Citation Nr: 22016207 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-19 711 DATE: March 21, 2022 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. New and material evidence having been received, the Veteran's service-connection claim for systemic lupus erythematosus (SLE) is reopened. New and material evidence having been received, the Veteran's service-connection claim for chronic obstructive pulmonary disease (COPD) is reopened. Entitlement to service connection for rhinitis and sinusitis is granted. Entitlement to service connection for systemic lupus erythematosus is granted. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent for avascular necrosis, left knee status post decompressive surgery is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a respiratory disability, other than rhinitis or sinusitis, to include chronic obstructive pulmonary disease (COPD), emphysema, recurrent bronchitis, pulmonary fibrosis, and recurrent pleural effusions, is remanded. Entitlement to service connection for osteoporosis is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In August 2021, prior to the promulgation of a decision in the appeal and in the presence of his attorney, the Veteran indicated that he wished to withdraw his appeal for entitlement to service connection for bilateral hearing loss. 2. A January 2008 rating decision denied the Veteran's claims of entitlement to service connection for SLE and COPD. 3. Evidence associated with the record since the January 2008 decision relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for SLE. 4. Evidence associated with the record since the January 2008 decision relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for COPD. 5. The Veteran served in the Southwest Asia theater of operations and was diagnosed with sinusitis and rhinitis within 10 years of his separation from service. 6. The evidence is at the very least in equipoise as to whether the Veteran's SLE began during active service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The January 2008 rating decision that denied the Veteran's claims for service connection for SLE and COPD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. As evidence received since the January 2008 rating decision is new and material, the criteria for reopening the claim for service connection for SLE are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. As evidence received since the January 2008 rating decision is new and material, the criteria for reopening the claim for service connection for COPD are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. The criteria for service connection for a respiratory disability, to include allergic rhinitis and sinusitis, are met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.320. 6. The criteria for service connection for systemic lupus erythematosus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2001 to September 2002 and from February 2003 to January 2004. He testified before the undersigned at a virtual hearing in August 2021. A transcript of the hearing is associated with the claims file. Initially, the Board notes that the appeal includes claims of service connection for various respiratory disabilities. In light of the many diagnoses and treatments, the Board has expanded the claim to include consideration of whether service connection is warranted for any respiratory disability. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for sinusitis and allergic rhinitis has been granted herein; whether service connection is warranted for a respiratory disability other than sinusitis or allergic rhinitis is addressed in the Remand section. Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, in the presence of his attorney at his August 2021 hearing, expressed that he wanted to withdraw the appeal for entitlement to service connection bilateral hearing loss. He was informed of, and articulated understanding of the consequences of this action. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for entitlement to service connection for bilateral hearing loss and it is dismissed. New and Material Evidence The Regional Office (RO) denied the Veteran's service-connection claim for SLE in a January 2008 rating decision, in pertinent part based on a finding that the condition had not been clinically diagnosed. The RO denied the Veteran's service-connection claim for COPD in the January 2008 rating decision based on a finding that although mild pulmonary fibrosis and pulmonary emphysema were diagnosed by chest CT in December 2002, which was not during a period of active service, the conditions were not aggravated by subsequent active service. The Veteran did not file a Notice of Disagreement or submit new and material evidence within one year of the decision. As such, the January 2008 rating decision became final. Since the January 2008 rating decision, the Veteran has submitted private treatment records showing a diagnosis of SLE, as well as a private medical opinion offering a positive nexus between the disability and military service. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156. The appeal is accordingly reopened. Regarding the claim for COPD, since the January 2008 rating decision, the Veteran testified at an August 2021 Board hearing that his breathing issues and COPD were potentially related to his lupus, service connection for which has been granted herein. Thus, the Veteran has advanced a theory based on secondary service connection and has submitted private treatment records showing a potential connection. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156. The appeal is accordingly reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A. Sinusitis/Rhinitis The Veteran contends that his sinusitis is related to his service in the Southwest Asia theater. His DD Form 214 indicates that he received the Iraq Campaign Medal and was deployed in support of Operation Noble Eagle (October 2001 to September 2002) and Operation Enduring Freedom (February 2003 to January 2004). The RO has confirmed his service in the Southwest Asia theater of operations during the Persian Gulf War. See August 2021 Notification Letter. Although the Veteran did not specifically file a claim for rhinitis, as noted above, the Board has expanded the Veteran's claim to include whether entitlement to service connection is warranted for any respiratory disability. Certain disabilities related to service in the Persian Gulf War may be service connected. 38 U.S.C. § 1117. A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(2). The Persian Gulf War is defined as beginning on August 2, 1990, through a date to be prescribed by Presidential proclamation or law. 38 C.F.R. § 3.2(i). On August 5, 2021, VA issued an interim final rule for respiratory conditions due to exposure to particulate matter. The regulations became effective on August 5, 2021. The final interim rule establishes presumptive service connection for asthma, rhinitis, and sinusitis, to include rhinosinusitis. Specifically, 38 C.F.R. § 3.320 states that diseases listed (asthma, rhinitis, and sinusitis, to include rhinosinusitis) shall be service connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service. See 86 Fed. Reg. 42724 -42733 (August 5, 2021). The Veteran underwent a VA examination in February 2017. At that time, a VA clinician noted 2008 diagnoses of rhinitis and sinusitis. The Veteran indicated that he had experienced allergic rhinitis since 2008 and that he had a history of yearly sinusitis. In an opinion, the examining clinician opined that sinusitis was less likely than not due to service because the sinusitis was recurrent but resolved without residuals. The examiner also opined that allergic rhinitis was more likely than not due to service, but that it took almost four years for an official diagnosis to be established. Given the foregoing, the Board finds that the evidence shows a diagnosis of allergic rhinitis, and that the evidence is in relative equipoise as to whether the Veteran has a current diagnosis of sinusitis that manifested within 10 years of the Veteran's separation from service. Although the February 2017 VA examiner noted that sinusitis had resolved, the Board has weighed that finding with VA medical records showing sinusitis as an active problem. Thus, the Board finds that there are current diagnoses of sinusitis and rhinitis that manifested within 10 years of service, specifically as early as 2008, and that the Veteran served in Southwest Asia. Under 38 C.F.R. § 3.320, service connection for both conditions is granted on a presumptive basis. See 86 Fed. Reg. 42724-42733 (August 5, 2021). B. Systemic Lupus Erythematosus The Veteran contends that his SLE onset during his active service in Iraq. Private treatment records from Dr. M.H. show the Veteran has a current diagnosis of systemic lupus erythematosus. During service, the Veteran was seen for various complaints of rashes and was referred for a lupus consultation. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes November 2015 and February 2017 VA opinions. A November 2015 VA clinician opined against a relationship based on a finding that there was no confirmed laboratory finding of SLE. In February 2017, a VA examiner opined that SLE was less likely than not due to service because it "may have" clearly and unmistakably existed prior to military service and was not aggravated beyond its natural progression during his deployment. The rationale was that there was no evidence in the service treatment records indicating that the Veteran had severe flare-ups where he had to be hospitalized or aggressively treated for his SLE. The Board affords both opinions limited probative value, insofar as the record shows a diagnosis of and treatment for SLE and does not show that the Veteran had SLE prior to his military service. The evidence in favor of the claim includes a May 2018 opinion authored by Dr. J.M.D., who opined that it was at least as likely as not that the Veteran's lupus was related to his military service, and that the rashes that developed in 2003 during service were likely the initial onset of what was later diagnosed as lupus. Dr. J.M.D. noted that the Veteran was on steroids during service because of various skin rashes from his body armor, and that the rashes were initially thought to be heat rashes. The Veteran was referred for a lupus consultation in October 2003. It was noted that in December 2003 the Veteran was seen by arthritis specialists for bouts of chest pain and was assessed with connective tissue disorder, which had since been renamed as lupus. The Board finds the May 2018 opinion to be probative, insofar as the examiner considered the Veteran's service treatment records, ultimately concluding that symptoms experienced in service were manifestations of lupus, and initially diagnosed as connective tissue disorder. The opinion contains clear conclusions with supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 394 (2008). Given the foregoing, the Board finds the evidence to at least be in equipoise as to whether the Veteran's SLE arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for systemic lupus erythematosus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for PTSD. 2. Entitlement to a rating in excess of 10 percent for avascular necrosis, left knee status post decompressive surgery. The Veteran was last examined for his service-connected PTSD and left knee disabilities in January 2015 and February 2017, respectively. Since his last PTSD examination, he has undergone inpatient psychiatric treatment through VA, for which he is in receipt of a temporary total rating. At his August 2021 Board hearing, he testified that his PTSD had worsened. Regarding his left knee, he testified at the Board hearing that his left knee symptoms had worsened insofar as he was unstable and needed knee injections. Given the time that has elapsed since his prior examinations, and the testimony provided at the August 2021 hearing, the Board believes contemporaneous examinations are needed before a fully informed decision can be made as to the propriety of the disability ratings assigned. 3. Entitlement to service connection for a left hip condition. The Veteran contends that his left hip condition is secondary to his service-connected left knee condition or alternatively, to the longstanding steroid use that has been prescribed for other conditions. The Veteran underwent a hip examination in January 2015, at which time the Veteran reported pain. Despite the Veteran's statements, the clinician found that there was no left hip diagnosis. The United States Court of Appeals for the Federal Circuit has determined that where the evidence shows that pain reaches the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Here, the Veteran has credibly reported left hip pain to VA providers, pain that may rise to a level of functional impairment. A January 2015 VA medical center provider indicated that his left hip pain was potentially related to medication taken for his lupus. On remand, the Veteran should undergo a new VA examination so that a clinician may clarify the nature of any hip disability, if any, and whether such is related to service, or to a service-connected disability. 4. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), emphysema, recurrent bronchitis, pulmonary fibrosis, and recurrent pleural effusions. Herein, the Board has granted service connection for sinusitis and rhinitis as due to service in Southwest Asia. The record shows other diagnosed respiratory conditions, including COPD, emphysema, bronchitis, pulmonary fibrosis, and recurrent pleural effusions. Medical records show that the Veteran was diagnosed with mild pulmonary emphysema and pulmonary fibrosis in December 2002, which was not during a period of active service. A December 2003 in-service medical assessment reflects the Veteran's notations that he was exposed to DEET, environmental pesticides, smoke from oil fires, burn pits that included trash and feces, JP8 and other fuels, and sand and dust. The Veteran underwent a VA respiratory conditions examination in November 2015. The examiner noted diagnoses of COPD and emphysema and opined that the conditions were less likely than not due to service because medical testing revealed post-service diagnoses. The examiner did not address the relevance of the December 2002 diagnoses of emphysema and fibrosis. Moreover, no examiner has addressed whether any of the Veteran's respiratory conditions are related to the various exposures in Southwest Asia. Accordingly, the Veteran should undergo a comprehensive examination addressing all disabilities and their etiologies. 5. Entitlement to service connection for osteoporosis. The Veteran contends that his osteoporosis developed due to medications, specifically steroids, taken for other conditions. See September 2014 Statement in Support of Claim, August 2021 Hearing Transcript. The record shows a diagnosis of osteoporosis; however, the Veteran has not been afforded a VA examination to determine the etiology of the condition. Given his diagnosis, the notations in the record that the Veteran has been on a prolonged regimen of steroids, and his various contentions, the Board finds that he should undergo an examination. 6. Entitlement to service connection for sleep apnea. The Veteran contends that his diagnosed sleep apnea is due to service, or alternatively, to a service-connected condition. He underwent a VA examination for his condition in May 2018. At that time, a VA clinician noted that sleep apnea was diagnosed in 2016, and that it was less likely than not due to any exposure incident in service because there was no medical literature linking sleep apnea to a specific environmental exposure in Southwest Asia. The examiner further noted that the shortness of breath and difficulty breathing noted in service were not symptoms pathognomonic for sleep apnea, and that sleep apnea was only diagnosed many years later by polysomnographic testing. The Board finds that an addendum opinion is necessary. In this regard, the May 2018 examiner appeared to suggest that the symptoms experienced by the Veteran during service were not earlier manifestations of sleep apnea in large part because the Veteran did not undergo specific polysomnographic testing in service. Yet, the examiner did not adequately explain why, even if the Veteran did not undergo apnea testing in service, his current sleep apnea was unrelated to the symptoms experienced during service. Simply pointing to a passage of time between service and a diagnosis, without more, is not a sufficient reason to offer a negative nexus opinion. Moreover, on remand, a VA examiner should address the posited theory of secondary service connection, and consider the lay statements submitted in support of the appeal. 7. Entitlement to a TDIU. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Here, the Board finds that a claim of entitlement to a TDIU has been raised by the Veteran at his August 2021 Board hearing. Specifically, although the Veteran indicated that he was employed, he also said that his service-connected PTSD had caused him to miss many days of work. Thus, the Board has jurisdiction over this issue as part and parcel of his claim for an increased rating and has listed such on the title page. On remand, the AOJ should send the Veteran proper notice, and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and then adjudicate the matter in the first instance. The matters are REMANDED for the following action: 1. Send the Veteran the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Schedule the Veteran for a PTSD examination to ascertain the current nature and severity of his service-connected PTSD. 3. Schedule the Veteran for a knee examination to ascertain the current severity of his service-connected left knee disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should report or estimate functional loss during flare-ups and after repetitive use in terms of the degree of additional loss of range of motion. 4. Schedule the Veteran for an examination of his claimed left hip disability. The examiner should review the claims file and take a history from the Veteran as to the onset and progression of his hip condition. Then, the examiner should respond to the following: (a.) Identify any left hip disability that has existed since the date of claim, i.e., September 2014. (b.) If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider the Veteran to have a "disability" for the purpose of providing the requested opinion(s) below. (c.) Is it at least as likely as not (approximately 50 percent probability) that any of the Veteran's diagnosed left hip conditions had onset in, or are otherwise related to the Veteran's service? The examiner should address the relevance, if any, of the August 1987 notation in the Veteran's National Guard service records that his left hip was injured after a car accident. (d.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's left hip condition(s) has been caused or aggravated by the Veteran's left knee condition, lupus, or to any medications taken for other conditions? The examiner should address the January 2015 VA treatment record indicating that the left hip pain was related to lupus medication, specifically, steroids. 5. Schedule the Veteran for an examination for his claimed respiratory conditions, other than sinusitis and rhinitis. The examiner should review the claims file and take a history from the Veteran as to the onset and progression of his respiratory issues. Then, the examiner should respond to the following: (a.) Identify all respiratory disabilities that have been present since the date of claim, i.e., June 2015. Note that the record shows diagnoses of COPD, bronchitis, emphysema, pulmonary fibrosis, and pleural effusions. (b.) Is it at least as likely as not (approximately 50 percent probability) that any of the Veteran's diagnosed respiratory conditions had onset in, or are otherwise related to the Veteran's period of active Gulf War service in Southwest Asia? The examiner should presume exposure to burn pits, environmental pesticides, smoke from oil fires, JP8 and other fuels, and sand and dust. (c.) For pulmonary fibrosis and emphysema, is it clear and unmistakable (i.e., undebatable) that either disability preexisted the Veteran's second period of active-duty service from February 2003 to January 2004? The examiner should discuss the December 2002 finding on CT scan of bilateral mild fibrosis and pulmonary emphysema. (d.) If so, is it also clear and unmistakable (i.e., undebatable) that such disability was NOT aggravated beyond its natural progression during active-duty service through January 2004? (e.) For pulmonary fibrosis or emphysema, if the answer to either question (c.) or (d.) is "no," assume as true that the Veteran entered his second period of service without either disability. Then, with that assumption in mind, is it at least as likely as not (approximately 50 percent probability) that either disability had onset in, or is otherwise related to the Veteran's active-duty service? 6. Schedule the Veteran for an examination for his claimed osteoporosis. The examiner should review the claims file and take a history from the Veteran as to the onset and progression of the condition. Then, the examiner should respond to the following: (a.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's osteoporosis had onset in, or is otherwise related to the Veteran's active service? (b.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's osteoporosis has been caused or aggravated by any of his service-connected disabilities, to include any medications taken therefor? The examiner should address whether the Veteran's prolonged steroid/Prednisone use caused brittle bones. 7. Obtain an addendum medical opinion addressing the etiology of the Veteran's diagnosed sleep apnea. The record must be made available to and reviewed by the opinion provider. It is left to the discretion of the opinion provider whether an in-person/virtual examination is necessary. Following a review of the record, the reviewing clinician should address the following: (a.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's sleep apnea had its onset during, or is otherwise related to, his active-duty service? In providing a response, the clinician is asked to consider and comment upon the lay statements from the Veteran as well as family and friends concerning his in-service sleeping and breathing issues. The examiner should also presume exposure to burn pits, environmental pesticides, smoke from oil fires, JP8 and other fuels, and sand and dust. If there are medical reasons to either support or call into question the Veteran's assertions of experiencing longstanding apnea symptoms, the examiner should so state, with explanation. (b.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's sleep apnea has been caused or aggravated by any of the Veteran's service-connected disabilities, to include any medications taken therefor? (Continued on Next Page) 8. Thereafter, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.