Citation Nr: 21077494 Decision Date: 12/30/21 Archive Date: 12/29/21 DOCKET NO. 16-41 341 DATE: December 30, 2021 ORDER Entitlement to service connection for sinusitis is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right ear hearing loss disability is remanded. Entitlement to service connection for chronic ear infections is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for testosterone disability is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for a nerve disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hemorrhoid is remanded. Entitlement to service connection for a prostate disability is remanded. FINDINGS OF FACT 1. The Veteran served in Uzbekistan on or after September 19, 2001. 2. The Veteran has sinusitis and there is not affirmative evidence his sinusitis was not incurred in service or that it was caused by a supervening condition or event. CONCLUSION OF LAW 1. Sinusitis is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had periods of active duty with the Army National Guard, including from July 2003 to March 2004. See July 2004 Retirement Point History Statement. The Board remanded the Veteran's claims in September 2018, November 2020 and July 2021. 1. Entitlement to service connection for sinusitis Upon review of the evidence of record, the Board finds service connection on a presumptive basis is warranted for sinusitis. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Recently, VA promulgated a new regulation (38 C.F.R. § 3.320), effective August 5, 2021, to establish a presumption of service connection for three chronic respiratory conditions, including sinusitis, related to exposure to fine particulate matter for Gulf War veterans serving in Southwest Asia and four other identified areas. Specifically, sinusitis shall be service connected, even though there is no evidence of such disease during the period of service, if it became manifest to any degree within 10 years following the date of separation from military service that includes a qualifying period of service. A qualifying period of service is defined as any period of active military, naval, or air service in the Southwest Asia theater of operations (as defined in 38 C.F.R. § 3.317 (e)(2)), during the Persian Gulf War (as defined in 38 C.F.R. § 3.2 (i)), as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001 during the Persian Gulf War. See 38 C.F.R. § 3.320. A review of the record reveals the Veteran suffers from sinusitis. Due to a dearth of personnel records, the Veteran's claims file does not contain evidence of service in a relevant country in his service personnel records. Nevertheless, the limited service treatment records include a post-deployment health assessment from February 2004 that indicates the Veteran served in Uzbekistan during his July 2003 to March 2004 period of service. Therefore, the remaining question is whether the Veteran's sinusitis manifest by March 2014, i.e. "within 10 years from the date of separation from military service that includes a qualifying period of service". See 38 C.F.R. § 3.320(a)(1). Unfortunately, there are limited treatment records in the 10 years after the Veteran's March 2004 separation from service, and those that exist make no reference to sinusitis. The vast majority of the Veteran's treatment records are from 2014 forward. A September 2014 private treatment record by Dr. S.M. contains a review of symptoms that includes a statement of "[c]hronic sinus or rhinitis", though the clinician diagnosed chronic rhinitis. See September 17, 2014 private treatment record. However, two months later, Dr. S.M. also noted if there wasn't improvement after another two months then a CT (computerized tomography) scan of the Veteran's sinuses should be performed. See November 19, 2014 private treatment record. Notably, chronic sinusitis was eventually diagnosed, and the Veteran was operated on. See January 9, 2015 (Dr. S.M. diagnosing chronic sinusitis) and March 14, 2016 treatment records (pre and post-operative diagnosis of chronic sinusitis). Treatment records after his surgery make reference to chronic sinusitis, but not rhinitis. See, e.g., September 17, 2019 VA treatment record; but see April 2021 sinusitis/rhinitis VA examination report. The evidence does not indicate the Veteran began experiencing symptoms of sinusitis on the day he started seeking treatment in 2014. To the contrary, he started seeking treatment for a variety of ailments around this time. See, e.g., September 14, 2014 statement in support of claim. Furthermore, he was found to have a "chronic" condition, indicating it had persisted for a period of time. Therefore, the Board resolves doubt in favor of the Veteran in finding his sinusitis manifest within 10 years of separating from service in March 2004, the period of service in which he served in Uzbekistan. There is not affirmative evidence his sinusitis was not incurred in service or that it was caused by a supervening condition or event. Accordingly, service connection for sinusitis on a presumptive basis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a right ear hearing loss disability is remanded. 3. Entitlement to service connection for chronic ear infections is remanded. 4. Entitlement to service connection for diabetes is remanded. 5. Entitlement to service connection for testosterone disability is remanded. 6. Entitlement to service connection for a respiratory disability is remanded. 7. Entitlement to service connection for allergies is remanded. 8. Entitlement to service connection for a nerve disability is remanded. 9. Entitlement to service connection for a left leg disability is remanded. 10. Entitlement to service connection for a right leg disability is remanded. 11. Entitlement to service connection for a left hip disability is remanded. 12. Entitlement to service connection for a right hip disability is remanded. 13. Entitlement to service connection for a left knee disability is remanded. 14. Entitlement to service connection for a right knee disability is remanded. 15. Entitlement to service connection for a left wrist disability is remanded. 16. Entitlement to service connection for a right wrist disability is remanded. 17. Entitlement to service connection for fibromyalgia is remanded. 18. Entitlement to service connection for hypertension is remanded. 19. Entitlement to service connection for hemorrhoid is remanded. 20. Entitlement to service connection for a prostate disability is remanded. Upon review of the evidence of record, the Board finds remand is warranted to ensure substantial compliance with the Board's July remand and to obtain treatment records in VA's custody. The Board remanded the Veteran's claims in July 2021, in part, because the Agency of Original Jurisdiction (AOJ), did not submit a new request to obtain the Veteran's service treatment records from the National Personnel Records Center (NPRC), instead relying on an attempt made in May 2015. See July 2021 Board decision, page 16. Since then, the AOJ sought service treatment records from a couple of sources, but again relied on the 2015 request from NPRC. See September 10, 2021 correspondence. Furthermore, it does not appear the AOJ attempted to obtain records from the Maryland Army National Guard. This is of particular importance as the limited service personnel records in the claims file indicate the Veteran's unit was going to forward medical records to "MD-STARC-PSB" (Maryland - State Area Command - Personnel Service Battalion) not later than 30 days from his March 2004 discharge. See March 16, 2004 service personnel record. This does not constitute substantial compliance with the Board's July 2021 remand. A remand by the Board confers on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999). In light of the above, remand is warranted to ensure compliance with the Board's remand. Additionally, a review of the record reveals VA is in custody of treatment records that are not included in the Veteran's claims file. A January 2015 VA treatment record indicates the Veteran's hearing acuity was evaluated during an audiological evaluation. The audiometric results from that evaluation, including word scores, do not appear to have been associated with the claims file. However, the treatment record notes that that the results can be seen "in audiogram display." See January 27, 2015 VA treatment record. VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Therefore, remand is warranted to obtain the results of the January 2015 audiological evaluation. Also, the Veteran's VA treatment records indicate he participates in the CHOICE program to receive private treatment, through VA, including from a chiropractor. See VA treatment records from March 18, 2019 (CHOICE approval for chiropractor) and Feb 18, 2020 (CHOICE approval for gastro specialist). Upon remand, efforts to obtain records from this chiropractor should be made. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for treatment providers, including the chiropractor he received CHOICE approval for. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's up-to-date VA treatment records, including the results of the January 2015 audiological evaluation. 3. Obtain the Veteran's complete service personnel and treatment records, to include all documents pertaining to his service in the Maryland National Guard. New requests should be made with DPRIS, NPRC, and Maryland National Guard including Maryland - State Area Command - Personnel Service Battalion. Document all requests for information as well as all responses in the claims file. Verify all active duty, active duty for training and inactive duty training dates. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.