Citation Nr: 22017399 Decision Date: 03/25/22 Archive Date: 03/24/22 DOCKET NO. 15-33 025 DATE: March 25, 2022 ORDER Service connection for a sinus disability, diagnosed as allergic rhinitis, is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a peripheral vestibular disability (to include vertigo, a disability manifested by dizziness, and a disability manifested by lightheadedness) is remanded. FINDING OF FACT The Veteran's allergic rhinitis is a chronic respiratory disability that became manifest within 10 years after his separation from a period of military service which included active service in the Southwest Asia theater of operations during the Persian Gulf War, and his allergic rhinitis disability is presumed to be caused by his presumed exposure to particulate matter during such service. CONCLUSION OF LAW The criteria for service connection for a sinus disability, diagnosed as allergic rhinitis, have been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2021); 75 Fed. Reg. 42,724 (Aug. 5, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to May 1991, including active service in the Southwest Asia theater of operations during the Persian Gulf War during this period (i.e., from November 1990 to April 1991). He also had a prior period of active duty for training (ACDUTRA) from August 1986 to December 1986. In April 2019, a Travel Board hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. In October 2019 and in October 2020, the case was remanded for additional development. The Veteran had also initiated appeals of denials of service connection for a right knee disability and for headaches. Following the Board's October 2019 remand of the right knee service connection issue, a July 2020 rating decision granted service connection for right knee patellofemoral syndrome. In addition, following the Board's October 2019 and October 2020 remands of the headaches service connection issue, a February 2021 rating decision granted service connection for tension headaches. Because these matters have been granted in full, they are not before the Board. Service connection for a sinus disability, diagnosed as allergic rhinitis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. See 38 U.S.C. §§ 1117, 1118. Additionally, during the pendency of the appeal, an interim final rule was implemented to allow for presumptive service connection for Veterans who served in the Southwest Asia theater of operations as defined in 38 C.F.R. § 3.317(e)(2) or in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001 during the Persian Gulf War as defined in § 3.2(i). See 75 Fed. Reg. 42,724 (Aug. 5, 2021) (to be codified at 38 C.F.R. § 3.320). The regulation provides that if a Veteran was exposed to particulate matter, to include as the result of burn pits, in these locations, certain listed diseases shall be service connected if manifested to any degree within 10 years from the date of separation from military service. 38 C.F.R. § 3.320(a)(1). A Veteran shall be presumed to have been exposed to fine, particulate matter during such service, unless there is affirmative evidence to establish that the Veteran was not exposed to such matter during that service. 38 C.F.R. § 3.320(a)(1). The list of diseases afforded this presumption include asthma, rhinitis, and sinusitis, to include rhinosinusitis, and must not be seasonal or an acute allergic manifestation in nature (as pursuant to 38 C.F.R. § 3.380). This amendment is applicable to claims received by VA on or after August 5, 2021, and to claims pending before VA on that date, as well as certain previously denied claims. See 75 Fed. Reg. 42,724 (Aug. 5, 2021). The Veteran contends that he currently has a sinus disability (to include allergic rhinitis) as a result of his active service in the Southwest Asia theater of operations during the Persian Gulf War. Because the Veteran served in the Southwest Asia theater of operations, as defined in § 3.317, during the Persian Gulf War, he is entitled to a presumption that he was exposed to particulate matter during such service. After serving in the Southwest Asia theater of operations during the Persian Gulf War from November 1990 to April 1991, the Veteran separated from this period of active duty military service on May 14, 1991. Within 10 years after his separation date, a May 2001 private treatment record documented the Veteran's diagnosis of allergic rhinitis on May 7, 2001. Prior to this date, private treatment records documented his respiratory complaints in June 1998 (when he reported a four-day history of sore throat, nasal congestion associated with cough productive of grayish phlegm, and low grade fever, with upper respiratory infection diagnosed) and in August 1998 (when he was diagnosed with allergic reaction and upper respiratory infection, and he reported that he had been working in the yard recently and had had a great deal of difficulty with burning of the eyes, nasal congestion, and stopping up of his throat). Thereafter, private treatment records (including in March 2006 and May 2007) continued to document his diagnosis of allergic rhinitis. During the current appeal period, he was diagnosed with allergic rhinitis at VA sinus examinations in December 2013, January 2020, and February 2021, and the date of diagnosis for his allergic rhinitis was noted to be 2001 at all three of these VA examinations. As noted above, the Veteran is a Persian Gulf Veteran and is entitled to a presumption that he was exposed to particulate matter during his verified service in the Southwest Asia theater of operations. See 38 C.F.R. § 3.317(e)(1); 75 Fed. Reg. 42,724. In addition, as shown by the evidence outlined above, the Veteran has been diagnosed with the chronic respiratory disability of allergic rhinitis that became manifest within 10 years after his separation from the period of military service which included his active service in the Southwest Asia theater of operations during the Persian Gulf War. Accordingly, the Board finds that service connection for a sinus disability, diagnosed as allergic rhinitis, is warranted on a presumptive basis as a result of the Veteran's presumed exposure to particulate matter during his service in the Southwest Asia theater of operations. 75 Fed. Reg. 42,724; 38 C.F.R. § 3.317. [The Board finds that the instant decision applies to and resolves all pending claims of service connection for a sinus disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).] REASONS FOR REMAND As an initial matter, the evidence of record indicates that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA), as documented on a December 2019 SSA inquiry form (noting a disability onset date of January 2016). However, the Veteran's SSA records are not currently in the claims file. On remand, all relevant documents pertaining to any applications for SSA disability benefits, as well as any decisions or determinations regarding such benefits, should be obtained and associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 1. Entitlement to service connection for a lumbar spine disability. The Veteran contends that he currently has a lumbar spine disability related to his military service, to include as a result of his active service in the Southwest Asia theater of operations during the Persian Gulf War. He has also contended (to include in a November 2020 written submission) that he has had problems with chronic low back pain since his return from Operation Desert Storm. In its October 2020 remand, the Board specifically noted that the opinion previously obtained was inadequate because it did not address whether the Veteran's diagnosed lumbar spine condition was directly related to his service, irrespective of the lack of treatment during service. The remand directive regarding the spine examination request specifically stated that an opinion should be provided "[i]rrespective of there being no in-service treatment for a lumbar spine condition." Pursuant to the Board's most recent remand in October 2020, the Veteran underwent a new VA back examination in February 2021. At that examination, he was diagnosed with lumbar spine degenerative arthritis, with the date of diagnosis noted to be 2013. In a February 2021 addendum, the VA examiner opined that the Veteran's claimed lumbar spine disability was less likely than not incurred in or caused by his in-service Gulf War exposures. In another February 2021 addendum, the VA examiner opined that the Veteran's claimed lumbar spine disability was less likely than not incurred in or due to a Gulf War undiagnosed illness. For both of these opinions, the rationale provided was that no chronic diagnosis was made for lumbar spine degenerative arthritis, that the Veteran's service treatment records (STRs) were silent for a diagnosis of lumbar spine degenerative arthritis, and that there was no evidence to establish a causal or medical relationship between the currently diagnosed lumbar spine degenerative arthritis and the Veteran's in-service Gulf War exposures or a Gulf War undiagnosed illness. These opinions do not substantially comply with the Board's prior remand request as they focus on the fact that the Veteran did not have treatment during service and do not provide a clear rationale for the conclusions reached. Following the issuance of a February 2021 supplemental statement of the case (SSOC) and after the record was transferred to the Board, VA-generated evidence was newly added to the claims file that is pertinent to the lumbar spine service connection claim on appeal, including the report of a September 2021 VA back examination which includes a newly noted diagnosis for the Veteran of lumbosacral strain. As the Board is otherwise remanding the claim for additional development, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review this evidence in the first instance. 38 C.F.R. § 19.37. On remand, after all outstanding treatment records have been associated with the claims file, all necessary addendum medical opinions with adequate rationale must be obtained. 2. Entitlement to service connection for a left knee disability. The Veteran contends that he currently has a left knee disability related to his military service, to include as a result of his active service in the Southwest Asia theater of operations during the Persian Gulf War. In addition, he has indicated that he currently has a left knee disability secondary to his service-connected right knee, as he testified at his April 2019 Board hearing that he puts more pressure on his left knee due to either his back (for which he is still seeking service connection) or due to his right knee (for which he is now service-connected). In its October 2020 remand, the Board specifically noted that the opinion previously obtained was inadequate because it did not address whether the Veteran's diagnosed left knee condition was directly related to his service, irrespective of the lack of treatment during service. The remand directive regarding the left knee examination request specifically stated that an opinion should be provided "[i]rrespective of there being no in-service treatment for left knee impairment." Pursuant to the Board's October 2020 remand, the Veteran underwent a new VA knee examination in February 2021. At that examination, he was diagnosed with left knee condition, with the date of diagnosis noted to be the date of the current examination, and with symptoms described as pain, achiness, and tenderness. [The Board notes that the Veteran was also diagnosed during the pendency of the appeal period with a left knee strain at a January 2020 VA knee examination.] In a February 2021 addendum, the VA examiner opined that the Veteran's claimed left knee disability was less likely than not incurred in or caused by his in-service Gulf War exposures. In another February 2021 addendum, the VA examiner opined that the Veteran's claimed left knee disability was less likely than not incurred or due to a Gulf War undiagnosed illness. For both of these opinions, the rationale provided was that no chronic diagnosis was made for left knee impairment, that the Veteran's STRs were silent for a diagnosis of left knee impairment, and that there was no evidence to establish a causal or medical relationship between the currently diagnosed left knee impairment and the Veteran's in-service Gulf War exposures or a Gulf War undiagnosed illness. However, these opinions do not substantially comply with the Board's prior remand request as they focus on the fact that the Veteran did not have treatment during service and do not provide a clear rationale for the conclusions reached. Furthermore, there are no opinions currently of record which address the theory of secondary service connection between any current left knee disability and the Veteran's service-connected right knee patellofemoral syndrome. Following the issuance of a February 2021 SSOC and after the record was transferred to the Board, VA-generated evidence was newly added to the claims file that is pertinent to the left knee service connection claim on appeal, including the report of a September 2021 VA knee examination which includes newly noted diagnoses for the Veteran of left knee recurrent subluxation and left knee degenerative arthritis (as shown by contemporaneous September 2021 left knee x-rays). As the Board is otherwise remanding the claim for additional development, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review this evidence in the first instance. 38 C.F.R. § 19.37. On remand, after all outstanding treatment records have been associated with the claims file, all necessary addendum medical opinions with adequate rationale must be obtained. 3. Entitlement to service connection for a right shoulder disability. The Veteran contends that he currently has a right shoulder disability related to his military service, to include as a result of his active service in the Southwest Asia theater of operations during the Persian Gulf War. In its October 2020 remand, the Board specifically noted that the opinion previously obtained was inadequate because it did not address whether the Veteran's diagnosed right shoulder condition was directly related to his service, irrespective of the lack of treatment during service. The remand directive regarding the right shoulder examination request specifically stated that an opinion should be provided "[i]rrespective of there being no in-service treatment for right shoulder impairment." Pursuant to the Board's October 2020 remand, the Veteran underwent a new VA shoulder examination in February 2021. At that examination, he was diagnosed with right shoulder impairment, with the date of diagnosis noted to be 2013, and with symptoms described as pain and decreased range of motion following the May 2012 surgical repair of a right rotator cuff tear. In a February 2021 addendum, the VA examiner opined that the Veteran's claimed right shoulder disability was less likely than not incurred in or caused by his in-service Gulf War exposures. In another February 2021 addendum, the VA examiner opined that the Veteran's claimed right shoulder disability was less likely than not incurred or due to a Gulf War undiagnosed illness. For both of these opinions, the rationale provided was that no chronic diagnosis was made for right shoulder impairment, that the Veteran's STRs were silent for a diagnosis of right shoulder impairment, and that there was no evidence to establish a causal or medical relationship between the currently diagnosed right shoulder impairment (status post right rotator cuff surgery) and the Veteran's in-service Gulf War exposures or a Gulf War undiagnosed illness. However, these opinions do not substantially comply with the Board's prior remand request as they focus on the fact that the Veteran did not have treatment during service and do not provide a clear rationale for the conclusions reached. Following the issuance of a February 2021 SSOC and after the record was transferred to the Board, VA-generated evidence was newly added to the claims file that is pertinent to the right shoulder service connection claim on appeal, including the report of a September 2021 VA shoulder examination which includes newly noted diagnoses for the Veteran of right shoulder strain and right shoulder degenerative arthritis (as shown by contemporaneous September 2021 right shoulder x-rays). As the Board is otherwise remanding the claim for additional development, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review this evidence in the first instance. 38 C.F.R. § 19.37. On remand, after all outstanding treatment records have been associated with the claims file, all necessary addendum medical opinions with adequate rationale must be obtained. 4. Entitlement to service connection for a peripheral vestibular disability (to include vertigo, a disability manifested by dizziness, and a disability manifested by lightheadedness). The Veteran contends that he currently has a peripheral vestibular disability related to his military service, to include as a result of his active service in the Southwest Asia theater of operations during the Persian Gulf War. He has also contended that he currently has a peripheral vestibular disability secondary to his service-connected posttraumatic stress disorder (PTSD) (to include the medications taken for such disability), his service-connected tension headaches, and his allergic rhinitis (which is being service-connected in the instant decision). Pursuant to the Board's most recent remand in October 2020, the Veteran underwent a new VA vestibular examination in February 2021. At that examination, he was diagnosed with vertigo, with the date of diagnosis noted to be the date of the current examination, and with symptoms described as ear discomfort and dizziness. In a February 2021 addendum, the VA examiner opined that the Veteran's claimed peripheral vestibular disability was less likely than not incurred or due to a Gulf War undiagnosed illness, with the rationale being that no chronic diagnosis was made for peripheral vestibular disorder, that the Veteran's STRs were silent for a diagnosis of peripheral vestibular disorder, and that there was no evidence to establish a causal or medical relationship between the currently diagnosed peripheral vestibular disorder (i.e., vertigo) and a Gulf War undiagnosed illness and that it would be "mere speculation without more evidence" to concur that any functional impairment from symptoms of dizziness or lightheadedness was incurred or due to a Gulf War undiagnosed illness. When declining to offer a non-speculative opinion, it must be clear that the examiner has considered all procurable and assembled data by obtaining all tests and records that might reasonably illuminate the medical analysis. See, e.g., Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010). Moreover, the examiner must provide an adequate explanation as to the basis for the conclusion that a non-speculative opinion cannot be offered. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation of the individual examiner. Id. In this instance, the rationale provided for the February 2021 opinion is inadequate as it does not indicate what other evidence would be needed in order for an opinion to be rendered without speculation and it is unclear whether the inability to provide an opinion reflects the limitation of knowledge of the February 2021 examiner or a limitation of knowledge in the medical community. Furthermore, there are no opinions currently of record which address the theory of secondary service connection between the currently diagnosed vertigo disability and the Veteran's service-connected PTSD or any medications taken for such (because no peripheral vestibular disability had been diagnosed at the time of a January 2020 VA vestibular examination with accompanying January 2020 opinions addressing his PTSD and his symptoms of dizziness and lightheadedness after taking the psychiatric medications Trazodone and Prazosin), his service-connected tension headaches (despite such an opinion being specifically requested by the Board's October 2020 remand see Stegall v. West, 11 Vet. App. 268, 271 (1998)), and his now service-connected allergic rhinitis (because no peripheral vestibular disability had been diagnosed at the time of the aforementioned January 2020 VA vestibular examination with accompanying January 2020 opinions addressing his allergic rhinitis). On remand, after all outstanding treatment records have been associated with the claims file, all necessary addendum medical opinions with adequate rationale must be obtained. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities remaining on appeal at any time during the appeal period. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from February 2021 to the present. 3. Request and obtain from the SSA all relevant documents pertaining to any applications by the Veteran for SSA disability benefits, including any decisions and/or determinations, and supporting medical documentation utilized in rendering any relevant decision or determination. Any negative search result should be noted in the record and communicated to the Veteran. 4. After all requested records have been associated with the claims file, obtain a medical opinion from an appropriate clinician(s), after review of the electronic claims file. If the clinician(s) determines that an examination is necessary to respond to any of the questions below, then the Veteran should be scheduled for such (or a telehealth interview if an in-person examination is not feasible). The clinician(s) is asked to respond to the following questions: (a.) Whether it is at least as likely as not (approximately a 50 percent or greater probability) that each lumbar spine disability diagnosed during the pendency of the appeal period (to include lumbar spine degenerative arthritis and lumbosacral strain) began during the Veteran's active service or is otherwise related to any incident of his active service, with specific consideration given to his in-service duties and his Gulf War exposures; (b.) Whether it is at least as likely as not (approximately a 50 percent or greater probability) that each left knee disability diagnosed during the pendency of the appeal period (to include left knee strain, left knee recurrent subluxation, and left knee degenerative arthritis): (i) began during the Veteran's active service or is otherwise related to any incident of his active service, with specific consideration given to his in-service duties and his Gulf War exposures; (ii) was caused by his service-connected right knee patellofemoral syndrome; or (iii) was aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by his service-connected right knee patellofemoral syndrome; (c.) Whether it is at least as likely as not (approximately a 50 percent or greater probability) that each right shoulder disability diagnosed during the pendency of the appeal period (to include residuals status post right rotator cuff repair, right shoulder strain, and right shoulder degenerative arthritis) began during the Veteran's active service or is otherwise related to any incident of his active service, with specific consideration given to his in-service duties and his Gulf War exposures; and (d.) Whether it is at least as likely as not (approximately a 50 percent or greater probability) that each peripheral vestibular disability diagnosed during the pendency of the appeal period (to include vertigo): (i) began during the Veteran's active service or is otherwise related to any incident of his active service, with specific consideration given to his in-service duties and his Gulf War exposures; (ii) was caused by his service-connected PTSD (to include the medications taken for such disability) OR by his service-connected tension headaches OR by his service-connected allergic rhinitis; or (iii) was aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by his service-connected PTSD (to include the medications taken for such disability) OR by his service-connected tension headaches OR by his service-connected allergic rhinitis. A complete rationale for all opinions must be provided. If the clinician(s) cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician(s) must provide the reasons why an opinion would require speculation. The clinician(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 5. Thereafter, review the record (to specifically include all pertinent VA-generated evidence received since the February 2021 SSOC, including the September 2021 VA back, knee, and shoulder examination reports), ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for a lumbar spine disability, for a left knee disability, for a right shoulder disability, and for a peripheral vestibular disability. If any benefit sought on appeal remains denied, in whole or in part, an SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, 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.