Citation Nr: 22015690 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 14-36 831 DATE: March 18, 2022 ORDER Entitlement to service connection for sinusitis is granted. FINDINGS OF FACT 1. The Veteran served in Kuwait on or after September 19, 2001 and, absent evidence to the contrary, is presumed to have been exposed to fine, particulate matter during such service. 2. The Veteran has a current diagnosis of chronic sinusitis. CONCLUSION OF LAW The criteria for entitlement to service connection for sinusitis are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309, 3.317, 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1975to November 1979 and from July 2006 to May 2007. In March 2018, the Veteran testified at a Board hearing. The transcript is of record. In January 2022 the Veteran was notified that the Veterans Law Judge (VLJ) who conducted the March 2018 hearing is no longer employed by the Board. The Veteran was informed of his right to request another optional Board hearing. To date, there has been no response from the Veteran. As it has been over 30 days since the date of the letter, the Board will assume that the Veteran does not want another hearing and proceed with adjudication. In August 2020 the Board issued a decision denying the claim of entitlement to service connection for chronic sinusitis. The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in an order dated August 2021, the Court set aside the Board's denial and remanded the issue for further development and readjudication pursuant to the terms of the joint motion remand (JMR). 1. Entitlement to service connection for sinus disorder Effective August 5, 2021, VA established presumptive service connection for asthma, rhinitis, and sinusitis for veterans with service in the Southwest Asia theater of operations during the Persian Gulf War. See 86 Fed. Reg. 42724-33 (Aug. 5, 2021). Specifically, VA will presume exposure to fine particulate matter for Gulf War veterans deployed in the Southwest Asia theater of operations, as well as Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001. 38 C.F.R. § 3.320 (a)(3), (a)(4). A veteran is presumptively entitled to service connection for asthma, rhinitis, or sinusitis, to include rhinosinusitis, if the disease becomes manifest to any degree, including noncompensable, within 10 years from the date of separation from military service that includes a qualifying period of service. 38 C.F.R. § 3.320 (a)(1). The conditions shall not be presumed service connected if there is affirmative evidence that: (1) the disease was not incurred during or aggravated by a qualifying period of service; or (2) the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) the disease is the result of the veteran's own willful misconduct. 38 C.F.R. § 3.320 (b). The Board finds that the presumptive service connection is warranted for sinusitis. The Veteran's DD form 214 confirms that he served in Kuwait from September 2006 to April 2007, which is part of the Southwest Asia theater of operations. 38 U.S.C. § 3.317(e)(2). Thus, he is presumed to have been exposed to fine particulate matter during service, and there is no evidence to the contrary. The evidence also establishes that the Veteran was diagnosed with chronic sinusitis in 2009, which is within 10 years from his date of separation from service. While the Veteran has a history of acute sinus infections, the evidence does not reflect a chronic condition prior to 2009. Thus, the presumption under 38 C.F.R. § 3.320 is applicable. Accordingly, the claim for entitlement to service connection for sinusitis is granted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.