Citation Nr: A21019983 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200515-83732 DATE: December 15, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a sinus disorder, to include as due to environmental exposures in the Persian Gulf, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1991 to October 1994 and from January 1996 to December 2004, to include service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2020 and April 2020 higher level review decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed these issues to the Board by way of a May 2020 VA Form 10182 Decision Review Request: Board Appeal wherein he elected direct review by a Veterans Law Judge (VLJ). The Board notes that the Veteran had previously filed a VA Form 10182 Decision Review Request: Board Appeal attempting to appeal the issue of service connection for sinusitis on October 25, 2019. Therein, he noted he was attempting to appeal a 2018 denial on the issue. Although the RO had rendered an AMA decision the prior day (on October 24, 2019) denying service connection for sinusitis, the Veteran was not notified of such decision until October 30, 2019, when VA sent him a notification of the denial. Thus, the Board finds that the Veteran was not attempting to appeal an AMA denial on the issue of sinusitis at that time he filed the October 2019 VA Form 10182, and his appeal as to that issue was not then valid. The Board further notes that the Veteran's May 2020 VA Form 10182 also noted that the Veteran wished to appeal denials of an increased rating for tinea pedis and of service connection for Gulf War Syndrome. The Veteran's appeal for an increased rating for tinea pedis was denied in an August 6, 2020, Board decision and is no longer before the Board. As to his appeal for service connection for Gulf War Syndrome, there is no prior AMA decision denying Gulf War Syndrome for the Veteran to properly appeal via a VA Form 10182. The issues of entitlement to service connection for major depressive disorder and a sinus disorder are properly before the Board. Thus, the Board's review is limited to the evidence of record at the time of issuance of the April 14, 2020 (sinus disorder) and May 13, 2020 (major depressive disorder) AMA decisions on appeal. 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities. The Veteran asserts that his current acquired psychiatric disorder had its onset in service or, in the alternative, is secondary to his service-connected right shoulder, right knee, and left leg disabilities. In various documents of record and at his November 2015 VA examination, he reported his symptoms of depression began in service after breaking up with his girlfriend, and that his hair fell out due to anxiety after boot camp. He also reported witnessing the deaths of two men during his military service. The first died when his head was caught in a dumbwaiter, and the second drowned when he fell in a sewage tank. The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of an acquired psychiatric disorder; however, post-service treatment records reflect an initial diagnosis of major depressive disorder, (MDD) recurrent, mild, in April 2012. At a May 2012 mental health follow up appointment, the Veteran was diagnosed with depression, not otherwise specified (NOS). At such time, he reported he had problems with depression for a number of years and became depressed again several months ago. He had job stress and shoulder surgery, and reported that, since December [of 2011], he does not do much. He stated his job stress was due to feeling disappointed he got "passed over" for promotion and he has not had a raise in 3 years. The examiner noted the Veteran's descriptions of feelings and symptoms are vague, and such symptoms come and go. The Veteran stated that, on most days, he can cope with stress and not dwell on the past. The Veteran underwent an initial VA posttraumatic stress disorder (PTSD) examination in November 2015. At such time, the examiner diagnosed the Veteran with MDD, recurrent, moderate, but stated the Veteran was not diagnosed with PTSD. The examiner then opined that PTSD was less likely than not related to his military service as there is no proof the Veteran was seen for mental health treatment while in the military. The Board finds this opinion inadequate to decide the claim. In this regard, the Board notes that the absence of evidence of complaints, treatment, or a diagnosis referable to an acquired psychiatric disorder in the Veteran's STRs cannot serve as the sole basis for a negative opinion. Additionally, the examiner failed to provide an opinion as to the Veteran's diagnosed psychiatric disorder of MDD, recurrent, moderate, instead only stating that PTSD is not related to the Veteran's military service. Finally, subsequent to his November 2015 VA examination, in January 2020, the Veteran submitted a statement asserting his MDD is secondary to his service-connected right shoulder, right knee, and left leg disabilities. However, no medical opinion has been obtained regarding this theory of contention. The above errors constitute pre-decisional duty to assist errors which must be corrected before the Board can decide this claim. 2. Entitlement to service connection for a sinus disorder, to include to include as due to environmental exposures in the Persian Gulf. As an initial matter, the Board notes VA treatment records reflect the Veteran is prescribed sinus medication and note diagnoses of allergic rhinitis, sinus problems, and chronic nasal congestion. See July 2013, January 2014, January 2015, October 2015, October 2017, December 2018, May 2019, and July 2019. The Veteran contends his sinus disorder had its onset in military service or is secondary to sleep apnea. However, the Board notes the Veteran is not service-connected for sleep apnea, and thus, such theory of entitlement will not be discussed further herein. As relevant, STRs reflect sinus pain and viral pharyngitis in December 1992, congestion in February 1997, and sinusitis in 1999. Further, on a July 1992 dental health questionnaire, the Veteran reported that he had sinus problems. The Veteran underwent a VA examination for his sinus disorder in July 2014. At such time, the examiner marked that the Veteran did not have a current diagnosis of, and had never been diagnosed with, a sinus, nose, throat, larynx, or pharynx condition. However, he then marked that continuous medication was required for such condition, and that the Veteran had seven or more non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the prior 12 months. The examiner then opined that the Veteran's claimed sinus disorder was less likely than not related to his military service. As rationale, he stated the Veteran did not currently have clinical or radiographic sinusitis, and, further, he was unable to review service records from September 1998, which may have reflected a diagnosis of sinusitis. However, such opinion is in conflict with the Veteran's VA treatment records, which as mentioned supra, reflect diagnoses of allergic rhinitis during the pendency of the appeal. In this regard, the requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, a remand is warranted in order to afford the Veteran a new VA examination to determine the nature and etiology of his currently diagnosed sinus disorder. The above errors constitute pre-decisional duty to assist errors which must be corrected before the Board can decide this claim. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this Remand, to an appropriate examiner, other than the November 2015 VA examiner, if possible, in order to obtain an opinion as to the etiology of the Veteran's major depressive disorder. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's major depressive disorder, diagnosed at his November 2015 VA examination, is related to his military service, to include his reports of experiencing depressive symptoms in service and witnessing the deaths of two servicemembers. (B) Is it at least as likely as not (i.e., 50 percent of greater probability) that the Veteran's major depressive disorder, is caused or aggravated by his service-connected right shoulder, right knee, and left leg disabilities. For any aggravation found, the examiner should state, to the best of their ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder. He or she should also consider the Veteran's reports that his psychiatric symptomatology had its onset in service and has continued to the present time. A rationale for any opinion offered should be provided. 2. Schedule the Veteran for a VA examination to evaluate the nature and etiology of his sinus disorder, to include allergic rhinitis and sinusitis. The record and a copy of this Remand must be made available to the examiner. The examiner should conduct all necessary tests. Following review of the record and examination of the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his sinus disorder had its onset during, or is otherwise related to service, to include exposure to environmental hazards consistent with his service in Southwest Asia, and to include his documented in-service complaints of congestion, sinus pain, and assessments of sinusitis and/or viral pharyngitis. A rationale for any opinion offered should be provided CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.