Citation Nr: 22016997 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-56 273 DATE: March 23, 2022 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for headache condition is granted. FINDINGS OF FACT 1. The probative evidence of record shows the Veteran has a diagnosis of sinusitis, and the record demonstrates the Veteran served a qualifying period of service in the Southwest Asia theater of operations during the Persian Gulf War to establish presumptive service connection. 2. The probative evidence of record shows the Veteran has a diagnosis of allergic rhinitis, and the record demonstrates the Veteran served a qualifying period of service in the Southwest Asia theater of operations during the Persian Gulf War to establish presumptive service connection 3. The probative evidence of record shows the Veteran has continuously suffered from a chronic disease, migraine headaches, since his active-duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317; 86 Fed. Reg. 42,724 (August 5, 2021). 2. The criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317; 86 Fed. Reg. 42,724 (August 5, 2021). 3. The criteria for service connection for headache condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on in the United States Army from January 2008 to May 2014. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In addition to the requirements above, service connection may also be established with certain chronic diseases, including organic disease of the nervous system such as migraines, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive 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. 1. Entitlement to Service Connection: Sinusitis 2. Entitlement to Service Connection: Allergic Rhinitis The Veteran contends that his sinusitis and rhinitis are related to his active-duty service in Southwest Asia. VA issued an interim final rule to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, and sinusitis, to include rhinosinusitis, related to presumed exposures to fine, particulate. 86 Fed. Reg. 42,724 (August 5, 2021). Under the newly created rule, presumptive service connection would apply to veterans with a qualifying period of service of active duty in the Southwest Asia theater of operations during the Persian Gulf War, as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001. Id. The interim final rule shall apply to all qualifying claims applications that are received by VA on or after August 5, 2021, or that were pending before VA, on August 5, 2021. Id. The Board notes that the Veteran was diagnosed with chronic sinusitis during the period on appeal. In a May 2017 VA medical record, the Veteran was noted as having sinusitis and left ethmoid sinus disease. Regarding the Veteran's rhinitis, the Board notes that there is an April 2015 VA medical record with a notation of rhinitis, but an October 2015 VA examiner found the Veteran did not have a diagnosis of rhinitis and based a negative opinion partly on the evidence not showing he currently suffered from a chronic condition. However, a subsequent August 2016 VA examination diagnosed the Veteran with allergic rhinitis as of the date of the examination. The Board notes that service connection may be warranted if evidence shows a disability was present at any point during the claim period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Resolving reasonable doubt in favor of the Veteran, the Board finds that he had an allergic rhinitis disability during the appeal period. Additionally, the Veteran's personnel records show he served a qualifying period of active duty in the Southwest Asia during the Persian Gulf War. As the record shows the Veteran's claims for entitlement to service connection for sinusitis and rhinitis were pending before the Board on August 5, 2021, presumptive service connection applies. 86 Fed. Reg. 42,724 (August 5, 2021). In light of the foregoing, the Board concludes that the probative evidence of record weighs in favor of service connection for sinusitis and allergic rhinitis, and the benefit of the doubt doctrine has been applied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 3. Entitlement to Service Connection: Headache Condition The Veteran contends that his headache disability is related to his active-duty service. As an initial matter, the Board notes that the Veteran has been diagnosed with migraine headaches. Further, his service treatment records show in August 2013, the Veteran in his Report of Medical History for separation checked "yes" for severe headaches and explained he gets frequent headaches. Further, he was seen in November 2013 where he reported headaches upon wakening. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service event or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is. In October 2015, a VA examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that there was no significant evidence in the Veteran's service records showing a chronic headache condition while in service or shortly after discharge. The examiner also noted the Veteran "checked 'yes' to questionnaire regarding sleep habits, etc." Although the examiner provided a negative opinion, the Board finds the opinion is inadequate. First, the Board finds it is unclear what checking yes for sleep habits, "etc" means in reference to the Veteran's headaches or whether the examiner took into consideration the Veteran checking yes specifically for severe frequent headaches and elaborated with an explanation on the questionnaire stating he gets frequent headaches. Second, the examiner did not address the Veteran's in-service medical visit in November 2013 where he reported headaches one to two times a week upon awakening. Lastly, the examiner stated there is no evidence of a chronic headache condition shortly after discharge; however, the Veteran was seen in April 2015 at the VA medical center for severe headaches that cause nausea, which was only 11 months after his discharge. For these reasons, the Board does not put probative value to the October 2015 VA opinion. The Board notes that the Veteran has consistently reported suffering from headaches since service. As noted above, he reported headaches in his August 2013 separation Report of Medical History. He was then seen for severe headaches within a year of discharge in April 2015. In May 2016, the Veteran was seen by his private physician where he reported progressively worsening migraine headaches since 2012. In May 2017, the Veteran was seen at the VA medical center complaining of migraine headaches. Therefore, the Board finds that the Veteran having complained of headaches in-service and been diagnosed or seen for migraines consistently since, to be evidence weighing in favor of the Veteran's claim. In the absence of any specific symptoms that make a nexus between the Veteran's current migraine headaches and service, the Board concludes that service connection on a basis of chronicity and continuity of the chronic disease, migraine headaches, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (b), 3.307, 3.309(a). Accordingly, the Board concludes that the probative evidence of record is for the claim and the benefit of the doubt doctrine has been applied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.