Citation Nr: 21071471 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-43 117 DATE: November 30, 2021 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for mixed rhinitis is granted. Entitlement to service connection for asthma is granted. FINDINGS OF FACT 1. The Veteran is a Persian Gulf War Veteran and was exposed to particulate matter. 2. The Veteran's sinusitis, mixed rhinitis, and asthma disabilities are related to her active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sinusitis disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.317. 2. The criteria for entitlement to service connection for a rhinitis disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.317. 3. The criteria for entitlement to service connection for an asthma disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy, on active duty from February 1994 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations (Southwest Asia) during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness that are defined by a cluster of signs or symptoms such as: (a) chronic fatigue syndrome, (b) fibromyalgia, (c) irritable bowel syndrome, or (d) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. In August 2021, the VA issued interim final rule to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, and sinusitis, to include rhinosinusitis, in association with presumed exposures to fine, particulate matter (to include fuel, aircraft exhaust, and other mechanical fumes). See Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42724 (Aug. 5, 2021) (to be codified at 38 C.F.R. § pt. 3). 1. Entitlement to service connection for sinusitis 2. Entitlement to service connection for rhinitis 3. Entitlement to service connection for asthma The Veteran asserts that her diagnosed sinusitis, rhinitis and asthma are related to service. For the reasons below, the Board finds that service connection for these disabilities is warranted. As an initial matter, the Board observes the Veteran has been diagnosed with sinusitis, rhinitis and asthma. Specifically, at her May 2018 VA examinations, the VA examiner noted a diagnosis of sinusitis in 2007, and diagnoses of rhinitis and asthma in 2013. Thus, current disabilities are conceded. Next, the Veteran is considered a Persian Gulf War veteran; thus, the provisions of 38 C.F.R. § 3.317 apply. The record shows the Veteran separated from service in February 1998. Her service included ensuring military readiness on USS EISENHOWER in 1995, and USS ROOSEVELT in 1997 deployed to Southwest Asia. She noted in her June 2016 notice of disagreement, that her deployment was to the United Arab Emirates. She is in receipt of the Southwest Asia Service Medal. As diagnoses of sinusitis, rhinitis and asthma are of record, and she served in Southwest Asia, service connection on a presumptive basis is warranted. See Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42724 (Aug. 5, 2021) (to be codified at 38 C.F.R. § pt. 3). As an aside, the Board acknowledges the Veteran's theory of entitlement on a direct basis. Of note, her service treatment records include her January 1998 separation examination, in which she reports ear, nose and throat trouble. Further, she checks "Don't Know" to the issues of asthma and shortness of breath. Finally, she testified at her July 2021 Board hearing that these issues began during service and have continued since. Based on the foregoing, the Board finds that service connection should be granted on a presumptive basis. The Board acknowledges the negative opinions of the May 2018 VA examiner with regards to sinusitis, rhinitis and asthma. However, these negative opinions largely rely on the observation that there are little to no complaints of an in-service event or injury. Here, VA has conceded that veterans who served in Southwest Asia are presumed to have been exposed to particulate matter, qualifying as an in-service event. Therefore, as the VA opinions of record are based solely on the lack of medical records showing in-service diagnoses or treatment, the Board finds them to be of no probative value. In sum, service connection for the Veteran's sinusitis, rhinitis and asthma, is warranted. The claims are granted. 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald