Citation Nr: 21073969 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 15-40 057 DATE: December 13, 2021 ORDER Entitlement to service connection for sinusitis is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and is presumed to have been exposed to fine particulate matter. 2. The Veteran has a diagnosis of sinusitis, which is a presumed condition for those serving in Southwest Asia during the Persian Gulf War. 3. The Veteran's sinusitis manifested within 10 years following separation. CONCLUSION OF LAW The criteria for entitlement to service connection for sinusitis as due to environmental exposure in Southwest Asia, have been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.2, 3.317, 3.320, Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42,732 (August 5, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1988 to February 1992, to include service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in September 2018 and August 2020. The August 2020 Board remand found that new VA examinations were necessary for the claims of service connection for GERD, vertigo, dizziness, and sinusitis because the previous examinations were inadequate, and that the Veteran should be afforded a VA audiology examination for the claimed tinnitus. The RO issued a supplemental statement of the case in March 2021. The appeal has been returned to the Board for further appellate review. The Veteran contends that his GERD and sinusitis should be service connected because they began during his military service and have continued since separation. The Veteran maintains that his vertigo and dizziness are related to his service in Southwest Asia, to include his exposure to burn pits. He also firmly believes that his tinnitus is related to his military service as it started shortly after his separation from military service. Service Connection Entitlement to service connection for sinusitis The Veteran contends that his sinusitis is due to environmental exposure while stationed in Southwest Asia. Generally, establishing service connection requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Additionally, service connection may also be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability, including 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 21, 2021, 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). In claims based on qualifying chronic disability, 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 (2004). Notably, laypersons are competent to report objective signs of illness. The Board notes that VA issued an interim final rule effective on August 5, 2021 that amended its adjudication regulations under 38 C.F.R. § 3.320 to establish presumptive service connection for three chronic respiratory health conditions (asthma, rhinitis, and sinusitis (to include rhinosinusitis)) in association with exposure to fine particulate matter for Gulf War Veterans who served in Southwest Asia theatre of operations from August 1990 until the present time that manifest to any degree within 10 years from the date of separation. Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42,732 (August 5, 2021). This provision applies to all applications for service connection for asthma, rhinitis, and sinusitis based on Southwest Asia that were pending before VA on or after August 5, 2021. In order for the presumption to apply, the Board must determine whether the Veteran has qualifying service in Southwest Asia and a diagnosis of sinusitis within 10 years from the date of separation. The medical records in the Veteran's case file demonstrate that the Veteran has a current diagnosis of sinusitis. The October 2020 VA sinusitis examination confirmed a diagnosis of chronic sinusitis. Additionally, the Veteran has service in the Southwest Asia theater of operations during the Persian Gulf War. See Military Personnel Record; see also DD Form 214. The Veteran's service treatment records show that he was treated for sinus conditions during his military service in April 1991 and August 1991. The Veteran has reported that he continued to have chronic sinus problems following his separation from military service. The Board notes that records from the Veteran's private physician have been lost for the period of 1993 to 2002. See January 15, 2013 Letter from B.B.B., MD. As such, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Following the gap in medical records from 1993 to 2002, the records in the case file show that the Veteran indeed had complaints of sinus problems. The Veteran has stated that he had continual chronic sinus symptoms since his military service that he treated with over the counter medicine. See April 3, 2019 Correspondence, Pg. 2. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). At the October 2020 VA sinusitis examination, the Veteran reported that he had sinusitis since returning from the Gulf War and that he has sinusitis symptoms every day. Resolving all doubt in the favor of the Veteran, the Board finds that his diagnosed chronic sinusitis manifested within 10 years of his separation from military service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In turn, the Veteran's sinusitis manifested as the result of his presumed particulate exposure during his military service in in the Southwest Asia theater of operations during the Persian Gulf War. Accordingly, service connection for sinusitis is granted. REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Consistent with this, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Per the August 2020 Board remand, the Veteran was afforded a new VA GERD examination in October 2020. The examiner opined that it is less likely than not that the Veteran's GERD incurred in or was caused by military service. The stated rationale of the examiner was that "there is no objective evidence that the service member's GERD incurred or caused by (the) per BVA Remand directive during service. The service member had acute symptoms of gastritis in service. There is no chronicity of symptoms noted. A nexus has not been established." It was also stated that "there is no objective evidence that the service members GERD initially manifested in service or is related to PB pills, anthrax vaccinations, and exposure to toxic smoke in service. The service member had acute symptoms of gastritis in service. There is no chronicity of symptoms noted. A nexus has not been established." Another VA GERD opinion was provided in March 2021. The examiner opined that the GERD was less likely than not incurred in or caused by the Veteran's military service. The rationale provided stated that "the Veteran was not diagnosed with GERD until 2013. During active duty, the Veteran was not seen for GERD. He was seen for an acute viral episode, but no diagnosis of GERD." Each of the opinions provided primarily rely on a lack of evidence. However, a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, the rationales for the opinions were simply conclusory statements and did not provide thorough medical analysis to support the determinations. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). The opinions base the conclusions on a lack of a diagnosis of GERD in service. However, the examiners failed to consider the symptoms the Veteran indicated he had during service and that continued following service. See Layno. It is also noted in an April 2015 medical addendum that the Veteran was treated for h. pylori. The examiner did not discuss whether the h. pylori came from the Veteran's exposures in Southwest Asia, to include burn pits, causing the Veteran's GERD. In fact, the examiners provided no discussion regarding the relationship between the Veteran's GERD and his exposures during his service in Southwest Asia. Therefore, the Board finds that the VA opinions are inadequate because the examiners did not apply valid medical analysis to the significant facts of the particular case. See Nieves-Rodriguez. The Board also notes that the Veteran is service connected for post-traumatic stress disorder (PTSD) and takes multiple medications for PTSD symptoms. Therefore, the possibility that the Veteran's medications for PTSD caused or aggravated his GERD has been raised by the record. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl. Based on the foregoing reasons, further development is warranted. 2. Entitlement to service connection for vertigo is remanded 3. Entitlement to service connection for dizziness is remanded The Veteran was afforded a vertigo and dizziness examination in October 2020. The examiner opined that the Veteran's vertigo and dizziness are less likely than not incurred in or caused by his military service. The examiner's rationale was that "there is no evidence the service member's vertigo is due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness." The examiner also stated that "there is no objective evidence that the service members vertigo incurred in or caused by (the) per BVA Remand directive during service. There is not chronicity of symptoms noted. A nexus has not been established." Another VA vertigo opinion was provided in March 2021. The examiner opined that the Veteran's vertigo is less likely than not incurred in or caused by his military service. The examiner stated that "there is no evidence that the Veteran was seen for or diagnosed with vertigo during active duty. His first documented 'dizziness' episode was in 2012, twenty years after separation." Similar to above, the opinions are based on a lack of evidence which is an insufficient basis upon which to support a lack of nexus between a current disability and military service. See Dalton. The opinions also provided no medical analysis. See Nieves-Rodriguez. Furthermore, the opinions do not address the Veteran's lay statements. See Layno. As such, the Board finds the VA vertigo and dizziness opinions to be inadequate. See Stegall; see also Barr. The Board also notes that in receiving treatment for his PTSD the clinic explained the effects of traumatic stress on the brain, common reactions to trauma, symptoms of PTSD, and evidence-based treatments for PTSD. See December 10, 2013 Mental health Note. As such, with the impact PTSD has due to traumatic stress on the brain, the possibility that the Veteran's PTSD caused or aggravated his dizziness and vertigo is raised by the record. Therefore, the examiners should have considered this theory in providing their opinions. See Stefl. Moreover, the record shows that the Veteran had a CT scan of the brain related to his sinusitis and had a CT of the paranasal sinuses related to his dizziness. As this decision grants service connection for sinusitis, there is the potential that the service-connected sinusitis caused or aggravated his dizziness or vertigo. Therefore, this theory must be considered on remand. Accordingly, remand is warranted for further development. 4. Entitlement to service connection for tinnitus is remanded The Veteran was afforded a VA tinnitus examination in October 2020. The examiner opined that the Veteran's tinnitus is less likely than not incurred in or caused by his military service because the Veteran reported that the tinnitus began after he returned from Desert Storm and was discharged from the service. The examiner stated that the current literature does not support late onset noise-induced tinnitus. However, the examiner did not address in the rationale that the Veteran's tinnitus began in 1993, one year after his separation. Although the examiner referenced the current state of the literature regarding late onset tinnitus, the examiner needed to apply the facts of this particular case with a thorough medical analysis. The Veteran's tinnitus began close in time to his separation from military service. This is not a situation where the tinnitus began decades after separation. As such, further discussion and rationale based on the facts involved and medical discourse and research was required. See Nieves-Rodriguez. Therefore, the Board finds the VA tinnitus opinion to be inadequate. See Stegall; see also Barr. Additionally, the Board recognizes the interconnected relationship of the ears, nose, and throat. Therefore, a potential relationship between the Veteran's service-connected sinusitis and tinnitus should be considered on remand. Accordingly, remand is warranted for further development. The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA medical records and associate them with the claims file. 2. After the foregoing development has been completed, make arrangements to provide the record on appeal to a different examiner, preferably a specialist, for purposes of obtaining an opinion with respect to the nature and etiology of the Veteran's GERD. After reviewing the record, the examiner should address each of the following questions: a.) Is it at least as likely as not (i.e., is it 50 percent or more probable) that GERD had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include as a result of his exposures in Southwest Asia during the Persian Gulf War, to include PB pills, anthrax vaccinations, and exposure to toxic smoke? b.) Is it at least as likely as not the Veteran's GERD was (i) caused or (ii) aggravated (any incremental increase) by his service-connected PTSD, to include as a result of medication? The examiner must provide a complete rationale for any opinion expressed. 3. After the foregoing development has been completed, make arrangements to provide the record on appeal to a different examiner, preferably a specialist, for purposes of obtaining an opinion with respect to the nature and etiology of the Veteran's dizziness and vertigo. After reviewing the record, the examiner should address each of the following questions: a.) Is it at least as likely as not (i.e., is it 50 percent or more probable) that dizziness and vertigo had their onset in, or are otherwise attributable to, the Veteran's period of active service, to include as a result of his exposures in Southwest Asia during the Persian Gulf War, to include PB pills, anthrax vaccinations, and exposure to toxic smoke? b.) Provide an opinion as to whether the Veteran's dizziness or vertigo are not attributable to a known clinical diagnosis. If so, the examiner must then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the dizziness or vertigo are due to an undiagnosed illness or medically unexplained chronic multisymptom illness due to service in Southwest Asia during the Persian Gulf War. c.) Is it at least as likely as not the Veteran's dizziness and vertigo were (i) caused or (ii) aggravated (any incremental increase) by his service-connected PTSD or sinusitis, to include as a result of medication? The examiner must provide a complete rationale for any opinion expressed. 4. After the foregoing development has been completed, make arrangements to provide the record on appeal to a different examiner, preferably a specialist, for purposes of obtaining an opinion with respect to the nature and etiology of the Veteran's tinnitus. After reviewing the record, the examiner should address each of the following questions: a.) Is it at least as likely as not (i.e., is it 50 percent or more probable) that tinnitus (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including in-service noise exposure? The examiner must discuss that the Veteran's tinnitus developed the year following his separation. b.) Is it at least as likely as not the Veteran's tinnitus was (i) caused or (ii) aggravated ((any incremental increase) by his service-connected sinusitis? The examiner must provide a complete rationale for any opinion expressed. J.N. Moats Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, Associate 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.