is granted. 2. Entitlement to service connection for sinusitis is granted. A "Persian Gulf Veteran" is a veteran with active service in the Southwest Asia theater of operations during the Persian Gulf War, which includes Iraq. 38 C.F.R. § 3.317(e)(1)-(2). Effective August 5, 2021,VA has established presumptive service connection for asthma, rhinitis, and sinusitis for veterans with service in the Southwest Asia theater of operations during the Persian Gulf War. See 86 Fed. Reg. 42724-33 (Aug. 5, 2021). Specifically, VA will presume exposure to fine particulate matter for Gulf War veterans deployed in the Southwest Asia theater of operations, including Iraq, regardless of length of deployment. 38 C.F.R. § 3.320(a)(3), (a)(4). VA will also presume service connection for asthma, rhinitis, and sinusitis as long as such conditions manifested to any degree (including noncompensable) within 10 years after separation from the last period of service that includes a qualifying period of service. 38 C.F.R. § 3.320(a)(1). The conditions shall not be presumed service connected if there is affirmative evidence that: (1) the disease was not incurred during or aggravated by a qualifying period of service; or (2) the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) the disease is the result of the veteran's own willful misconduct. 38 C.F.R. § 3.320(b). Here, the Veteran served in Iraq, which is part of the Southwest Asia theater of operations, as defined in 38 C.F.R. § 3.317(e)(2), during the Persian Gulf War as defined in 38 C.F.R. § 3.2(i). See DD Form 214. Thus, he is presumed to have been exposed to particulate matter. Additionally, the Veteran has a current diagnosis of allergic rhinitis that manifest within 10 years of his 2005 and 2008 deployments to Iraq. See December 2013 VA examination report; May 2007 and June 2013 VA treatment records. Moreover, the Veteran was diagnosed with sinusitis in August 2007, within 10 years of his 2005 deployment, reported frequent sinus infections during an October 2007 VA examination, and reported in a June 2013 ER visit that he has "chronic sinusitis." Additionally, his VA treatment records indicate that he is prescribed a nasal rinse for sinus symptomatology. See August 2018 VA treatment record. Notably, sinusitis is defined as inflammation of a sinus cavity. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1824 (32nd ed. 2012) ("Dorland's"). The Board finds that the Veteran is competent to report recurrent sinus symptomatology, and a nurse practitioner confirmed a diagnosis of sinusitis based on the same, which was treated by antibiotics. In this regard, the Board acknowledges the opinion of the May 2021 VA examiner, who determined that the Veteran does not have a current diagnosis of sinusitis; however, the examiner based this conclusion solely on the above-referenced June 2013 ER visit; critically, the examiner did not consider the nurse practitioner's diagnosis treated with antibiotics and the Veteran's prescription for a nasal rinse. Accordingly, the opinion of the May 2021 VA examiner is on no probative value, and the Board concedes current sinusitis. Finally, there is no evidence that rhinitis or sinusitis were caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease. In this regard, the Veteran reported a history of smoking cigarettes. See December 2013 VA examination. Notably, the December 2013 and May 2021 VA examiners did not attribute the Veteran's rhinitis to smoking, though noting his smoking status, and there is thus no indication of an intercurrent cause or willful misconduct as the source of the Veteran's rhinitis or sinusitis. Finally, while that May 2021 examiner's opinion was unfavorable on the matter of nexus in relation to rhinitis, that opinion is inadequate, as it is not based on an accurate factual premise, with the examiner noting the Veteran experienced symptoms before deployment, as early as 2007; however, the Veteran had two deployments, with the first occurring in 2005; thus the opinion is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). In this regard, the Board emphasizes that a nexus opinion is not needed in this case, as presumptive service connection is warranted based on particulate matter exposure in service. Accordingly, for reasons and bases outlined above, the benefits sought on appeal are granted. REASONS FOR REMAND 3. Entitlement to service connection for obstructive sleep apnea is remanded. Although the Board regrets the additional delay, a remand is again required, as the May 2021 medical opinion in is inadequate. Specifically, the examiner failed to address the relevant lay statements, secondary service connection by aggravation, and an article submission, as specifically requested in the March 2021 Board remand. In this regard, noting review of the article without discussing it will not suffice. Accordingly, based on lack of compliance with the prior remand directives, an addendum opinion is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Board notes that as the Veteran has been granted service connection for allergic rhinitis and sinusitis, this raises the theory of service connection on a secondary basis, which should be addressed on remand as well. Additionally, the VA examiner's findings raises the possibility of obesity as an intermediate step between the Veteran's orthopedic disabilities and his obstructive sleep apnea, which should also be addressed. 4. Entitlement to service connection for a respiratory disorder other than allergic rhinitis and sinusitis is remanded. Although the Board regrets the additional delay, a remand is again required, as the May 2021 medical opinion in is inadequate. Specifically, the examiner failed to address the above-referenced article and diagnosed pharyngitis, as specifically requested in the March 2021 Board remand. Accordingly, based on lack of compliance with the prior remand directives, an addendum opinion is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner other than the May 2021 VA examiner to determine the nature and etiology of the Veteran's obstructive sleep apnea. The claims file should be made available to and reviewed by the examiner: Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) the Veteran's obstructive sleep apnea: (a.) had its onset in service or is otherwise related to service from September 2004 to January 2006, to include as a result of presumed environmental exposures in Southwest Asia therein. In addressing this question please discuss: (1) the Veteran's statement that before he got deployed he did not have any sleep problems at all, and then after his deployment he developed symptoms of sleep apnea that have persisted to the present (See Board Hearing Transcript (Tr.) at 9); (2) the Veteran's mother's testimony and lay statement that following his second deployment the Veteran (see September 2017 statement from D.K. and Board Hearing Tr. at 3) would fall asleep during the day because of his difficulty with sleeping at night and would snore loudly; (3) the February 2020 statements from fellow servicemember K.V. and M.N. noting that during deployment the Veteran would "snore obsessively and would wake up in the middle of the night numerous times. It was sporadic and varied in intensity throughout the night," and that following deployment the Veteran was sleep deprived; (4) the Veteran's testimony that his military occupational specialty directed him to frequently be around burn pits in which he had to check on the pits to make sure they were not burning at certain hours (Id.); (5) the Veteran's statement that "we were burning things from gas cans, diesel cans, to mattresses, to tires, to whatever you want to call it. So[,] we had to take it down there and, you know, burn them" (Id. at 7) and (6) the article "New research links Iraq dust to ill soldiers" submitted by the Veteran in March 2020. In addressing this question, the examiner must assume items (a)(1) - (a)(5) as true, even despite the absence of "objective documentation," and determine whether a nexus between the Veteran's obstructive sleep apnea and service is medically consistent with the same. (b.) was aggravated (worsened beyond natural progression) by his period of service from February to December 2008? Please address the September 2008 VA treatment record noted 4-5 hours of "restless" sleep per night, with the Veteran "waking up often and feeling lethargic throughout the day." (c.) is proximately due to his PTSD, rhinitis and/or sinusitis; or (d.) has been aggravated (worsened beyond natural progression) by his PTSD, rhinitis and/or sinusitis. (e.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected orthopedic disabilities caused him to become obese? (f.) If so, is it at least as likely as not that his sleep apnea would not have occurred but for obesity caused by the service-connected (or service-related) disability? In addressing questions (c) and (d), please render two separate opinions for each disability, and please address the Veteran's testimony that he does not get full relief from his C-PAP machine and that his sleep apnea is impacted by his panic attacks (see Board Hearing Tr. at 13). The examiner is also advised that it is not necessary for the evidence to demonstrate that sleep apnea existed during military service in order for it to be considered due to or aggravated by PTSD, rhinitis or sinusitis for VA purposes. Moreover, it is not necessary that PTSD, rhinitis or sinusitis be service-connected, or even diagnosed, at the time sleep apnea is incurred, and reliance on this temporal element in support of a negative opinion will render it inadequate. 2. Then obtain an addendum opinion from an examiner other than the May 2021 VA examiner regarding the nature and etiology of his respiratory disorder other than rhinitis and sinusitis. Following a review of the claims file, the examiner is asked to address the following: (a). Please diagnose all respiratory disorders present since October 2012 other than rhinitis and sinusitis, even if subsequently resolved, to include strep pharyngitis. (b). For each disorder diagnosed in sub-part (a) above, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is etiologically related to or had their onset in or are otherwise related to service from September 2004 to January 2006, to include as a result of presumed environmental exposures in Southwest Asia therein. In addressing this question please discuss: (1) the Veteran's testimony that he first started noticing respiratory issues after his deployment (See March Board Hearing Transcript at 4); (2) the Veteran's testimony that his military occupational specialty directed him to frequently be around burn pits in which he had to check on the pits to make sure they were not burning at certain hours (Id.); (3) the Veteran's statement that "we were burning things from gas cans, diesel cans, to mattresses, to tires, to whatever you want to call it. So[,] we had to take it down there and, you know, burn them" (Id. at 7); (4) the Veteran's statement of heavy smoke from the burning pits that would come over the sleeping areas and he would have soot and other environmental debris inside of his tent (Id.); (5) the article "New research links Iraq dust to ill soldiers" submitted by the Veteran in March 2020 and (f) the impact, if any, of the Veteran's smoking. In addressing this question, the examiner must assume items (b)(1) (b)(4) as true, even despite the absence of "objective documentation," and determine whether a nexus to service is "medically plausible" based on the same. (c). Please opine as to whether the Veteran's respiratory disorder, to include strep pharyngitis: i. is proximately due to his PTSD, rhinitis and/or sinusitis; or ii. has been aggravated (worsened beyond natural progression) by his PTSD, rhinitis and/or sinusitis. The examiner is also advised that it is not necessary for the evidence to demonstrate that the respiratory disorder existed during military service in order for it to be considered due to or aggravated by PTSD, rhinitis or sinusitis for VA purposes. Moreover, it is not necessary that PTSD and/or rhinitis be service-connected, or even diagnosed, at the time the respiratory disorder is incurred, and reliance on this temporal element in support of a negative opinion will render it inadequate. The examiner must provide a complete rationale for any conclusions reached. If unable to opine without speculation, please provide a basis for this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.