Citation Nr: 21074564 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-51 443 DATE: December 15, 2021 ORDER Entitlement to service connection for sinusitis to include as a result of exposure to Persian Gulf War environmental hazards is granted. REMANDED Entitlement to service connection for a respiratory disability, to include as the result of exposure to Persian Gulf War environmental hazards and/or secondary to a service-connected disability, is remanded. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain is remanded. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran's chronic sinusitis is etiologically related to his service. 3. The Veteran is not currently diagnosed with a respiratory disorder. 4. The Veteran's lumbosacral strain did not result in forward flexion of the thoracolumbar spine to 30 degrees or less or, favorable ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an increased rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2006 to November 2006 and from January 2008 to March 2011. He served in Iraq and was awarded the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. These issues were previously remanded by the Board in October 2019. The requested development has been completed. These issues have returned to the Board for additional appellate consideration. 1. Entitlement to service connection for sinusitis to include as a result of exposure to Persian Gulf War environmental hazards. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a Persian Gulf veteran who exhibited objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptoms illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense, of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2), (5). Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between your most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The Board acknowledges additional presumptive service connection for infectious diseases under 38 C.F.R. § 3.317(c) but finds that there is no lay or medical evidence that the Veteran has ever contracted the diseases listed under this provision. Thus, the applicability of these provisions is not reasonably raised. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Analysis In this post-remand case, the Veteran seeks service connection for sinusitis to include as a result of environmental hazards during the Persian Gulf War. This issue was remanded by the Board in order to provide the Veteran with a VA examination and etiological opinion. The Veteran was afforded VA examinations in connection with this appealed issue in February 2020 and January 2021, and the examiners provided a diagnosis of chronic sinusitis with initial diagnosis dates of 2008 and 2009, respectively. Therefore, the Board finds the first element necessary for service connection has been met. Regarding an in-service event or injury, the Veteran served in Iraq, and his service treatment records (STRs) reflect his reports of exposure to dead animal bodies, JP8 or other fuels, pesticides, smoke from burning trash or feces, smoke from oil fire, and vehicle or truck exhaust fumes. The Veteran contends he began experiencing sinus discharge and pain due to exposure to burn pits during his deployment to Iraq. His STRs contain a complaint in 2008 regarding sinus congestion and cough. As such, element (2) has been amply demonstrated. As to the final element necessary for service connection, a medical nexus, the Board finds the evidence to be in equipoise as to whether the Veteran's chronic sinusitis to be etiologically related to his exposure to environmental hazards during his deployment to Iraq. A positive nexus statement was obtained from a VA examiner in February 2020. Here, the examiner noted that after a review of the Veteran's record, to include his service in Iraq and exposure to burn pits, that it is at least as likely as not (50 percent or greater probability) that his sinusitis was incurred in or caused by his active-duty service. The examiner provided the explanation that the Veteran began to have sinus and respiratory complaints while in Iraq and that, given his current diagnosis and in-service complaints, the examiner concluded that the Veteran's sinus disability had its onset during active service. Furthermore, the examiner stated that it is at least as likely as not that his sinus disability was caused by exposure to inhaled toxins consistent with service in Iraq. The Board finds this opinion to be of great probative value given the rationale regarding its in-service onset and continuing symptoms. For unclear reasons, the RO obtained another medical nexus opinion from a different VA clinician in June 2020, and such is unfavorable to the Veteran's appeal. As rationale, the examiner explained that the Veteran experienced intermittent sinus infections, and thus, a positive nexus for chronic sinusitis could not be stated. The Board finds this opinion to be of little probative value given its conclusory nature and lack of reasoning bolstering the conclusion reached. In addition, another VA examination was provided in January 2021. Here, the examiner noted his pre-deployment records show no evidence of previous complaints and despite his in-service complaints, it is unlikely causing any long-term effects or consequences. The Board also finds this opinion to be of little probative value. The examiner acknowledges the Veteran's in-service complaints, but concludes that there is no long-term effects or consequences despite his ongoing chronic symptoms. Given the conflicting opinions with at least one positive nexus statement, the Board finds the evidence to be in equipoise as to whether his sinusitis was etiologically related to his service to include exposure to burn pits during his deployment to Iraq. Therefore, service connection on a presumptive basis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disability, to include as the result of exposure to Persian Gulf War environmental hazards and/or secondary to a service-connected disability, is remanded. 2. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain is remanded. The Veteran's appealed issues were readjudicated by the Veterans Benefits Administration (VBA) in a March 2021 Supplemental Statement of the Case (SSOC), and such was sent to the Veteran and his private attorney, as per the controlling laws and the Board's prior remand directives. Two weeks after the March 2021 SSOC was dispatched, the copy sent to the Veteran's private attorney by the United States Postal Service as "undeliverable." The Agency of Original Jurisdiction (AOJ) made no attempt to confirm the private attorney's address or otherwise provide the private attorney with notice of the readjudication. Instead, the AOJ re-certified the Veteran's appealed issues back to the Board. In sum, the Veteran's private attorney has not been notified of the March 2021 SSOC which readjudicated the Veteran's appealed issues, and thus, he has effectively been deprived of representation. The defect in due process impacts all of the Veteran's appealed issue; however, the Board's readjudication of the issue seeking to establish service connection for sinusitis is not precluded in light of the fully favorable disposition. The same may not be true of these two issues, and thus, a remand is necessary to cure this procedural defect. The matters are REMANDED for the following action: 1. The AOJ must make all efforts to find a current mailing address for the Veteran's private attorney. 2. Thereafter, the AOJ must provide the Veteran and his private attorney with a copy of the March 2021 Supplemental Statement of the Case and afford both parties an appropriate opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.