Citation Nr: 21023909 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-03 918A DATE: April 21, 2021 ORDER Entitlement to service connection for sinusitis is granted. REMANDED Entitlement to service connection for fibromyalgia, to include as a chronic qualifying disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for chronic fatigue syndrome, to include as a chronic qualifying disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a gastrointestinal disorder, to include as a chronic qualifying disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a skin disorder, to include dermatitis is remanded. Entitlement to service connection for high blood pressure, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD is remanded. FINDING OF FACT Resolving reasonable double in the Veteran’s favor, sinusitis is at least as likely as not related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for sinusitis have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1990 to July 1991 and from January 2006 to April 2007. He also had a period of active duty for training (ACDUTRA) from June 1982 to July 1982. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to service connection for a sinus disorder The Veteran contends that service connection is warranted for sinusitis. He contends that his current sinusitis is related to in-service exposure to inhalation of smoke from oil fires and burn pits while serving in Iraq. Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After consideration of the evidence of record, the Board concludes that the weight of the evidence is at least in equipoise as to whether the Veteran’s sinusitis is etiologically related to active duty service. First, there is evidence of a current disability. A March 2020 private treatment record from C.O., M.D., reflects a diagnosis of sinusitis. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although the Veteran’s service treatment records are silent for any complaints of or treatment for sinusitis, the Veteran has provided lay statements explaining that he was exposed to smoke from oil fires and burn pits while stationed in Iraq. Review of the Veteran’s service personnel records reflects that he was stationed in Kuwait/Iraq from March 2006 through March 2007. Because the Veteran’s lay statements regarding his in-service exposure to smoke from oil fires and burn pits is consistent with the places, types, and circumstances of his service in Iraq from 2006 through 2007, the Board accepts the Veteran’s lay statements as competent and credible evidence of in-service exposure to environmental toxins from oil fires and burn pits. In addition, the medical evidence is at least in equipoise as to whether the Veteran’s sinusitis is related to his active duty service. In opinions dated in March 2020 and February 2021, C.O., M.D., provided opinions that the Veteran’s sinusitis was caused by his in-service exposure to inhalation of environmental toxins from oil fires and burn pits. Dr. C.O. explained that his opinion was based upon examination of the Veteran, treatment of the Veteran’s symptoms, and consideration of the Veteran’s lay statements regarding his in-service exposure and post-service symptoms. Although a December 2020 VA opinion concluded that the Veteran’s sinusitis was not related to service, the rationale reveals that the opinion was based solely on a lack of documented evidence of sinusitis during service. In that regard, the examiner specifically noted that there were “no imaging studies or treatment records to confirm the diagnosis of chronic sinusitis while in the military . . . .” The examiner also reported, without explanation, that there was “no actual justification for its connectedness to the trash burning in the middle east.” Thereafter, the examiner indicated that the Veteran was “a very credible witness” and that if the opinion were based “on the Veteran’s personal medical history, I would render a positive opinion. However, examiner was asked simply to verify if the RECORDS indicate the connection between service and the chronic sinusitis, which is the impetus for why I had to write a negative opinion.” (Emphasis in original). A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner’s opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Because the VA opinion was clearly based on a lack of evidence of sinusitis in the service treatment records, and failed to adequately consider the Veteran’s competent lay statements, the Board affords the December 2020 VA opinion little probative value. With the benefit of the doubt resolved in the Veteran’s favor, service connection for sinusitis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia; entitlement to service connection for chronic fatigue syndrome; and entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome, are remanded. The Veteran alleges that he has fibromyalgia, chronic fatigue syndrome, and a gastrointestinal disorder, which are chronic qualifying disabilities under 38 U.S.C. § 1117 based upon his service in Southwest Asia. The Veteran underwent VA examinations in October 2015 regarding these disabilities. The October 2015 VA examiner concluded that there were no diagnoses of fibromyalgia, chronic fatigue syndrome, or a gastrointestinal disorder. However, the examiner’s opinion that there were no such diagnoses appears to be based upon review of the medical treatment records in the claims file at the time; there is no indication that the conclusion was based upon the examiner’s own clinical evaluation of the Veteran. Moreover, with regard to chronic fatigue syndrome, the examiner specifically noted that the Veteran should have a metabolic work up to rule out other causes of fatigue. It does not appear that the October 2015 VA examiner conducted a proper examination with any indicated tests or studies to determine whether the Veteran meets the diagnostic criteria for diagnoses of fibromyalgia, chronic fatigue syndrome, or a gastrointestinal disorder. Further, the Veteran has submitted a private medical opinion stating that the Veteran was being treated for “symptoms” including irritable bowel syndrome, fibromyalgia, and chronic fatigue syndrome. While this opinion suggests that the Veteran may have diagnoses of these disabilities, the physician’s classification of the disorders as “symptoms” is too vague to determine whether the Veteran meets the diagnostic criteria for diagnoses of these disabilities. Accordingly, a new VA examination is warranted. Additionally, the Board observes that the October 2015 VA examiner suggested that the Veteran’s fatigue symptoms may be associated with depression, which is a symptom of his service-connected PTSD. Accordingly, the examiner should provide an opinion as to whether any diagnosed disorder manifested by fatigue was caused or aggravated by his service-connected PTSD. 2. Entitlement to service connection for a skin disorder, to include dermatitis is remanded. The Veteran contends that he began experiencing this skin disorder approximately seven months after his deployment to Iraq, and contends that the disorder is related to environmental exposures in Iraq. The Veteran underwent a VA examination assessing the etiology of his skin disorder in October 2015. While the VA examiner diagnosed dermatitis and opined that the Veteran’s skin disorder was not related to a specific exposure event during the Veteran’s service in Southwest Asia, the examiner provided no explanation or rationale for that conclusion. Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because the October 2015 VA examination did not provide sufficient explanation or rationale for its conclusion, a new VA examination is warranted. 3. Entitlement to service connection for high blood pressure, to include as secondary to service-connected PTSD; and entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD, are remanded. The Veteran contends that he has high blood pressure and obstructive sleep apnea related to his service-connected PTSD. He also reported that he was first diagnosed with high blood pressure in 2007, and that he began treatment with medication at that time. Additionally, he testified that his wife recalled that he started snoring soon after he returned from his deployment to Iraq in 2007. The Veteran has not been provided with a VA examination to determine the etiology of his high blood pressure or sleep apnea. Based on the Veteran’s testimony of symptoms of high blood pressure and sleep apnea shortly after returning from deployment in 2007, and his contention that these disabilities were caused or aggravated by his service-connected PTSD, a VA examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to assess the etiology of the Veteran’s fatigue, pain, and gastrointestinal symptoms, and the existence of any diagnosed disability associated with those symptoms. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished to assess the existence of any of the claimed disabilities, including metabolic testing to determine the cause of the Veteran’s fatigue. After a thorough review of all evidence in the claims file, to include the Veteran’s lay statements and testimony, the examiner should address the following: (a.) Can the Veteran’s fatigue, pain, and/or gastrointestinal symptoms be attributed to a known clinical diagnosis (other than a symptom-based diagnosis?) The examiner must specifically address the private physician’s letters suggesting a possible diagnosis of chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. The examiner is asked to provide a thorough discussion of whether diagnoses of fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome are warranted, with attention to the pertinent diagnostic criteria. (b.) For any diagnosed disability, the examiner is asked to opine whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran’s disability was caused by or incurred during service, to include whether it first manifested during service. i. The examiner is also asked to provide an opinion as to whether the Veteran’s fatigue was caused or aggravated by depression, a symptom of his service-connected PTSD. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the fatigue was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. (c.) Are the Veteran’s fatigue, pain, and/or gastrointestinal symptoms a manifestation of: (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology; or (iv) a disease with a clear and specific etiology? A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology. A complete rationale for all opinions must be provided. 2. Provide the Veteran with a new VA examination to determine the etiology of his skin disorder. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements and testimony, the VA examiner must provide an opinion as to whether it is at least as likely as not that the skin disorder was caused or incurred as a result of his active duty service, to include his in-service exposure to environmental toxins. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology. 3. Provide the Veteran with a VA examination to determine the etiology of his high blood pressure and sleep apnea. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements and testimony, the VA examiner must provide the following opinions: (a.) Is it at least as likely as not that the Veteran’s high blood pressure and/or sleep apnea were caused or incurred as a result of his active duty service? (b.) Is it at least as likely as not that the Veteran’s high blood pressure and/or sleep apnea were caused or aggravated beyond their natural progression by the Veteran’s service-connected PTSD? A complete rationale for all opinions must be provided. The examiner is advised that a finding that the Veteran’s claimed disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. The examiner is advised that the Veteran is competent to report observable symptomatology. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.