Citation Nr: 21024706 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-06 137A DATE: April 23, 2021 ORDER Entitlement to service connection for residuals of traumatic brain injury (TBI) is granted. Entitlement to service connection for sinusitis is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right shoulder 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 eye disability is remanded. Entitlement to service connection for a left kidney disability is remanded. FINDINGS OF FACT 1. The Veteran’s TBI is a result of an in-service event, illness, or event. 2. The evidence reasonably shows the Veteran’s chronic sinusitis is a result of an in-service event, illness, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of TBI have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (a). 2. The criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 1101, 1110, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2007 to May 2009; and from November 2010 to January 2012. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Following an issuance of the statement of the case (SOC) in December 2017, the Veteran submitted his substantive appeal. In his February 2018 substantive appeal, he limited his appeal only to the TBI issue. In April 2021, the Veteran testified before the undersigned Veterans Law Judge and indicated that he wished to continue his appeal to the other issues addressed in the December 2017 SOC as well; and provided testimony. The Board recognizes that the United States Court of Appeals for Veterans Claims (Court) has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). As such, the Board will take jurisdiction of all of the issues that were addressed in the December 2017 SOC. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests an organic disease of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Section 1154(b) provides that, if a Veteran engaged in combat with the enemy in service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in such combat will be accepted as sufficient proof of service connection, if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. VA shall resolve every reasonable doubt in this regard in favor of the Veteran; however, service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b); see also 38 C.F.R. § 3.304 (d). 1. Entitlement to service connection for residuals of TBI The Veteran contends that he has a current TBI diagnosis and that, while in service, he suffered a TBI as a result of an Improvised Explosive Device (IED) blast. In September 2011, the Veteran was involved in an IED explosion. The Veteran states that he was uncertain whether he lost consciousness during the direct strike to his motor vehicle. He states he had nausea and vomiting, a headache for about 24 hours, sensitivity to light, and sensitivity to loud noises. He indicated that he still experiences headaches at least once a week and is sensitive to light when he has a headache. He also indicated that he also has some difficulty with concentration and memory loss. A September 2011 service treatment record (STR) documents a mild TBI. During the March 2017 VA examination, the examiner indicated that the Veteran had sustained a mild TBI that has resolved completely except for headaches. The Veteran has reported as well as testified that he continues to experience, among others, TBI residuals to include memory loss, headaches, nausea, vomiting, and dizziness. In consideration of the time, place, and circumstances of his service as a Veteran who engaged in combat with the enemy, and as the evidence of record is consistent with the circumstances, conditions, and hardships of his service, the Veteran is entitled to a grant of service connection for residuals of a TBI. 38 U.S.C. § 1154(b). As such, service connection is granted for TBI. 2. Entitlement to service connection for sinusitis The Veteran is seeking to establish service connection for sinusitis. He contends that he developed sinus problems during active duty service, to include his exposure to burn pits. After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board affords the Veteran reasonable doubt and grants service connection for sinusitis. With regard to a present disability, post-service treatment records show that the Veteran has a diagnosis of sinusitis. As such, the first element of service connection is met. With regard to an in-service incurrence of disease, an April 2008 STR documents the Veteran was seen for sinusitis. As such, the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran’s sinusitis and service, the Board finds this final element has been met. During the March 2017 VA examination, the examiner indicated in part that the Veteran’s current sinusitis was not due to active duty. He stated that the Veteran was seen once in service and if he were experiencing chronic sinusitis, he would have been seen more often. The Veteran has continuously reported that although he was not seen more often in service, he has experienced continuous sinusitis symptomatology. He is competent to report such symptoms and the Board has no reason to not find him credible. As the evidence is in equipoise, the Board finds service connection for sinusitis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. The Veteran asserts that he has lumbar spine and right shoulder disabilities as a result of the in-service IED blast. He was afforded VA examinations pertaining to his lumbar spine and right shoulder. The examiner essentially stated that the disabilities were not due to service because no chronic lumbar spine and right shoulder disabilities were shown in service. The examiner did not adequately address whether or not the Veteran’s current disabilities were a result of the well-documented IED blast or consider the Veteran’s statements of continuous lumbar spine and right shoulder symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, remand is warranted for adequate VA examination(s) and opinion(s).   3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. 5. Entitlement to service connection for a left eye disability is remanded. 6. Entitlement to service connection for a left kidney disability is remanded. The Veteran asserts that he has disabilities of the knees, left eye, and left kidney that are related to his active service. He has not been provided VA examinations. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. Although the Veteran’s STRs are silent as to any chronic knee, left eye, or left kidney disabilities, he has related these disabilities to the IED blasts. Based on the foregoing evidence, the low threshold for obtaining VA examination(s) regarding the Veteran’s claims have been met in this case and a remand is necessary in order for such to be accomplished. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations with appropriate VA providers to address whether it was at least as likely as not (50 percent or greater probability) that his lumbar spine, right shoulder, bilateral knee, left eye, and left kidney disabilities are due to in-service events, disease, or injuries, to include the well-documented IED blasts. The examiner(s) must provide adequate reasoning/rationale for all opinions provided. For the lumbar spine, right shoulder, and bilateral knee disabilities, the examiner(s) must consider functional impairment as a current diagnosis/disability. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.