Citation Nr: 21072585 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-30 929 DATE: December 3, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for allergic rhinitis is reopened. Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for a back disability is remanded. The claim for entitlement for entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. In a final March 1993 rating decision, the RO denied the Veteran's claim for service connection for allergic rhinitis. 2. The evidence received since the March 1993 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claim for service connection for allergic rhinitis. 3. Resolving reasonable doubt in the Veteran's favor, tinnitus and allergic rhinitis were incurred as a result of service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for allergic rhinitis is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1989 to December 1992. New and Material Evidence Claims 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for allergic rhinitis Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In an unappealed March 1993 rating decision, the RO denied service connection for allergic rhinitis because the claimed conditions was not shown to be caused or aggravated by service. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the March 1993 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the prior decision, the record included the service records which documented respiratory complaints, but failed to show treatment for allergic rhinitis. Also of record was a February 1993 VA examination report that document a diagnosis of allergic rhinitis. The evidence received since the March 1993 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. Statements in support of the Veteran's claim, include his assertions that his allergic rhinitis had onset in service as due to exposure to contaminants during his service in the Southwest Theater of Operations during the Persian Gulf War. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet App. at 513. Accordingly, the claim is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multi symptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multi symptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The RO has conceded that the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for allergic rhinitis The Veteran contends that he has allergic rhinitis related to his military service. He has asserted that allergic rhinitis is a presumptive disorder related to his exposures to dust and pollutants during his service during the Persian Gulf War. The service treatment records reflect complaints of respiratory problems. Allergic rhinitis was not noted. After service, on VA examination in February 1993, approximately two months after service discharge, the Veteran was diagnosed with allergic rhinitis. He complained of problems breathing due to allergies. Examination showed his septum was deviated, and his nasal turbinates were covered with mucus, consistent with an allergic type of rhinitis. On VA examination in March 2018, the Veteran reported difficulty breathing out of both nostrils due to allergic rhinitis since 2003. The examiner noted that allergic rhinitis was a disease with a clear and specific etiology and diagnosis, and therefore was less likely than not due to any active duty complaints. The examiner based the opinion on the finding that the Veteran did not report symptoms of allergic rhinitis until 2003, over 10 years after leaving the service. The Veteran credibly reported onset of respiratory problems during service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evidence shows that he was initially diagnosed with allergic rhinitis approximately two months after discharge from active duty. The Board is cognizant that, a VA examiner in March 2018 provided evidence against the claim. However, the VA examiner based the opinion on the finding that the Veteran was not diagnosed with allergic rhinitis until 2003, 10 years after service, when in fact the evidence documented allergic rhinitis on VA examination in February 1993. As allergic rhinitis was diagnosed shortly after service and there is credible lay evidence that the condition may have been symptomatic during service, it is reasonable to conclude that the Veteran's allergic rhinitis initially manifested during service. In resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran's allergic rhinitis had onset during active duty. The Board, thus, finds that service connection for allergic rhinitis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. As service connection is being granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive, or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Service connection for tinnitus The Veteran seeks service connection for tinnitus due to military noise exposure. The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim, and a VA examiner in March 2018 appeared to have found the Veteran's account of current tinnitus credible. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. The Veteran's personnel form DD-214, documents his military occupational specialty (MOS) was armor crewman and he served in the Southwest Asia Theater of operations during the Persian Gulf War RO. Additionally, the personnel records show that the Veteran served as a tank crewman and driver. The Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with his military occupational specialty. Given that the Veteran is competent to report both exposure to military noise and hearing problems thereafter (as these are experiences capable of lay observation, for which no specific expertise is required), and given that the Veteran's reports of incurring this in-service acoustic trauma are consistent with the circumstances of his service, and have remained consistent over time, the Board concludes that his in-service exposure to acoustic trauma is established. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The service treatment records show that the Veteran was routinely exposed to hazardous noise. The records contain no complaints, history or findings consistent with tinnitus. VA treatment records show that in 2017, the Veteran complained of ringing in his ears. He endorsed military noise exposure from tanks, artillery, and gunfire, with hearing protection device use. The Veteran denied civilian occupational or recreational noise exposure. On VA examination in March 2018, the Veteran reported bilateral tinnitus that fluctuated in severity. He was unsure of when tinnitus began. The examiner noted that while there was evidence of military noise exposure, no noise injuries were recorded during service. Additionally, there was no evidence of significant shifts in hearing when comparing his entrance and separation audiograms, which was the gold standard for identifying such noise injuries. As the service treatment records failed to document tinnitus, the examiner opined that the Veteran's tinnitus was less likely than not caused by or the result of military noise exposure. A Veteran is competent to describe observable symptoms such as ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Charles, 16 Vet. App. 370, 374-75 (2002). While the Veteran cannot recall onset of ringing in his ears, he asserts that tinnitus is associated with military noise exposure. Significantly, there is no history of occupational or recreational noise exposure. The Board is cognizant that, the VA examiner provided evidence against the claim. However, because there is a current diagnosis of tinnitus, statements from the Veteran that associate tinnitus with in-service noise exposure, and in-service acoustic trauma has been conceded, the Board finds that the competent and credible assertions from the Veteran provides a nexus linking his current tinnitus to his in-service noise exposure, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran's current tinnitus and active service. Therefore, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. The Veteran's service records reflect that he served in the Southwest Asia Theater of operations during the Persian Gulf War, and the RO conceded a stressful event in service or fear of hostile military or terrorist activity, while serving in Kuwait and/or Saudi Arabia. Service treatment records are entirely negative for complaints, treatment or diagnosis of a psychiatric disorder. After service, VA treatment records after 2012 reflect positive PTSD screen test results. Identified stressors included financial problems and bankruptcy. On VA examination in March 2018, the examiner determined that the Veteran did not meet criteria for PTSD associated with reported in-service stressors. Instead, the examiner diagnosed alcohol use disorder and stimulant use disorder and opined that the conditions were less likely than not related to military service. VA treatment records after 2019 document an assessment of generalized anxiety disorder. Private treatment records from New Leaf Wellness Center documented treatment for PTSD. In a statement in October 2020, a counselor licensed to provide mental health and substance abuse treatment noted a diagnosis of PTSD due to multiple military traumas. As the Veteran has identified outstanding private treatment records relevant to the claim on appeal, specifically, records from New Leaf Wellness Center located in El Paso Texas, on remand these records should be obtained and associated with the claim file. Additionally, as there is conflicting evidence regarding whether the Veteran has (or during the pendency of the claim had) a PTSD diagnosis, an examination to secure an adequate medical opinion that reconciles the conflicting evidence is necessary. 2. Entitlement to service connection for a back disability is remanded. The Veteran seeks service connection for a back disability as due to service. On VA Gulf War General Medical examination in March 2018, the Veteran claimed a back disability. The examiner noted a no history of trauma or a back disability during service and imaging studies failed to document any abnormalities, including arthritis. However, private treatment records from Dr. R. A. at On-Time Radiology after 2020 document degenerative changes of the lumbar spine, to include degenerative disc disease. As the Veteran has identified outstanding private treatment records relevant to the claim on appeal, specifically, records from Dr. R. A., on remand, these records should be obtained and associated with the claim file. While the appeal is in remand status, the Board finds that a new examination should be obtained that addresses the etiology of the currently diagnosed back disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding the threshold for determining whether the evidence indicates the current disability may be related to the in service event is a low one); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding the requirement for a "current disability" is satisfied when a Veteran has a disability at the time a claim for VA compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim). 3. Entitlement for entitlement to service connection for OSA is remanded. The Veteran contends that his OSA initially manifested in service. In the alternative, he argues that his service-connected deviated nasal septum caused or aggravated his OSA. A VA examiner in April 2018, following a review of the claims file, opined that the Veteran's OSA was less likely than not proximately due to or the result of his deviated nasal septum. The examiner noted that the record showed that the Veteran underwent nasal septal repair in 1996. The more likely primary etiology of the sleep apnea appeared to be marked crowding/narrowing of his oropharynx. He underwent tonsillectomy and uvulopalatopharyngoplasty to attempt to correct this, examination of the Veteran showed persistent marked narrowing, with no significant nasal obstruction. The VA examiner failed to address whether the Veteran's OSA was aggravated by his deviated nasal septum, no did the examiner address the Veteran's contention that OSA had onset in service. Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, additional development to obtain adequate medical nexus opinions is necessary. 4. Entitlement to service connection for bilateral plantar fasciitis is remanded. The Veteran seeks service connection for bilateral plantar fascitis as due to service. On a VA examination in March 2018, the examiner determined that there was no evidence of plantar fasciitis in the medical records or on examination. However, VA treatment records in 2018 document a diagnosis of bilateral plantar fasciitis due to the service-connected pes planus and valgus ankle deformities. The Board finds that the theory of secondary service connection has been raised and must be addressed. Presently, there is no nexus opinion of record as to whether the Veteran's bilateral plantar fasciitis has been caused by or aggravated by his service-connected bilateral pes planus. Consequently, remand is necessary to obtain a VA examination addressing the etiology of the Veteran's bilateral plantar fasciitis on both direct and secondary bases. Barr, 21 Vet. App. 303. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the disabilities on appeal, and complete and return an appropriate authorization form for each treatment provider identified. 2. After obtaining the completed release forms, request all identified pertinent medical records, to specifically include records from New Leaf Wellness Center, Sonno Sleep Center, and treatment records from Dr. R. A. at On-Time Radiology, located in El Paso Texas. All development efforts should be associated with the claims file. If the requested records cannot be obtained, the Veteran should be notified of such. If possible, the Veteran should get these records and submit them himself to expedite the case. It would also be of great help to the Board. 3. Obtain any outstanding VA treatment records. 4. Schedule the Veteran for a VA psychiatric disability examination to address his claim for service connection for an acquired psychiatric disorder, to include depressive disorder. The claims file must be provided to the examiner for review in conjunction with the examination. After review of the file and examination of the Veteran, the examiner should offer an opinion as to the following: a) The examiner should identify all psychiatric disorders found to be present, to include generalized anxiety disorder. The examiner should specifically determine if the Veteran meets the diagnostic criteria for PTSD. If PTSD is diagnosed, the examiner should identify the specific stressor or stressors (to include fear of hostile military or terrorist activity) that support that diagnosis. If the Veteran does not meet the criteria for PTSD, the examiner should explicitly discuss which criteria for diagnosis are missing under the DSM criteria. b) Determine whether it is at least as likely as not (a probability of 50 percent or greater) that any current psychiatric disorder had onset during service, or is otherwise related to any aspect of the Veteran's service. The examiner is asked to reconcile the October 2020 medical statement from the New Leaf Wellness Center counselor that determined that the Veteran had PTSD due to service, with the opinion that the examiner ultimately puts forth. All opinions expressed must be accompanied by a complete rationale. The rationale for all opinions rendered must be provided. 5. Schedule the Veteran for a VA examination to determine whether the Veteran's back disability was incurred in service. The claims folder must be made available to the examiner for review before the examination. All indicated tests should be done and all findings must be reported in detail. Following review of the claims file, the examiner is asked to determine whether it is at least as likely as not (50 percent probability or greater) is causally related to active military service, or manifested within one year of discharge therefrom in December 1992. Please explain why or why not. The examiner should consider all evidence, including lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. 6. Schedule the Veteran for a VA examination to determine whether his OSA is related to service or the service-connected deviated nasal septum. The claims folder must be made available to the examiner for review before the examination. All indicated tests should be done and all findings must be reported in detail. Following review of the claims file, the examiner must address the following: a) Determine whether it is at least as likely as not (a probability of 50 percent or greater) that sleep apnea had onset during service from or is otherwise related to any aspect of the Veteran's service. Please explain why or why not. b) If not, determine whether it is at least as likely as not (a probability of 50 percent or greater) that sleep apnea is caused or aggravated by a service-connected disability, to include deviated nasal septum. Please explain why or why not. The examiner should consider all evidence, including lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. 7. Schedule the Veteran for a VA examination to determine whether bilateral plantar fasciitis is related to service or the service-connected bilateral pes planus. The claims folder must be made available to the examiner for review before the examination. All indicated tests should be done and all findings must be reported in detail. Following review of the claims file, the examiner must address the following: a) Is it at least as likely as not (50 percent or greater degree of probability) that bilateral plantar fasciitis any is related to service? b) Is it at least as likely as not (50 percent or greater degree of probability) that bilateral plantar fasciitis was caused or aggravated by the service-connected bilateral pes planus, to include as due to overcompensation and/or an altered gait/or and weight shifting? In providing the above opinions, the examiner should be mindful that even if the previously diagnosed bilateral plantar fasciitis condition resolved, an opinion is still required regarding the etiology of the diagnosed disability. See McClain, supra. The examiner should consider all evidence, including lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.