Citation Nr: 21077329 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 20-26 427 DATE: December 29, 2021 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is granted. REMANDED Entitlement to service connection for a central nervous system disorder, to include white matter disease disorder is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of chronic sinusitis and the condition became manifest within 10 years of the date of her separation from active duty. 2. Resolving all doubt in the Veteran's favor, her currently diagnosed GERD had its onset during her military service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for chronic sinusitis have been met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2003 to April 2004, September 2005 to March 2006, and January 2010 to July 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran offered testimony at a Board hearing before the undersigned Veterans Law Judge in November 2021. This decision is being prepared under the Board's "one-touch" program, and a transcript of the Veteran's hearing is not yet available. Such a transcript will be added to the Veteran's file under the normal course of business. The Veteran's claim of service connection for a white matter disease disorder has been recharacterized to include all disorders of the central nervous system that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted 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 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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 sinusitis The Veteran contends that her respiratory disorder, to include chronic sinusitis is due to her burn pit exposure while deployed in Afghanistan. In this regard, she denied having any pulmonary complaints during her adult life until she reached Afghanistan. She further reported experiencing shortness of breath and tightness of chest during more extreme exertion or going up a full flight of stairs. The Board notes that, effective August 5, 2021, VA amended its adjudication regulations to allow for service connection for certain chronic respiratory diseases, to include asthma, rhinitis, and sinusitis, as presumptively due to exposure to particulate matter for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War (from August 2, 1990 to the present), or in Afghanistan, Syria, Djibouti, and/or Uzbekistan on or after September 19, 2001. 86 FR 42724 (August 5, 2021). Here, the Veteran has been diagnosed with chronic sinusitis. See 2018 VA treatment notes, listing chronic sinusitis diagnosed in February 2016. Military personnel records also confirm that she served in the Southwest Asia theater of operations during the requisite period. In this regard, the Veteran served in Afghanistan from 2010 to 2011. The key issue before the Board is whether the Veteran's chronic sinusitis became manifest to any degree within 10 years of her separation from military service. In this regard, the Board resolves any doubt in the Veteran's favor. As noted, the Veteran maintains that she experiences sinusitis symptoms, which may include shortness of breath during more extreme exertion or going up a full flight of stairs. Service connection on a presumptive basis is warranted. In any event, alternatively, the Board notes that service connection on a direct basis has been demonstrated. In this regard, a March 2011 service treatment records (STRs) show an in-service diagnosis of acute sinusitis. The Board acknowledges that the Veteran was afforded a VA examination in connection with her claim in May 2020 and the examiner concluded that it was less likely than not that the Veteran's disorder was caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted that the Veteran complained of trouble breathing while in Afghanistan, but there was no formal diagnosis of a respiratory issue due to burn pits. However, the Board finds that the Veteran's STRs and VA treatment records do show a diagnosis of sinusitis. As such, the May 2020 VA examiner's opinion is afforded no probative weight. The Veteran's STRs support a finding that the Veteran's sinusitis first became manifest during service. Moreover, her contention regarding the onset of her respiratory disease in service is consistent with the STRs and other evidence of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a veteran is competent to report observable symptoms, including their onset). Moreover, VA treatment records show that she was diagnosed with chronic sinusitis. Accordingly, the Board resolves any doubt as to the onset of the disability in the Veteran's favor. 38 U.S.C. § 5107. Entitlement to service connection for sinusitis is granted. 2. Entitlement to service connection for GERD The Veteran contends she currently has GERD, which is due to her military service. In this regard, the Veteran reports that she was diagnosed during service and she continues to receive treatment. As an initial matter, the Board notes that the Veteran has a diagnosis of GERD. See VA treatment records. Moreover, the Veteran's STRs reveal that she was diagnosed with reflux in April 2011, which was during a period of active-duty service. Additionally, in a June 2011 VA treatment record, she was diagnosed with GERD. Therefore, the remaining inquiry is whether the Veteran's GERD is related to her military service. In this regard, the Board notes that the Veteran has not been afforded an examination for her claimed disorder. However, the Board finds that the Veteran experienced symptoms of GERD and was diagnosed with reflux during service, and she received treatment for such disorder. Moreover, at the November 2021 Board hearing, she testified that such symptoms have continued since her military service. The Board finds the Veteran's statements of experiencing symptoms of GERD during service and ever since service to be competent, credible, and probative. After resolving all doubt in the Veteran's favor, the Board finds that her current GERD had its onset during service. Accordingly, service connection for GERD is warranted. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 3. Entitlement to service connection for a white matter disease disorder The Veteran contends that she has a white matter disease due to her military service. The Veteran was afforded a VA examination in November 2016; however, the examiner concluded that the Veteran did not have a current diagnosis. Additional opinions were obtained in March and April 2018 and the examiners continued to note that the Veteran did not have a diagnosis. However, at the November 2021 Board hearing, the Veteran stated that she receives treatment at a private facility. As such, those records should be obtained. Additionally, any outstanding VA treatment records should be obtained. The matters are REMANDED for the following actions: 1. The Veteran should be given an opportunity to identify any outstanding private and/or VA treatment records relevant to the claim on appeal, to include records related to her white matter disease disorder. After obtaining any necessary authorization from the Veteran, all outstanding relevant records from all indicated sources should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be provided notice and allowed the opportunity to provide such records. 2. After completing the above, if necessary, schedule the Veteran for an appropriate VA examination in order to determine the current nature and etiology of her central nervous system disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the record, the examiner should address the following: (A) Identify any diagnosis present, and note, and detail all reported symptoms pertaining to a central nervous system disorder. (B) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorders had their onset in or is otherwise related to the Veteran's military service, to include her exposure to burn pits. In rendering an opinion, the examiner should note that a February 2011 service treatment record indicates that the Veteran had multifocal areas of periventricular, a subcortical white matter abnormality bilaterally, and a demyelinating white matter process was possible. Additionally, a February 2020 VA treatment record noted that an MRI of the brain was done, and she had multiple periventricular white matter changes and significant involvement of the corpus callosum. A clear rationale for all opinions given is needed. A discussion of the facts and medical principles involved and the Veteran's lay assertions, to include her continuity of symptomatology, must be considered. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.