Citation Nr: 21031994 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 19-27 288 DATE: May 25, 2021 REMANDED Entitlement to service connection for a nose/sinus disability (claimed as allergies) is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a perforated right eardrum is remanded. Entitlement to service connection for bilateral shin splints is remanded. Entitlement to service connection for a left arm skin lesion is remanded. Entitlement to service connection for a cervical spine disability is remanded. REFERRED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) was raised on a June 2018 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran served on active duty from April 2007 to August 2007 and from May 2008 to October 2008. He also had additional service in the Air Force National Guard (which he initially entered in March 2002 and ultimately separated from in September 2016), including a verified period of active duty for training (ACDUTRA) from October 2002 to July 2003. VA has verified through the Veterans Affairs/Department of Defense Identity Repository (VADIR) database that the Veteran was deployed to Iraq from May 2008 to September 2008 [thereby triggering the applicability of 38 C.F.R. § 3.317 for his active duty service in the Southwest Asia theater of operations]. On remand, the specific dates of ACDUTRA and inactive duty training (INACDUTRA) performed by the Veteran must be verified for all periods of his National Guard service. 1. Entitlement to service connection for a nose/sinus disability (claimed as allergies). The Veteran contends that he currently has a nose/sinus disability (claimed as allergies) which may have resulted from his military service, including as a result of exposure to burn pits while serving on active duty in Iraq. The Veteran was treated during his active duty service for an upper respiratory infection (URI) with bronchitis (in August 2008) and for pneumonia (in October 2008). He was also treated during his National Guard service for bronchitis (in October 2002, December 2010, March 2011, May 2012, and January 2014), for mild sinus congestion (in December 2002), for wheezing (in June 2003), for a URI (in June 2003 and December 2010), for sinusitis (in January 2013), for reactive airway disease with wheezing (in January 2014), and for probable COPD (in March 2015). Post-service, at a March 2018 VA nose and sinus examination, the Veteran was diagnosed with allergic rhinitis (with no diagnosis date noted). He reported that it had been "a couple of years" since his chest "started jacking up" but did not give further details regarding symptoms. The VA examiner opined that it was considered less likely than not that the Veteran's allergic rhinitis was etiologically related to his Gulf War service. For rationale, the VA examiner stated: "Allergic Rhinitis is a specific and diagnosable condition that does not qualify as an undiagnosed or unexplained multi-symptom illness....No increased risk of Allergic Rhinitis was found to be associated with service in the Gulf War." However, no opinion was provided to address whether there was any relationship between the Veteran's current allergic rhinitis and any other incident occurring during his active duty service or occurring in the line of duty during his National Guard service. In a July 2019 addendum, the March 2018 VA nose and sinus examiner opined that the Veteran's allergic rhinitis was less likely than not incurred in or caused by the Veteran's burn pit exposure during his active duty service in Iraq. For rationale, the VA examiner noted that his diagnosis manifested "years following exposure" and that insufficient evidence prevented an Institute of Medicine (IOM) committee from developing firm conclusions about what long-term health effects might be seen in service members exposed to burn pits. The VA examiner also added that the Veteran had a 20-year one-pack per day smoking history. However, once again, no opinion was provided to address whether there was any relationship between the Veteran's current allergic rhinitis and any other incident occurring during his active duty service or occurring in the line of duty during his National Guard service. On remand, after all specific dates of ACDUTRA and INACDUTRA performed by the Veteran during his National Guard service have been verified, and after any outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current nose/sinus disability (including allergic rhinitis). 2. Entitlement to service connection for COPD. The Veteran contends that he currently has COPD which may have resulted from his military service, including as a result of exposure to burn pits while serving on active duty in Iraq. As noted above, the Veteran was treated during his active duty service for a URI with bronchitis (in August 2008) and for pneumonia (in October 2008). He was also treated during his National Guard service for bronchitis (in October 2002, December 2010, March 2011, May 2012, and January 2014), for mild sinus congestion (in December 2002), for wheezing (in June 2003), for a URI (in June 2003 and December 2010), for sinusitis (in January 2013), for reactive airway disease with wheezing (in January 2014), and for probable COPD (in March 2015). Post-service, on a July 2017 Respiratory Conditions Disability Benefits Questionnaire (DBQ), it was noted that the Veteran had a diagnosis of COPD (with no diagnosis date noted). At a March 2018 VA respiratory examination, the Veteran was diagnosed with COPD (with no diagnosis date noted). He reported that his COPD was officially diagnosed just in the past year, but that he had gotten bronchitis while in Iraq and came home with pneumonia and ever since then he had been "coughing up brown stuff." The VA examiner opined that it was considered less likely than not that the Veteran's COPD was etiologically related to his Gulf War service. For rationale, the VA examiner stated: "COPD is a specific and diagnosable condition that does not qualify as an undiagnosed or unexplained multi-symptom illness....No increased risk of COPD was found to be associated with service in the Gulf War." However, no opinion was provided to address whether there was any relationship between the Veteran's current COPD and any other incident occurring during his active duty service or occurring in the line of duty during his National Guard service. In a July 2019 addendum, the March 2018 VA respiratory examiner opined that the Veteran's COPD was less likely than not incurred in or caused by the Veteran's burn pit exposure during his active duty service in Iraq. For rationale, the VA examiner noted that his diagnosis manifested "years following exposure" and that insufficient evidence prevented an IOM committee from developing firm conclusions about what long-term health effects might be seen in service members exposed to burn pits. The VA examiner also added that the Veteran had a 20-year one-pack per day smoking history. However, once again, no opinion was provided to address whether there was any relationship between the Veteran's current COPD and any other incident occurring during his active duty service or occurring in the line of duty during his National Guard service. On remand, after all specific dates of ACDUTRA and INACDUTRA performed by the Veteran during his National Guard service have been verified, and after any outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current respiratory disability (including COPD). 3. Entitlement to service connection for hypertension. The Veteran contends that he currently has hypertension which may have resulted from his military service, including as a result of exposure to burn pits while serving on active duty in Iraq. The Veteran indicated on a January 2003 National Guard Report of Medical History that he had a history of rapid heartbeat when exercising, and he was treated during his National Guard service for hypertension (in July 2013, August 2013, November 2013, January 2014, July 2014, August 2014, and March 2015) and for intermittent heart palpitations (in April 2016). Post-service, on an August 2017 Hypertension DBQ, it was noted that the Veteran had a diagnosis of hypertension (with a diagnosis date of July 2013). At a March 2018 VA hypertension examination, the Veteran was diagnosed with hypertension (with a diagnosis date of 2014). He reported being diagnosed with hypertension "a few years ago[.]" The VA examiner opined that it was considered less likely than not that the Veteran's hypertension was etiologically related to his Gulf War service. For rationale, the VA examiner stated: "Hypertension is a specific and diagnosable condition that does not qualify as an undiagnosed or unexplained multi-symptom illness....No increased risk of hypertension was found to be associated with service in the Gulf War." However, no opinion was provided to address whether there was any relationship between the Veteran's current hypertension and any other incident occurring during his active duty service or occurring in the line of duty during his National Guard service. In a July 2019 addendum, the March 2018 VA hypertension examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the Veteran's burn pit exposure during his active duty service in Iraq. For rationale, the VA examiner noted that his diagnosis manifested "years following exposure" and that insufficient evidence prevented an IOM committee from developing firm conclusions about what long-term health effects might be seen in service members exposed to burn pits. The VA examiner also added that the Veteran had a 20-year one-pack per day smoking history. However, once again, no opinion was provided to address whether there was any relationship between the Veteran's current hypertension and any other incident occurring during his active duty service or occurring in the line of duty during his National Guard service. On remand, after all specific dates of ACDUTRA and INACDUTRA performed by the Veteran during his National Guard service have been verified, and after any outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current cardiovascular disability (including hypertension). 4. Entitlement to service connection for sleep apnea. The Veteran contends that he currently has sleep apnea which may have resulted from his military service, including as a result of exposure to burn pits while serving on active duty in Iraq. The Veteran indicated on a January 2003 National Guard Report of Medical History that he had a history of trouble sleeping, and he was treated during his National Guard service for sleep difficulties (in May 2003 and January 2015). Post-service, on a July 2017 Sleep Apnea DBQ, it was noted that the Veteran had a diagnosis of obstructive sleep apnea (with no diagnosis date noted) and that a sleep study had been performed in May 2017 at the Texas Pulmonary Sleep Center to confirm the diagnosis. In July 2019, the March 2018 VA respiratory examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the Veteran's burn pit exposure during his active duty service in Iraq. For rationale, the VA examiner noted that his diagnosis manifested "years following exposure" and that insufficient evidence prevented an IOM committee from developing firm conclusions about what long-term health effects might be seen in service members exposed to burn pits. The VA examiner also added that the Veteran had a 20-year one-pack per day smoking history. However, no opinion was provided to address whether there was any relationship between the Veteran's current sleep apnea and any other incident occurring during his active duty service or occurring in the line of duty during his National Guard service. On remand, after all specific dates of ACDUTRA and INACDUTRA performed by the Veteran during his National Guard service have been verified, and after any outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current sleep disability (including sleep apnea). 5. Entitlement to service connection for a perforated right eardrum. The Veteran contends that he currently has a perforated right eardrum which may have resulted from his military service, including as a result of exposure to burn pits while serving on active duty in Iraq. The Veteran indicated on a February 2002 National Guard Report of Medical History that he had a history of tubes in his ears at age 2, and he was treated during his National Guard service for otitis externa (in November 2004) and for right ear cerumen deposition and perforated tympanic membrane (in August 2013). Post-service, at a September 2017 VA audiology examination, the Veteran reported that he had a hole in his right eardrum and that he had a perforated eardrum sometime in 2008 ("It happened sometime in Iraq I think"). No opinion was provided to address whether there was any relationship between the Veteran's claimed perforated right eardrum and any incident during his active duty service or any incident occurring in the line of duty during his National Guard service. On remand, after all specific dates of ACDUTRA and INACDUTRA performed by the Veteran during his National Guard service have been verified, and after any outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current right eardrum disability (including the claimed perforated right eardrum). 6. Entitlement to service connection for bilateral shin splints. The Veteran contends that he currently has bilateral shin splints which may have resulted from his military service, including as a result of exposure to burn pits while serving on active duty in Iraq. The Veteran was treated during his National Guard service for bilateral shin splints (in December 2002, January 2003, March 2003, April 2003, and April 2009). Post-service, the Veteran has alleged that he continues to have bilateral shin splints. He has never been afforded a VA examination for this condition, and there are no opinions currently of record which address whether there is any relationship between the Veteran's claimed bilateral shin splints and any incident during his active duty service or any incident occurring in the line of duty during his National Guard service. On remand, after all specific dates of ACDUTRA and INACDUTRA performed by the Veteran during his National Guard service have been verified, and after any outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current bilateral shin disability (including the claimed bilateral shin splints). 7. Entitlement to service connection for a left arm skin lesion. The Veteran contends that he currently has a left arm skin lesion which may have resulted from his military service, including as a result of exposure to burn pits while serving on active duty in Iraq. The Veteran was treated during his National Guard service for seborrheic keratosis on his left arm (in August 2013). Post-service, the Veteran has alleged that he continues to have a left arm skin lesion. He has never been afforded a VA examination for this condition, and there are no opinions currently of record which address whether there is any relationship between the Veteran's claimed left arm skin lesion and any incident during his active duty service or any incident occurring in the line of duty during his National Guard service. On remand, after all specific dates of ACDUTRA and INACDUTRA performed by the Veteran during his National Guard service have been verified, and after any outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current left arm skin disability (including the claimed left arm skin lesion). 8. Entitlement to service connection for a cervical spine disability. The Veteran contends that he currently has a cervical spine disability which may have resulted from his military service, including as a result of exposure to burn pits while serving on active duty in Iraq. The Veteran was treated during his National Guard service for cervical stenosis with mild myelopathy and cervical radiculopathy (as shown on a cervical spine MRI referenced in May 2016) and underwent an anterior cervical discectomy and fusion at C5-C6 and C6-C7 (in June 2016). Post-service, on a March 2017 Neck (Cervical Spine) Conditions DBQ, it was noted that the Veteran had a diagnosis of cervical stenosis and myelopathy, cervical radiculopathy, and degenerative cervical disc disease (with no diagnosis date noted) and that his neck pain had increased to severe levels in early June 2016 which led to surgery being performed. It was also noted that he had a constant ache where the surgery was performed. The Veteran has never been afforded a VA examination for this condition, and there are no opinions currently of record which address whether there is any relationship between the Veteran's claimed cervical spine disability and any incident during his active duty service or any incident occurring in the line of duty during his National Guard service. On remand, after all specific dates of ACDUTRA and INACDUTRA performed by the Veteran during his National Guard service have been verified, and after any outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current cervical spine disability. The matters are REMANDED for the following actions: 1. Verify through official sources the specific dates of ACDUTRA and INACDUTRA performed by the Veteran for all periods of his National Guard service. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities on appeal, including Texas Pulmonary Sleep Center (who performed a sleep study in May 2017, as outlined above). Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 3. Obtain any VA treatment records for the Veteran. Any negative search result should be noted in the record and communicated to the Veteran. 4. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians (or telehealth interviews if in-person examinations are not feasible) to determine the nature and etiology of any current nose/sinus disability (including allergic rhinitis), respiratory disability (including COPD), cardiovascular disability (including hypertension), sleep disability (including sleep apnea), right eardrum disability (including the claimed perforated right eardrum), bilateral shin disability (including the claimed bilateral shin splints), left arm skin disability (including the claimed left arm skin lesion), and cervical spine disability. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests should be performed, and the results reported. The examiners must first identify all valid diagnoses of these disabilities present at any time during the pendency of the appeal period (to include pain alone which results in functional impairment of earning capacity). Next, for each such disability that is diagnosed, the examiners must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active duty service, any disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or any injury incurred or aggravated in the line of duty during a period of INACDUTRA (with specific consideration given to all pertinent treatment records during his service and his allegations of continuity of symptomatology since service). Finally, for any manifestations that are not associated with a diagnosis, the examiners must provide an opinion as to whether such manifestations represent an undiagnosed illness (where signs or symptoms cannot be attributed to known medical diagnoses) or a medically unexplained chronic multisymptom illness related to the Veteran's verified active duty service in the Southwest Asia theater of operations. A complete rationale for all opinions must be provided. If the clinicians cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinicians must provide the reasons why an opinion would require speculation. The clinicians must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinicians must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, Counsel The Board's decision in this case is binding only with respect to the instant matter(s) decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.