Citation Nr: 22016392 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 15-12 642 DATE: March 22, 2022 ORDER Entitlement to service connection for a sinus disorder with headaches, to include as due to in-service exposure to particulate matter in the Persian Gulf, is granted. Entitlement to service connection for allergic rhinitis, to include as due to in-service exposure to particulate matter in the Persian Gulf, is granted. REMANDED Entitlement to service connection for muscle and joint pain, claimed as fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 is remanded. Entitlement to service connection for a sleep disorder, including sleep apnea, to include as secondary to a service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to fine, particulate matter as a result of his service in Southwest Asia during the Persian Gulf War. 2. The Veteran's sinusitis with headaches became manifest within 10 years from the date of separation that included the period of service in Southwest Asia during the Persian Gulf War. 3. The Veteran's allergic rhinitis became manifest within 10 years from the date of separation that included the period of service in Southwest Asia during the Persian Gulf War. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis with headaches have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. 2. The criteria for entitlement to service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1988 to March 1989 and from November 1990 to May 1991. He had service in Southwest Asia from January 1991 to April 1991. In June 2019, the Board issued a decision which denied the Veteran's claims for entitlement to service connection for fibromyalgia, entitlement to service connection for allergic rhinitis, entitlement to service connection for sinus headaches, and entitlement to service connection for a sleep disorder, including sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court issued a Memorandum Decision vacating the Board's June 2019 denial of the claims for service connection for fibromyalgia, allergic rhinitis, sinus headaches, and a sleep disorder, and remanding the matters to the Board for additional consideration. Service Connection Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Entitlement to service connection for a sinus disorder with headaches, to include as due to in-service exposure to particulate matter in the Persian Gulf, and entitlement to service connection for allergic rhinitis, to include as due to in-service exposure to particulate matter in the Persian Gulf The Veteran asserts that he has allergic rhinitis and a sinus disorder which began "shortly after [his] return from Saudi Arabia [and] within [one] year of [his] separation from active duty." He attributes his allergic rhinitis and sinus disorder to exposure to sandstorms while stationed in Southwest Asia. Effective August 5, 2021, VA added 38 C.F.R. § 3.320 which provides that, if a veteran was exposed to particulate matter during active service, certain chronic diseases, including asthma, rhinitis, and sinusitis, to include rhinosinusitis, shall be service-connected if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from service that includes a qualifying period of service as defined in 38 C.F.R. § 3.320(a)(4), except as provided in 38 C.F.R. § 3.320(b) or if there is affirmative evidence to establish that the veteran was not exposed to fine, particulate matter during that service. 38 C.F.R. § 3.320. In-service particulate matter exposure is presumed for veterans who served in Afghanistan, Syria, Djibouti, Uzbekistan, or the Southwest Asia theater of operations (Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations) during the Persian Gulf War, August 2, 1990, through a date Presidential proclamation or law will prescribe. 38 C.F.R. §§ 3.2(i), 3.317(e)(2), 3.320(a)(4). In this case, the Veteran's service personnel records reflect that he served in Saudi Arabia from January 1991 to April 1991. The Veteran has also provided competent and credible testimony regarding the nature, circumstances, and frequency of his exposure to sandstorms, which is consistent with the places, types, and circumstances of the duties he performed during his period of active service. Accordingly, the Veteran is presumed to have been exposed to particulate matter during service. 38 C.F.R. § 3.320(a)(4). The claims file contains competent and current diagnoses of allergic rhinitis and chronic sinusitis, as reflected in VA treatment records. Accordingly, current disabilities are established. Although there are no private or VA medical treatment records dated within the 10 years of the Veteran's discharge from active duty service to establish that allergic rhinitis and sinusitis manifested within 10 years of service discharge, the Veteran has provided competent and credible lay statements explaining that he began experiencing allergic rhinitis and sinus disorder symptoms soon after his return from Saudi Arabia in April 1991. The Veteran is competent to report symptoms capable of lay observation, such as congestion, coughing, sneezing, nose bleeds, and headaches. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir.2007). In light of the Veteran's competent and credible lay statements noting symptoms of allergic rhinitis and a sinus disorder within 10 years of service discharge, and with consideration of the benefit of the doubt, the Board concludes that allergic rhinitis and a sinus disorder with headaches are shown to have manifested within 10 years of his separation from service. As the Veteran is presumed to have been exposed to particulate matter during service and allergic rhinitis and sinusitis with headaches, which are chronic diseases presumed to be associated with such exposure, are shown to have been manifested within 10 years of his qualifying period of service in Southwest Asia during the Persian Gulf War, service connection for allergic rhinitis and sinusitis with headaches is granted. REASONS FOR REMAND 1. Entitlement to service connection for muscle and joint pain, claimed as fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 In its July 2021 Memorandum Decision, the Court found that the June 2019 Board decision failed to consider whether the Veteran's muscle and joint pain could be the result of an undiagnosed illness or medically unexplained chronic multisymptom illness associated with his Persian Gulf War service irrespective of the fact that the record does not contain a diagnosis of fibromyalgia. In that regard, the Court noted that the evidence of record showed diagnoses of and treatment for joint and muscle pain, "unspecified myalgia and myositis, polymyositis, and polyarthralgia." Although the Veteran underwent a VA examination to determine the existence and etiology of fibromyalgia in March 2014, the VA examiner concluded only that the Veteran did not have a diagnosis of fibromyalgia and that his "[b]ody ache is due to sleep apnea." The examiner did not provide an opinion as to the etiology of his muscle and joint pain symptoms, unspecified myalgia and myositis, polymyositis, or polyarthralgia. Accordingly, a new VA examination is warranted to assess the etiology of the Veteran's muscle and joint pain symptoms, unspecified myalgia and myositis, polymyositis, and polyarthralgia. 2. Entitlement to service connection for a sleep disorder, including sleep apnea, to include as secondary to a service-connected disability In compliance with the Court's July 2021 Memorandum Decision, the Veteran's claim for entitlement to service connection for a sleep disorder, including sleep apnea, is remanded for a new VA examination to determine whether the Veteran's sleep apnea was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). As noted by the Court, the March 2014 VA opinion for sleep apnea did not address service connection on a secondary basis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the etiology of his muscle and joint pain, myalgia, myositis, polymyositis, and polyarthralgia. To the extent possible, the examiner should be different from the March 2014 VA examiner. After a thorough review of all evidence in the claims file, to include the Veteran's lay statements, the examiner should address the following: (a.) Can the Veteran's muscle and joint pain symptoms be attributed to a known clinical diagnosis (other than a symptom-based diagnosis)? (b.) For any diagnosed disability, the examiner is asked to opine whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran's disability was caused by or incurred during service, to include whether it first manifested during service. i. The examiner should also provide an opinion as to whether any diagnosed disability was caused or aggravated by sleep apnea or any service-connected disability. (c.) If the symptoms cannot be attributed to a known clinical diagnosis, are the Veteran's symptoms a manifestation of: (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology; or (iv) a disease with a clear and specific etiology? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. The examiner is advised that the Veteran is competent to report observable symptomatology. A complete rationale for all opinions must be provided. 2. Provide the Veteran with a new VA examination by appropriate physician to determine the etiology of his sleep apnea. To the extent possible, the examiner should be different from the March 2014 VA examiner. The Veteran's claims file and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's lay statements and testimony, the VA examiner must opine as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's sleep apnea was incurred in or caused by his active duty service. The examiner should also provide an opinion as to whether the Veteran's sleep apnea is proximately due to or aggravated by his service-connected PTSD. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that sleep apnea was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran's lay statements and testimony, and is advised that the Veteran is competent to report observable symptomatology. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.