Citation Nr: A21020478 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 200526-87533 DATE: December 23, 2021 ORDER Entitlement to service connection for sinusitis is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for a left hip disability, including strain, is remanded. Entitlement to service connection for left leg radiculopathy, as secondary to a left hip disability, is remanded. FINDINGS OF FACT 1. The Veteran served in Afghanistan on or after September 19, 2001 and, absent evidence to the contrary, is presumed to have been exposed to fine, particulate matter during such service. 2. The Veteran has a current diagnosis of sinusitis. CONCLUSION OF LAW The criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 2010 to March 2011, April 2011 to July 2011, July 2011 to March 2012, and April 2012 to July 2012. The rating decision on appeal was issued in September 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2019 decision on appeal. 38 C.F.R. § 20.301. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Entitlement to service connection for sinusitis. The Veteran contends that service connection is warranted for sinusitis. In a September 2019 rating decision, VA made favorable findings of service in Afghanistan and diagnosis of a current disability. During the pendency of this appeal, VA issued new regulations creating a presumption of service connection for certain respiratory conditions based on its evaluation of a National Academies of Science, Engineering and Medicine report and other evidence. This report and evidence included studies concluding that particulate matter pollution is associated with chronic asthma, rhinitis and sinusitis for Veterans who served in the Southwest Asia theater of operations, including Kuwait, beginning August 2, 1990 to the present. VA's review also concluded that there was sufficient evidence to presume that these Veterans have been exposed to particulate matter. The new regulation, effective August 5, 2021, added three chronic respiratory conditions, asthma, rhinitis, and sinusitis, to include rhinosinusitis, to the list of presumptive service connection conditions related to presumed exposure to fine, particulate matter. 38 C.F.R. § 3.320. These presumptions apply to Veterans who served in the southwest Asia theater of operations during the Persian Gulf War, as well as Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001. Id. These revisions apply to all claims received by VA on or after August 5, 2021, or that were pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021. 86 Fed. Reg. 42724. Based on the evidence of record, the Board finds that service connection is warranted for sinusitis. The evidence of record documents a current disability of sinusitis and service in Afghanistan after September 19, 2001. While the Veteran reported on a post-deployment health assessment that she was not concerned about environmental exposures, this does not rise to a denial that she experienced environmental exposures during service in Afghanistan. The Veteran reports environmental exposures during service in Afghanistan and there is no evidence to the contrary. Thus, the Board presumes the Veteran was exposed to fine, particulate matter. There is no evidence that the Veteran's sinusitis is related to any other cause. Thus, the presumption under 38 C.F.R. § 3.320 is applicable. Service connection for sinusitis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. The Veteran contends that service connection is warranted for headaches. Specifically, she contends that her headaches are due to environmental exposures during service in Afghanistan. Alternatively, she contends that her headaches are secondary to her allergic rhinitis and sinusitis. In a September 2019 rating decision, VA denied service connection for headaches. While VA made a favorable finding of service in Afghanistan, VA found that there was no evidence of a current disability, the Veteran denied she was concerned about environmental exposures on a post-deployment health assessment, and she was not service-connected for allergic rhinitis or sinusitis. The Board notes that since the September 2019 rating decision, VA granted service connection for allergic rhinitis in a July 2020 rating decision and that the Board is granting service connection for sinusitis as discussed above. Here, the Board notes that the Veteran is competent to report that she has headaches or experiences headache pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, while the Veteran reported she was not concerned about environmental exposures, this does not rise to a denial that she experienced environmental exposures during service in Afghanistan. Furthermore, under the revised 38 C.F.R. § 3.320, the Veteran is presumed to have been exposed to fine, particulate matter. As there is evidence of a current disability or persistent or recurrent symptoms of a disability and an event, injury, or disease in service, the Board finds that VA should have obtained a VA examination. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A remand is required to correct this pre-decisional duty to assist error. 2. Entitlement to service connection for a left hip disability, including strain, is remanded. 3. Entitlement to service connection for left leg radiculopathy, as secondary to a left hip disability, is remanded. The Veteran contends that service connection is warranted for a left hip disability and left leg radiculopathy. Specifically, she contends that these disabilities began during service and are due to the rigors of service. In a September 2019 rating decision, VA denied service connection for a left hip disability and left leg radiculopathy. While VA made favorable findings of a current disability of left hip pain and left leg radiculopathy, VA found that there was no evidence of an in-service occurrence or that the conditions were otherwise related to service, and that the Veteran was not service-connected for a primary left hip disability to establish left leg radiculopathy as secondary to a left hip disability. Here, the Board notes that the Veteran is competent to report onset of hip pain and left leg radiculopathy during service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, she has supplied lay statements as to the rigors of service. Her military personnel records reflect service in Afghanistan and that she received hostile fire/imminent danger and/or combat pay from September 2011 through March 2012. As there is evidence of a current disability or persistent or recurrent symptoms of a disability and an event, injury, or disease in service, the Board finds that VA should have obtained a VA examination. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A remand is required to correct this pre-decisional duty to assist error. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for her claimed headache disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's headache disability at least as likely as not related to service, including environmental exposures in Afghanistan? If the Veteran's headache disability was not incurred in or is not otherwise related to service, is the headache disability (1) at least as likely as not proximately due to service-connected disability, including allergic rhinitis and sinusitis, or (2) aggravated, i.e., worsened beyond its natural progression, by service-connected disability, including allergic rhinitis and sinusitis? Provide a rationale to support the opinion(s). 2. Schedule the Veteran for a VA examination for her claimed left hip pain and left leg radiculopathy. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's left hip pain and/or left leg radiculopathy at least as likely as not related to service, including the rigors of service? Provide a rationale to support the opinion(s). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.