Citation Nr: 21075519
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 17-08 180
DATE:       December 20, 2021

ORDER

Service connection for sinusitis resulting from service in Southwest Asia during the Persian Gulf War is granted. 

FINDING OF FACT

The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and suffers from sinusitis which manifested within ten years of such service.  

CONCLUSION OF LAW

Service connection for sinusitis resulting from service in Southwest Asia during the Persian Gulf War have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; 86 Fed. Reg 42724 (Aug. 5, 2021) (to be codified at 38 C.F.R. § 3.320).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1992 to August 1993, December 2004 to January 2006, and July 2010 to May 2012, with periods of ACDUTRA, including from August 13, 2013, through September 25, 2013. He received the Combat Action Badge. In September 2019, he testified at a hearing before the undersigned Veterans Law Judge. In April 2021, the Board of Veterans' Appeals (Board) remanded this appeal for further development. 

Service Connection--Sinusitis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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). A layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).

VA regulations also provide that service connection may be awarded on a presumptive basis, meaning without competent evidence of a nexus between the claimed illness and service, for certain veterans who served in the Persian Gulf War. As applicable to the instant matter, VA recently issued an interim final rule in the Federal Register amending the applicable regulations (specifically, adding 38 C.F.R. § 3.320) to establish a presumptive service connection, effective August 25, 2021, for three chronic respiratory conditions, including sinusitis, in association with presumed exposure to fine, particulate matter for those who served in the Southwest Asia theater of operations during the Persian Gulf War, as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Persian Gulf War, as long as the condition manifested to any degree within 10 years of a qualifying period of service. The revised regulation applies to all current respiratory claims pending before VA. See 86 Fed. Reg 42724 (Aug. 5, 2021). 

The Veteran seeks service connection for a respiratory disability that he attributes to his service in the Persian Gulf War. To that effect, the Veteran's service in the Southwest Asia theater of operations during the Persian Gulf War has been conceded and is not in dispute. Further, he testified before the Board in September 2019 that he experiences chronic symptoms of sinusitis, particularly chronic sinus congestion, and that the symptoms began during his Gulf War service. Sinusitis is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating this claim is to assess the credibility of the Veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

In this regard, the Veteran has consistently reported (both at the hearing before the Board in September 2019, at a July 2016 hearing before a Decision Review Officer, and in all related lay statements he has made during this appeal) that his respiratory condition is manifested by symptoms of recurring sinus congestion. The Board has no reason to question the credibility of his consistent statements regarding his symptoms, and finds that he has sinusitis which manifested within 10 years of his separation from a period of Gulf War service. Accordingly, the provisions for presumptive service connection under 86 Fed. Reg 42724 (Aug. 5, 2021) have been met for the Veteran's sinusitis, and the claim for service connection for this disorder is granted.

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Davidoski, 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.