Citation Nr: 21074187 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-63 316 DATE: December 14, 2021 ORDER 1. Entitlement to service connection for sinusitis is granted. 2. Entitlement to service connection for rhinitis is granted. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War Era and was exposed to fine, particulate matter. 2. The Veteran is shown to have a diagnosis of sinusitis and rhinitis within 10 years following separation from a period of service that included the service in Southwest Asia. CONCLUSIONS OF LAW 1. Service connection for sinusitis is warranted. 38 U.S.C. §§ 1101, 1110, 1117, 5107; 38 C.F.R. § 3.102, 3.303, 3.317; 86 Fed. Reg. 148 (Aug. 5, 2021) (to be codified at 38 C.F.R. § 3.320. 2. Service connection for rhinitis is warranted. 38 U.S.C. §§ 1101, 1110, 1117, 5107; 38 C.F.R. § 3.102, 3.303, 3.317; 86 Fed. Reg. 148 (Aug. 5, 2021) (to be codified at 38 C.F.R. § 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1989 to May 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2013 Department of Veterans Affairs (VA) decisional letter. In December 2020, a virtual hearing was held before the undersigned; a transcript is in the record. Service Connection 1. 2. Service connection for sinusitis and rhinitis is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf Era, service connection may be presumed for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). During the pendency of the appeal, effective August 5, 2021, VA issued an interim final rule to amend its regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e. asthma, rhinitis, and sinusitis, (to include rhinosinusitis), with presumed exposure to fine, particulate matter. Essentially, as added, 38 C.F.R. § 3.320 establishes a presumption of service connection for veterans who served in the Southwest Asia Theater of operations and Afghanistan during the Persian Gulf War Era and have a diagnosis of certain diseases listed (to include rhinitis and sinusitis), even though there is no record of such disease during service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation. See 86 Fed. Reg. 42724 (August 5, 2021), to be codified at 38 C.F.R. § 3.320. This provision applies to claims pending before VA on the effective date of the rule. See 38 C.F.R. § 3.160. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran contends that she has sinusitis and rhinitis due to her service in Southwest Asia. Her service records show she served in Southwest Asia from July 1991 to November 1991, specifically in Saudi Arabia. A May 1992 performance evaluation notes she was stated at an evacuation hospital in Southwest Asia and worked in an expanded role as an Adult Nurse Practitioner. It was noted she was directly responsible for evaluation and treatment of acute minor illnesses and chronic conditions, including hypertension, diabetes, and hypercholesterolemia for all military, dependents, retirees, DOD personnel, and civilian emergencies. In addition, she was tasked to perform physical examinations for redeployment, periodic, and special chapters as required. The evaluator found her to be a competent practitioner with a sound grasp of chronic illness and health education. A May 1994 private treatment record notes a diagnosis of maxillary sinusitis. In a March 2013 statement, the Veteran reported she has been a nurse practitioner since June 1990 and treated herself if she had any illnesses or medical conditions. On May 2013 VA examination, chronic sinusitis and allergic rhinitis were diagnosed. The examiner found that the onset of sinusitis was in 1991 and the onset of rhinitis was in 1994. The Veteran reported that sinusitis started when she served in the Persian Gulf War and rhinitis manifested after service when she was living in Panama. The examiner noted that she had documentation of two incidences of complaints of and treatment for sinusitis while in 1994 but there is no documentation for allergic rhinitis. While the examiner opined there was no diagnostic evidence of chronic sinusitis, the examiner found, on physical examination, she currently has maxillary and frontal chronic sinusitis; signs and symptoms currently affecting the Veteran include headaches, pain and tenderness of affected sinus, and purulent discharge. At the December 2020 Board hearing, the Veteran testified that she has been a VA compensation and pension (C&P) examiner for the past 9 years and was exposed to burn pits, sand storms, and oil smoke fires from Kuwait. She testified that within a year following separation from service, she began to experience sinus and allergy issues, had to self-treat herself while living in Panama in 1993, and has been on antihistamines for the past 25 years. Citing to medical treatise, she explained that high level of fine dust and pollution common in that area (Southwest Asia) poses a greater danger for respiratory illnesses. Sinusitis and rhinitis are now on the list of diseases based on presumed exposure to particulate matter warranting a presumption of service connection if manifested in service or to any degree within 10 years of separation from service. The Board finds that the requirements for establishing service connection for sinusitis and rhinitis under the new presumptive provisions of the new 38 C.F.R. § 3.320 are met. The Veteran had the requisite service in Southwest Asia during the Persian Gulf War era. Sinusitis was diagnosed in 1994. Although rhinitis was not documented as diagnosed until on May 2013 VA examination, the Board finds no reason to question the Veteran's competency to diagnosis rhinitis in 1994 (as she reported on VA examination, and which the provider accepted as factual). She is shown to have the requisite medical training and experience to diagnose the claimed disabilities. The record shows that she has been a nurse practitioner since 1990 and was found to be a competent practitioner with a sound grasp of chronic illness while deployed to an evacuation hospital in 1992. The description of the manifestations of sinusitis and rhinitis by the Veteran reasonably establish that the diseases manifested to a compensable degree within 10 years following her qualifying period of service in Southwest Asia during the Persian Gulf War Era. As she is presumed to have been exposed to particulate matter based on her service in Southwest Asia during the Persian Gulf War, a presumption of service connection for sinusitis and rhinitis is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.