Citation Nr: 21072583 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-49 212 DATE: December 3, 2021 ORDER The appeal seeking to reopen a claim for entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to service connection for asthma is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. In a May 2013 rating decision, the service connection for a lumbar spine disability was denied because the evidence of record did not show the Veteran's low back disability either occurred in or was caused by service. That decision was confirmed and continued in a July 2014 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 2. The evidence added to the record since the July 2014 rating decision relates to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability. 3. Resolving doubt in the Veteran's favor, his GERD had its onset during a period of active military service. 4. The Veteran's asthma is etiologically related to his active service, to include his environmental hazard exposure while serving in Southwest Asia. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for entitlement to service connection for gastroesophageal reflux disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for asthma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to July 1991, November 1996 to February 2002, and from January 2003 to January 2005. Military personnel records reflect that he served in Southwest Asia from October 1990 to April 1991. Therefore, exposure to environmental hazards in the Gulf War is conceded. In February 2021, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. 1. The appeal seeking to reopen a claim for entitlement to service connection for a lumbar spine disability The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection for a lumbar spine disability. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that it has and will reopen the claim. The claim was initially denied in a May 2013 rating decision because the evidence of record did not show the Veteran's low back disability either occurred in or was caused by service. That decision was confirmed and continued in a July 2014 rating decision. The Veteran did not perfect an appeal of either decision or submit new and material evidence within one year; the denials of service connection became final. Evidence received since the last final rating decision includes Board testimony from the Veteran asserting that he developed back problems during service due to his duties that involved carrying heavy equipment. Additionally, the Veteran submitted three buddy statements from fellow service members recounting the Veteran's problems with back pain during service. As service connection for the Veteran's claim was initially denied because the evidence of record failed to establish a nexus between his claimed back disability to active duty service, the Veteran's statements coupled with the statements of his fellow service members raise a potential causal link between his diagnosed lumbar spine disability and his duties during active service. The details provided in the Board testimony and the submitted buddy statements were not of record at the time of the initial denials of service connection. As such, the Veteran's Board testimony and statements from his fellow service members satisfy the low threshold requirement for new and material evidence. Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for a lumbar spine disability has been received, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. Service connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). 2. Entitlement to service connection for GERD The Veteran contends that his GERD had its onset during military service. The Board concludes that the Veteran has a current disability of GERD 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). An October 2015 VA examination show the Veteran has a current diagnosis of GERD. The Veteran testified that he self-treated his symptoms during active service by drinking water or sports drinks until the symptoms dissipated. The evidence against the claim includes a December 2015 VA examiner's opinion in which she concluded that the Veteran's GERD was less likely than not due to exposure to environmental hazards in service. However the examiner's opinion is inadequate to adjudicate the claim because the examiner failed to explain her conclusion in light of the Veteran's competent and credible reports of in-service symptoms that have continued to the present day. The evidence in favor of the claim includes an October 2015 VA contract examiner's opinion concluding the Veteran's GERD at least likely as not was incurred in or caused by his claimed in-service injury, event or illness. In support of this conclusion, the examiner noted that treatment records dated in August 2015 showed the Veteran had a history of GERD. Considering the Veteran recently separated from service, the examiner concluded it was reasonable to attribute the Veteran's current GERD to complaints he had during service, which appear to have begun in 1991. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current GERD arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for GERD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for asthma The Veteran contends that he developed asthma as a result of conceded exposure to various environmental toxins while serving in Southwest Asia. The Board concludes that the Veteran has a current disability of asthma that developed as a result of in-service exposure to environmental toxins while stationed in Southwest Asia. 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). The Veteran testified at his Board hearing that he was exposed to burning oil fields during active service and used an inhaler to manage his asthma symptoms. Service treatment records include a November 2001 Report of Medical History in which the Veteran reported a history of asthma and breathing problems. In October 2015, the Veteran underwent a VA examination in which he was diagnosed with asthma. The examiner concluded following a review of the claims folder that the Veteran's lung condition at least as likely as not was incurred in or caused by the claimed in-service injury. In support of this conclusion, the examiner noted that the Veteran complained of lung symptoms and problems while in the military as early as 1994. The examiner also noted the Veteran's reports of having lung symptoms for many months prior to discharge. And the examiner noted the Veteran's history of exposure to burn pits during service in Southwest Asia. In December 2015, a VA examiner concluded that it was less likely than not that the Veteran's asthma was incurred in or caused by the claimed in-service injury, event or illness. In support of this conclusion, the examiner stated that the Veteran's "asthma would have presented more proximately to his service in Kuwait and Saudi Arabia, when he was exposed to smoke and soot from oil fires for several months." However, the examiner failed to explain why the passage of time between the Veteran's in-service exposure to environmental toxins and the development of his diagnosed asthma weighed against there being a positive causal relationship. As such, the opinion is inadequate for the Board to adjudicate the claim. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's diagnosed asthma arose as a result of in-service exposure to environmental toxins while stationed in Southwest Asia. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for is warranted. The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. Having reopened the above claim, remand is needed to afford the Veteran a VA examination with opinion on this issue. 38 C.F.R. § 3.159 (c)(4). 2. Entitlement to service connection for sinusitis is remanded. The Veteran testified at his Board hearing that he was treated for sinus symptoms both during active service and in the years following service. His service treatment records include a January 1989 record documenting his complaints of cold and sinus problems for three days. In October 2015, he underwent a VA examination in which the examiner noted that the Veteran "still has multiple sinus infections every year." However, the examiner then stated without further explanation later in the examination report that "there is no diagnosis because the condition has resolved." The examiner then provided a negative nexus opinion based on the finding that the Veteran's sinusitis had resolved but without explaining the contradictory statements in the examination report regarding the Veteran's history of sinus symptoms. Remand is therefore needed to afford the Veteran a new VA examination with opinion on this issue. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any diagnosed lumbar spine disorder. Copies of all pertinent records must be made available to the examiner for review. The examiner must opine whether any diagnosed condition is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's reports of carrying heavy equipment during service. 2. Schedule the Veteran for an examination by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any diagnosed sinus condition, to include sinusitis. Copies of all pertinent records must be made available to the examiner for review. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service sinus treatment. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.