Citation Nr: 21071876 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-08 963A DATE: December 1, 2021 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for allergic rhinitis (claimed as general allergies) is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (claimed as sleep problems), to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for breathing problems, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for functional dyspepsia, to include as secondary to the service-connected irritable bowel syndrome, functional abdominal pain syndrome, and functional gastrointestinal disorders, and to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran's sinusitis was caused by his exposure to particulate matter while serving in Southwest Asia during the Persian Gulf War. 2. The Veteran's allergic rhinitis was caused by his exposure to particulate matter while serving in Southwest Asia during the Persian Gulf War. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 86 Fed. Reg. 42,724 (Aug. 5, 2021) (to be codified at 38 C.F.R. § 3.320). 2. The criteria for service connection for allergic rhinitis (claimed as general allergies) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 86 Fed. Reg. 42,724 (Aug. 5, 2021) (to be codified at 38 C.F.R. § 3.320). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active military service from July 1989 to July 1994. He served in Southwest Asia during the Persian Gulf War. These issues are on appeal from March 2009 and July 2013 rating decisions. In April 2011 and February 2019, the Board of Veterans' Appeals (Board) remanded these issues for further development. In February 2019, the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder. This issue was granted in a June 2020 rating decision. The Veteran did not appeal the issue, and it is no longer on appeal before the Board. Subsequent to the June 2020 Supplemental Statement of the Case, the Agency of Original Jurisdiction (AOJ) added pertinent VA treatment records to the Veteran's claims file. This evidence was not reviewed by the AOJ in the first instance. However, in August 2021, the Veteran waived AOJ initial review of this new evidence. 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for allergic rhinitis (claimed as general allergies). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran served in Southwest Asia during the Persian Gulf War. Veterans who served in 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) are presumed to have been exposed to fine particulate matter. He has current diagnoses of sinusitis and allergic rhinitis, as noted in the December 2019 VA examination report. Effective August 5, 2021, sinusitis and rhinitis are presumptively serviceconnected for Persian Gulf veterans who were exposed to particulate matter. 86 Fed. Reg. 42,724, 42,732 (to be codified at 38 C.F.R. § 3.320). Accordingly, service connection for sinusitis and allergic rhinitis is granted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (claimed as sleep problems), to include as secondary to the service-connected PTSD, is remanded. In the June 2021 Informal Hearing Presentation, the Veteran's representative cited medical literature to support the relationship between obstructive sleep apnea and PTSD. At the December 2019 VA examination, the Veteran was diagnosed with obstructive sleep apnea. The Veteran is currently service connected for PTSD. To date, a VA medical opinion has not been provided addressing the relationship between the Veteran's obstructive sleep apnea and his service-connected PTSD. Also, there has not been substantial compliance with the Board's previous remand directives regarding this issue. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this claim for a VA examination and medical opinion to be obtained. Upon remand, the December 2019 VA examiner provided a negative nexus opinion based, in pertinent part, on the fact that there was no evidence of a diagnosis or treatment for sleep apnea in service. In forming the opinion, the examiner did not address the April 2019 statements from the Veteran's ex-girlfriend and buddy, who describe the Veteran's in-service sleep problems. Upon remand a VA medical opinion must be obtained. 2. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding this issue. The Board remanded this claim for a VA examination and medical opinion to be obtained. Upon remand, the Veteran did not have a current diagnosis of chronic fatigue syndrome at the December 2019 VA examination. The VA examiner provided a negative nexus opinion in December 2019, reasoning that the Veteran did not have any subjective or objective evidence of a chronic fatigue condition. However, at the December 2019 examination, the Veteran reported chronic exhausation and grogginess for years. A lay statement from a fellow solider documents the Veteran's fatigue both in service and since service. Thus, the Board finds the December 2019 VA medical opinion to be inadequate. Another remand is required for a VA medical opinion to be obtained. Stegall, 11 Vet. App. at 271. 3. Entitlement to service connection for breathing problems, to include as due to an undiagnosed illness, is remanded. 4. Entitlement to service connection for functional dyspepsia, to include as secondary to the service-connected irritable bowel syndrome, functional abdominal pain syndrome, and functional gastrointestinal disorders, and to include as due to an undiagnosed illness, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the breathing problems and functional dyspepsia issues. The Board remanded these claims for VA examinations and medical opinions to be obtained. Upon remand, the Veteran did not have current diagnoses related to these symptoms at the December 2019 VA Esophageal Conditions and VA Respiratory Conditions examinations. However, the VA examiner then opined at the December 2019 Gulf War General Medical Examination that there were no diagnosed illnesses for which no etiology was established, to include respiratory conditions and esophageal disorders. The examiner did not provide a medical opinion addressing undiagnosed illness and/or medically unexplained chronic multisymptom illness. Another remand is required for a VA medical opinion to be obtained. Stegall, 11 Vet. App. at 271. 5. Entitlement to service connection for migraine headaches is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding this issue. The Board remanded this claim for a VA examination and medical opinion to be obtained. Upon remand, the December 2019 and July 2020 VA examiners provided negative nexus opinions. However, neither examiner addressed the April 2019 statement from the Veteran's ex-girlfriend who described the Veteran's in-service headaches. Chronic presumptive medical opinions were not provided, and neither examiner addressed whether the Veteran's headaches were caused by environmental hazards from his service in Southwest Asia during the Persian Gulf War. Another remand is required for a VA medical opinion to be obtained. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's current obstructive sleep apnea. The examiner is asked to provide a response to the following: (i) Is the Veteran's obstructive sleep apnea at least as likely as not related to his service, including environmental hazards from his service in Southwest Asia during the Persian Gulf War? In forming the opinion, the examiner must address the April 2019 statements from the Veteran's ex-girlfriend and buddy, who describe the Veteran's sleep problems in service. In providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (ii) Is the obstructive sleep apnea at least as likely as not proximately due to the service-connected PTSD? (iii) Is the obstructive sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected PTSD? Provide a rationale to support the opinions. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's current symptoms of chronic fatigue, breathing problems, and functional dyspepsia. The examiner is asked to provide a response to the following: (i) Do these symptoms represent an objective indication of a chronic disability resulting from an undiagnosed illness related to the Veteran's service in the Southwest Asia theater of operations? (ii) Do these symptoms represent an objective indication of a chronic disability resulting from a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms related to the Veteran's service in the Southwest Asia theater of operations? (iii) Is the functional dyspepsia at least as likely as not proximately due to the service-connected irritable bowel syndrome, functional abdominal pain syndrome, and functional gastrointestinal disorders? (iv) Is the functional dyspepsia at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected irritable bowel syndrome, functional abdominal pain syndrome, and functional gastrointestinal disorders? Provide a rationale to support the opinions. The examiner must consider the lay statements from the Veteran and the April 2019 lay statements from the Veteran's ex-girlfriend and fellow solider. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's currently diagnosed migraine headaches. The examiner is asked to provide a response to the following: (i) Are the Veteran's migraine headaches at least as likely as not related to his service, including environmental hazards from his service in Southwest Asia during the Persian Gulf War? In forming the opinion, the examiner must address the April 2019 statement from the Veteran's ex-girlfriend who describes the Veteran's sleep problems in service. (ii) Is it at least as likely as not that the migraine headaches (1) began during active service, (2) manifested within one year after discharge from service, or (3) were noted during service with continuity of the same symptomatology since service? In providing the requested opinions, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinions. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.