Citation Nr: 22015013 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-30 796 DATE: March 16, 2022 ORDER Entitlement to service connection for asthma is granted. Entitlement to service connection for chronic sinusitis is granted. REMANDED Entitlement to service connection for a low back disorder, to include a lumbar strain on a presumptive basis pursuant to 38 U.S.C. § 1117 is remanded. Entitlement to service connection for left lower extremity radiculopathy pursuant to 38 U.S.C. § 1117 is remanded. Entitlement to service connection for right lower extremity radiculopathy pursuant to 38 U.S.C. § 1117 is remanded. Entitlement to service connection for erectile dysfunction pursuant to 38 U.S.C. § 1117 is remanded. FINDINGS OF FACT 1. The Veteran has verified service in Southwest Asia during the Gulf War. 2. The Veteran has asthma which manifested within 10 years following Southwest Asia service. 3. The Veteran has chronic sinusitis which manifested within 10 years following Southwest Asia service. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma are met. 38 U.S.C. §§ 1110, 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. 2. The criteria for service connection for chronic sinusitis are met. 38 U.S.C. §§ 1110, 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1992 including service in the Southwest Asia theater of military operations during the Persian Gulf War. These matters are before the Board of Veterans' Appeals (Board) on appeal of a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board, in pertinent part, denied entitlement to service connection for a lumbar strain, bilateral lower extremity radiculopathy, a sinus disability, asthma, erectile dysfunction, bilateral shin splints, fibromyalgia, irritable bowel syndrome, chronic fatigue syndrome and entitlement to special monthly compensation based on loss of use of a creative organ. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Memorandum Decision, the Court dismissed the Veteran's appeals with regard to the issues of entitlement to service connection for bilateral shin splints, fibromyalgia, irritable bowel syndrome, chronic fatigue syndrome and entitlement to special monthly compensation for loss of use of a creative organ. The Court affirmed the Board's March 2020 decision denying entitlement to service connection for a lumbar spine disorder, a sinus disorder, asthma, bilateral lower extremity radiculopathy and erectile dysfunction on a direct basis but vacated the Board's decision denying entitlement to service connection for the same disabilities on a presumptive basis under 38 U.S.C. § 1117. The Court remanded these issues to the Board for additional consideration. Service Connection Asthma and Chronic Sinusitis The Veteran contends that he has asthma and chronic sinusitis which are related to his active-duty service. Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Effective August 5, 2021, VA added 38 C.F.R. § 3.320 which, in relevant part, allows for a presumption of exposure to fine, particulate matter for Veterans with service in Southwest Asia during the Gulf War and for presumptive service connection for asthma and sinusitis which are manifested within 10 years of the cessation of a period of service on which presumed exposure to fine, particulate matter is based. 38 C.F.R. § 3.320. If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021). As discussed in the March 2020 Board decision, the Veteran reported that his unit was in Saudi Arabia and Kuwait from November 1990 to April 1991. A Form DA 2-1, labeled "Temporary," reflects awards of the Southwest Asia Service Medal and the Southwest Asia Service Medal with Bronze Service Star (2). The Board conceded service in Southwest Asia on this basis. Accordingly, exposure to fine particulate matter is also conceded. The service treatment records are silent for complaints or diagnosis of a respiratory disorder or sinusitis. On private examination in January 2018, Dr. P.Y. diagnosed the Veteran with "respiratory insufficiency (dyspnea) and chronic sinusitis. Dr. P.Y. opined that respiratory insufficiency and chronic sinusitis were "related to Gulf War Syndrome per the presumptions (undiagnosed illness)" and had persisted since service. On VA respiratory examination in June 2018, the Veteran was diagnosed with asthma. The examiner noted a history of difficulty breathing and inability to catch breath with walking every other week since approximately 1993. On VA sinus examination in June 2018, the examiner found no current diagnosis of a sinus disorder. However, the examiner noted a history of first experiencing sinusitis in 1998 treated with antibiotics, and current symptoms of nasal congestion on five out of seven days per week. As noted above, the Veteran served in Southwest Asia during the Gulf War and is presumed to have been exposed to fine, particulate matter. The record contains competent diagnoses of asthma and chronic sinusitis. The available evidence indicates asthma and chronic sinusitis were manifested within 10 years of his Southwest Asia service. The June 2018 VA examiner noted a history of symptoms of these conditions beginning in 1993 and 1998 respectively, within 10 years of the Veteran's service in Southwest Asia. Accordingly, asthma and chronic sinusitis are presumed to have been incurred in service. Accordingly, entitlement to service connection for asthma and chronic sinusitis is granted. REASONS FOR REMAND Service Connection Low Back Disorder, Bilateral Lower Extremity Radiculopathy, and Erectile Dysfunction In its July 2021 Memorandum Decision, the Court remanded these issues for consideration of presumptive service connection under 38 U.S.C. § 1117. The Court found that the Board erred in failing to consider whether the Veteran's conditions were manifestations of a medically unexplained chronic multisymptom illness (MUCMI) characterized by overlapping symptoms or signs or whether either the etiology or pathophysiology of those conditions was partially understood. The available medical evidence of record does not directly speak to the question of whether the etiology and pathophysiology of the diagnosed low back and lower extremity disorders and erectile dysfunction is partially understood. Remand is required to obtain an adequate medical examination addressing this issue. The Board notes that the record reveals specific diagnoses pertaining to the claimed conditions. As acknowledged by the Court, the Veteran "appears to concede that his conditions have been diagnosed and therefore they cannot be 'undiagnosed illness[es]' for the purposes of section 1117 and § 3.317." July 2021 Memorandum Decision at page 6. Rather, the Veteran argues that his claimed lumbar spine disorder, bilateral lower extremity radiculopathy and erectile dysfunction are manifestations of a MUCMI. Accordingly, the remand instructions below are tailored to the contentions at issue in this case. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the claimed lumbar spine disorder, bilateral lower extremity radiculopathy, and erectile dysfunction. The Veteran's claims file must be made available to the examiner for review. All indicated diagnostic tests and studies should be completed. The examiner must then answer the following questions: a) What diagnosed lumbar spine disorder, bilateral lower extremity radiculopathy and erectile dysfunction have been present at any time since January 4, 2018? b) For each such diagnosed disorder, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. c) For each such diagnosed disorder, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.