Citation Nr: 21061001 Decision Date: 09/29/21 Archive Date: 09/29/21 DOCKET NO. 16-39 444 DATE: September 29, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include allergic rhinitis and to include as due to burn pit exposure and particulate matter exposure, is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with major depression and symptom of sleep disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD with major depression and alcohol abuse and/or service-connected residuals of traumatic brain injury (TBI), is remanded. FINDING OF FACT 1. Based on credible assertions and the Veteran's service in Afghanistan and Iraq, and resolving all doubt in his favor, the Veteran is presumed to have been exposed to burn pits and particulate matter while in service in Afghanistan and Iraq. 2. The Veteran's allergic rhinitis is presumed related to his exposure to burn pits and particulate matter which occurred during his active service in Afghanistan and Iraq. CONCLUSION OF LAW The criteria for service connection for allergic rhinitis, as secondary to burn pit exposure and particulate matter exposure, have been meet. 38 U.S.C. §§ 1110, 1112, 1131,1137, 5107(b): 38 C.F.R. §§ 3.102, 3.303, 3.320 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army National Guard from July 2003 to August 2003, March 2004 to July 2005, and October 2005 to August 2007, to include service in Southwest Asia theater and Afghanistan. The Veteran testified in a hearing before a Veterans Law Judge in July 2019 and the transcript has been associated with the claims file. However, the Veterans Law Judge is no longer able to participate in this matter. As a result, the Board sent an August 2021correspondence to the Veteran informing the Veteran of the right to request another optional Board hearing. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The correspondence required a response within 30 days of the date of the letter. After 30 days, there has been no response from the Veteran. Therefore, the Board finds that the Veteran does not want another Board hearing and will proceed with the appeal Entitlement to service connection for a respiratory disorder, to include allergic rhinitis and to include as due to burn pit exposure and particulate matter exposure, is granted. The Veteran asserts that his respiratory disorder, diagnosed as allergic rhinitis, is due to burn pit exposure in Afghanistan and Iraq. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has provided an alternative theory of entitlement to service connection for his respiratory disorder, which is that his respiratory disorder, to include allergic rhinitis, is due to burn pit exposure and particulate matter exposure in service. Specifically, the Veteran asserts that he maintained burn pits and worked near burn pits during service in Afghanistan. The law provides that, if a veteran was exposed to particulate matter, to include as the result of burn pits, in Southwest Asia theater, Afghanistan, Syria, and Djibouti, certain listed diseases shall be service connected if the requirements of 38 C.F.R. § 3.320(a)(4) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 38 C.F.R. § 3.320(a)(3) are also satisfied. Section § 3.320 (a)(4)(i) of Title 38 of the C.F.R. requires any period of active service in Southwest Asia theater of operations as defined in § 3.317(e)(2) during the Persian Gulf War period. Southwest Asia theater during the Persian Gulf War includes operations service in Iraq, Kuwait, and Saudi Arabia from August 2, 1990 through date to be prescribed by Presidential proclamation or law. 38 C.F.R. §§ 3.2(i), 3.317(e)(2). 38 C.F.R. § 3.320(a)(4)(ii) requires any period of service of active military, naval, or air service in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001 during the Persian Gulf War as defined in § 3.2(i). The list of diseases afforded this presumption was established by August 2021 amendment adding 38 C.F.R. § 3.320 to include asthma, rhinitis, and sinusitis, to include rhinosinusitis. This amendment is applicable to claims received by VA on or after August 5, 2021, and to claims pending before VA on that date, as well as certain previously denied claims. See 75 Fed. Reg. 42,724 (Aug. 5, 2021). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). A June 2005 memorandum for record in the military personnel records states that the Veteran was deployed in support of Operation Enduring Freedom to Afghanistan from June 2004 to May 2005. An October 2006 memorandum for record in the military personnel records states that the Veteran mobilized in support of Operation Iraqi Freedom in October 2005 and deployed to Iraq. A March 2006 Department of U.S. Army Human Resources Command memorandum orders the Veteran to report on in June 2006 for duty in Iraq and to return from duty in June 2007. In a February 2005 service treatment record (STR) post-deployment health assessment, the Veteran indicated he experienced a chronic cough and runny nose. In an April 2006 STR, the Veteran complained of cough, shortness of breath, and decreased stamina. In a July 2007 STR post-deployment health assessment, the Veteran indicated that he experienced coughing, difficulty breathing, and tiredness after sleeping. The Veteran indicated that he was often exposed to industrial pollution. The Veteran submitted an October 2020 lay statement from M.R. M.R. stated that the Veteran began to complain about his ability to breath and fatigue. M.R. stated that he observed the Veteran to snore, cough, and make gagging or gasping noises. M.R. stated that one of the guard towers he and the Veteran were assigned was in close proximity to the burn pit on site. M.R. stated that they burned trash and human waste into the burn pit. He stated that the smoke from the burn pit blew through the towers and through their sleeping area. M.R. believes that the burn pit may have led to respiratory disorders in himself and the Veteran. In an October 2020 lay statement, the Veteran stated that he experiences a chronic "stuffy and runny nose." He stated that he had an episode in service. He stated that during service he was regularly exposed to burn pits and he was assigned to work and maintain the burn pit. He stated that he began having difficulty with breathing and sinus during service. A September 2015 VA treatment record demonstrates the Veteran has a diagnosis of allergic rhinitis and has been observed to have significant congestion and is treated with daily medication. The September 2020 VA examiner stated the Veteran has a diagnosis of allergic rhinitis. The examiner clarified that the Veteran sinusitis is acute and was resolved with antibiotics. Based on the Veteran's credible assertions, and supporting evidence indicating the Veteran served in Afghanistan and Iraq, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is presumed to have been exposed to particulate matter during his active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Further, as the record demonstrates that he was exposed to burn pits, the presumption of service connection for allergic rhinitis attaches. 38 C.F.R. § 3.320. Therefore, service connection for allergic rhinitis is warranted. REASONS FOR REMAND Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD with major depression and symptom of sleep disorder, is remanded. In a July 2007 STR post-deployment health assessment, the Veteran indicated that he was tired after sleeping. Here, the Veteran submitted an October 2020 lay statement stating that the Veteran's symptoms of sleep apnea began during service in Southwest Asia theater. B.T. stated that he observed the Veteran to snore and to stop breathing and then gasp for air during sleep. None of the prior VA examiners addressed direct service connection, therefore, an addendum VA opinion, or new VA examination, is necessary. Further, the January 2020 VA examiner opined that the Veteran's PTSD did not cause or aggravate the Veteran's sleep apnea. However, the examiner did not specifically address the Veteran's PTSD symptom of a sleep disorder and if this symptom caused or aggravated the Veteran's sleep apnea. Therefore, an addendum VA opinion, or a new VA examination, is necessary. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD with major depression and/or service-connected residuals of TBI, is remanded. In a November 2007 VA treatment record, the medical provider observed the Veteran to have an elevated blood pressure. The medical provider urged the Veteran to continue monitoring for borderline hypertension. Here, in an October 2020 statement, the Veteran asserted that the January 2020 VA examiner found that the Veteran's alcohol use and sleep disorder is the direct result of efforts to control or cope with service-connected PTSD, which should be weighed equally with his other risk factors for hypertension, which the examiner listed as family history, poor diet, and tobacco use. In the October 2020 statement, the Veteran also asserts that his hypertension had its onset in during service. The Veteran stated that STRs show the Veteran to have elevated blood pressure from 2003 to 2006 during active duty. Also, the Veteran asserted that a November 2007 VA treatment record shows the Veteran to have an elevated blood pressure three months after separation from service. Further, the August 2020 VA examiner opined that the Veteran's alcohol abuse, a symptom of the Veteran's PTSD, did not cause or aggravate the Veteran's hypertension, however, the examiner did not provide a rationale for the alcohol abuse aggravation of hypertension. As a result, an addendum VA opinion, or a new VA examination if needed, is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, and if necessary, an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran's sleep apnea. The examiner must opine whether it is as likely as not that sleep apnea is related to the Veteran's service, to include exposure to burn pits and in-service July 2007 complaint of tiredness after sleeping. The examiner must also opine as to whether it is at least as likely as not that (i.e., a 50 percent or greater probability): The Veteran's sleep apnea was caused by the PTSD symptom of sleep disorder, or The Veteran's sleep apnea was underwent an incremental increase (aggravated), regardless of permanence, by the PTSD symptom of sleep disorder. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. 2. The examiner must provide a well-reasoned response to the above inquiry and must specifically discuss the Veteran's contentions and lay statements from other servicemen related to the Veteran's onset of symptoms for sleep apnea and exposure to burn pits 3. Obtain an addendum opinion, and if necessary, an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran's hypertension. The examiner must opine whether it is as likely as not that hypertension is related to or had its onset during the Veteran's service. The examiner must address any in-service blood pressure findings and November 2007 elevated blood pressure with subsequent development of hypertension. The examiner must also opine as to whether it is at least as likely as not that (i.e., a 50 percent or greater probability): The Veteran's hypertension was caused by the PTSD symptom of alcohol abuse, or The Veteran's hypertension underwent an incremental increase (aggravated), regardless of permanence, by his PTSD symptom of alcohol abuse. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The examiner must address the December 2015 VA examiner's statement that excess alcohol intake is associated with the development of hypertension in the opinion. (Continued on the next page) 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. Yvette R. White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.