Citation Nr: 21071959 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 20-19 199 DATE: December 1, 2021 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for gastroenteritis is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder (claimed as adjustment disorder) is remanded. FINDING OF FACT 1. The Veteran's sinusitis is related to his military service. 2. The Veteran does not have a current diagnosis of gastroenteritis CONCLUSION OF LAW 1. The criteria for service connection for sinusitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for gastroenteritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1979 to November 1993 and reserve serve until 2003. However, the exact dates of the Veteran's reserve service is unknown. This matter comes before the Board of Veterans' Appeals (Board) from the October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for sinusitis is granted. The Veteran contends that his sinusitis is related to his military service. Specifically, the Veteran alleges that while he was stationed in Japan, the exposure from continuous ash caused his sinus issues and that he has had them ever since his military service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A service medical record entry dated in April 1993 noted that he complained of having sinus problems. The diagnoses were upper respiratory infection and sinusitis. He was prescribed an antibiotic. A dental questionnaire dated September 1993 on which he reported a history of having sinus problems. The Veteran's service treatment records include a report of medical history dated in February 2003 which reflects that he reported having seasonal sinusitis. VA treatment records show the Veteran has a current diagnosis of sinusitis. During service, the Veteran was seen for complaints of sinus issues multiple times. Thus, the question becomes whether the current disability is related to service. In September 2017, the Veteran underwent a VA sinusitis and rhinitis examination. Although the examiner stated that the Veteran is only diagnosed with rhinitis, the examination report later notes that the Veteran is also diagnosed with sinusitis. Additionally, the examiner opined that the Veteran is diagnosed with sinusitis with allergic or vasomotor rhinitis that is at least as likely as not related to his military service. The Board notes that in October 2017, the Agency of Original Jurisdiction (AOJ) granted service connection for allergic rhinitis and denied service connection for sinusitis. The Board notes that clinical evidence reflects that sinusitis and rhinitis have been diagnosed both separately and in tandem on several occasions during the appeal. VA's Schedule for Rating Disabilities considers allergic rhinitis and sinusitis as separate disabilities for rating purposes. See 38 C.F.R. § 4.97, Diagnostic Codes 6510-14 (sinusitis) and Diagnostic Code 6522 (allergic or vasomotor rhinitis). If co-existing, separate disability ratings may be assigned for both disorders. 38 C.F.R. § 4.96 (a). Therefore, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current sinusitis arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sinusitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for gastroenteritis is denied. The Veteran contends that his gastroenteritis is related to his military service. During his military service, the Veteran complained of stomach issues and was diagnosed with gastroenteritis in service in 1981. Additionally, at the Veteran's March 2020 decision review officer hearing, the Veteran testified that his gastrointestinal issues began during his military service and have continued ever since. 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 question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of gastroenteritis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In September 2017, the Veteran underwent a VA examination. The examiner stated that the Veteran is not currently diagnosed with a stomach or duodenum condition. The examiner stated that gastroenteritis was less likely than not caused by his military service. The examiner stated that there are no in service records that indicate a gastroenteritis injury, event, or occurrence. Additionally, the examiner stated that the Veteran's physical examination are not suggestive of the claimed condition. The Board acknowledges that the VA examiner's statements that there are no in service records indicating a gastroenteritis event is in error as the Veteran was diagnosed with gastroenteritis in 1981. However, the Veteran's medical records throughout the appeal period do not indicate that the Veteran is diagnosed with gastroenteritis or any gastrointestinal disability. While the Veteran believes he has a current diagnosis of gastroenteritis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, the Board finds that entitlement to service connection for gastroenteritis is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is related to his military service. The Board notes that there are several notations of elevated blood pressure and a diagnosis of hypertension during the Veteran's reserve service. However, it is unclear what years the Veteran was on ACDUTRA and INACDUTRA and whether the Veteran's hypertension diagnosis occurred during one of these dates. Additionally, the Veteran did not undergo a VA examination to determine the etiology of his hypertension. Therefore, the Board cannot make a fully-informed decision on the issue of entitlement to hypertension because no VA examiner has opined whether or not this condition is related to his military service. Therefore, on remand, attempts to obtain the Veteran's personnel files to verify his ACDUTRA/INACDUTRA service dates and to schedule the Veteran for a VA examination should occur. 2. Entitlement to service connection for an acquired psychiatric disorder (claimed as adjustment disorder) is remanded. The Veteran contends that his acquired psychiatric disorder is related to his military service. Specifically, the Veteran has stated throughout the record that during his military service he was sexually assaulted. The Board notes that at the Veteran's September 2017 VA examination, it was noted that the Veteran is diagnosed with unspecified depressive disorder. The examiner opined that the Veteran reported depression since he was a child and that is was exacerbated in 2000 when his father died. Additionally, the examiner stated that the Veteran did not report that his depression was caused by his military service. However, the Veteran submitted a February 2020 private psychological evaluation in which the physician stated that the Veteran refuted the September 2017 statement that his depression preexisted his military service. The Board notes that the Veteran's military entrance examination does not document any acquired psychiatric disorders. Therefore, the Board finds that there is no evidence to indicate that the Veteran's depression preexisted his service. The February 2020 private evaluation stated that it is at least as likely as not that the Veteran's major depressive disorder was solely caused by trauma the Veteran experienced during his military service, including his personal assault. However, the Board finds that additional information, specifically the Veteran's personnel records must be obtained to verify the Veteran's alleged in-service stressor. While the record shows the Veteran was provided general notice as to how to substantiate a claim for service connection, he was not provided with specific notice as to how to substantiate his claim of in-service military sexual assault. On remand, the Agency of Original Jurisdiction should issue notice to the Veteran explaining the evidence necessary to corroborate a stressor during service to support his claim for an acquired psychiatric disorder due to military sexual trauma (MST), pursuant to 38 C.F.R. § 3.304 (f)(5). Additionally, the Veteran should be afforded another VA examination to determine whether his acquired psychiatric disorder is due to MST, and to determine whether any additional psychiatric diagnoses are related to active service. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice as to his claim of entitlement to service connection for any acquired psychiatric disorders, to include depression, based on MST under the provisions of 38 C.F.R. § 3.304(f)(5). 2. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service on active duty and in the Marine Reserve. Verify all active duty for training and inactive duty training dates for alleged service in the Marine from November 1993 until 2003. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's hypertension. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is related to an in-service injury, event, or disease, including his diagnosis that appeared to occur during his reserve service. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include major depressive disorder. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder is related to an in-service injury, event, or disease, including his alleged in-service personal assault. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. (Continued on the next page) 5. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.