Citation Nr: 21026132 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-08 823 DATE: April 29, 2021 REMANDED Service connection for shortness of breath, to include allergic rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2000 to February 2008, during which he was deployed to the Persian Gulf area. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at an October 2019 Board hearing. A complete transcript is of record. A December 2019 Board decision denied the Veteran’s service connection claim for shortness of breath. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court vacated the part of the December 2019 Board decision that denied the service connection claim for shortness of breath and remanded the claim for additional development in compliance with a Joint Motion for Partial Remand (JMPR). The Board notes that the December 2019 Board decision also granted the service connection claims for acne and for gastroesophageal reflux disease (GERD) and denied the service connection claim for a bowel condition. The Court found that the part of the decision that granted the service connection claims for acne and for GERD were favorable and did not disturb those decisions. Regarding the service connection claim for a bowel condition, the Court noted that the Veteran did not challenge that part of the Board’s decision. As such, the only remaining issue on appeal is the service connection claim for shortness of breath. In the JMPR, the parties found that the May 2019 VA sinusitis and Gulf War examinations were inadequate because both examiners provided insufficient rationales to support their respective opinions and failed to adequately address the Veteran’s relevant medical history. Per the JMPR, the May 2019 VA Gulf War examination report contained no discussion of the facts of the Veteran’s case. Instead, the examiner cited to a medical treatise that stated that there was insufficient evidence to determine whether an association existed between deployment to the Gulf War and respiratory conditions. The parties agreed that the medical opinion was inadequate because the examiner did not relate the general medical article, to the facts of the Veteran’s case. The JMPR also pointed out that the May 2019 sinusitis examination report noted that the service treatment records (STRs) were negative for respiratory/nasal complaints and provided a negative nexus opinion. However, the parties found that the examiner’s opinion was inadequate because it relied on an inaccurate factual premise that there were no in-service respiratory or nasal complaints. The Court noted that the Veteran’s STRs contained a January 2001 treatment note that showed the Veteran complained of difficulty breathing. The Court also found that the Board failed to provide an adequate statement of reasons and bases because it failed to address the reasonably raised issue of service connection for allergic rhinitis. The Court explained that although the Veteran filed a service connection claim for shortness of breath, the May 2019 VA sinusitis examiner diagnosed him with allergic rhinitis. The examiner also opined that the Veteran’s symptoms of nasal congestion and obstruction are due to allergic rhinitis and the likely cause of his shortness of breath. The Court once again noted the January 2001 STR, that documented a complaint of difficulty breathing. Given the Veteran’s claim for shortness of breath, the in-service documentation of the symptom, and the VA examiner’s attribution of the symptom to allergic rhinitis, the evidence reasonably raised the issue of service connection for allergic rhinitis. The Court found that remand was warranted for the Board to address the issue of service connection for allergic rhinitis. Accordingly, an examination should be scheduled to address the concerns laid out by the JMPR. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to the May 2019 Gulf War examination and May 2019 sinusitis examination. If the examiner determines that an additional physical examination of the Veteran is necessary to answer the Board’s questions, one should be scheduled. The examiner’s attention is directed to the Court’s JMPR (CAVC Decision received 11/23/20), which explains why the previous opinions were found to be inadequate. The examiner should relate any medical literature cited to, to the facts of the Veteran’s case. The examiner should answer the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s complaints of shortness of breath constitute a symptom of a undiagnosed illness or a medically unexplained chronic multisymptom illness as a result of the Veteran’s Gulf War service? Why or why not? (b) ) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s complaints of shortness of breath constitute a respiratory disability that is proximately due to or caused by his active duty service? Why or why not? The examiner’s attention is directed to a January 8, 2001 STR that documented a complaint of difficulty breathing. The examiner should explain how the Veteran’s in-service complaint of difficulty breathing is related to his current complaints of shortness of breath. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s allergic rhinitis began in or was otherwise caused by the Veteran’s active military service? Why or why not? The examiner’s attention is directed to pages 4-5 of the Court’s JMPR (CAVC Decision received 11/23/20), which explains why service connection for allergic rhinitis should be considered. The examiner should discuss the Veteran’s in-service complaint of difficulty breathing and the May 2019 VA examiner’s attribution of the symptom to allergic rhinitis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.