Citation Nr: 22018393 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-22 235 DATE: March 29, 2022 ORDER Service connection for sinusitis and allergic rhinitis is granted. REMANDED Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and was exposed to particulate matter; the Veteran has current diagnoses of allergic rhinitis and chronic sinusitis that manifested within 10 years of hi Persian Gulf War service. CONCLUSION OF LAW The criteria for entitlement to service connection for allergic rhinitis and sinusitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.320. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2001 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Although additional evidence was received after the most recent supplemental statement of the case (SSOC), and the Veteran requested that the Board remand the appeal for AOJ consideration, the Board finds that it may proceed to adjudicate the issue of entitlement to service connection for sinusitis and rhinitis. See 38 C.F.R. § 20.1305(c). This is because, as the Board's grant of the claim for service connection for sinusitis and rhinitis below is a full grant of the benefit sought on appeal, remand is not required. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Service connection for chronic sinusitis and allergic rhinitis is granted. The Veteran contends his sinus disorder began during active duty and that it was due to environmental exposures while serving onboard the USS Kearsarge. See Hearing Transcript (July 2021). The Board concludes that Veteran's sinusitis and allergic rhinitis are presumptively associated with his service. 38 C.F.R. §§ 3.317(e); 3.320(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a link between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2026, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). Additionally, service connection is authorized for certain chronic respiratory diseases, to include asthma, rhinitis, and sinusitis, as presumptively due to exposure to particulate matter for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War (from August 2, 1990. to the present), or in Afghanistan, Syria, Djibouti, and/or Uzbekistan on or after September 19, 2001. 38 C.F.R. §§ 3.320(a), 3.317(e). The Southwest Asia theater of operations refers to 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. 38 C.F.R. § 3.317(e)(2). Service connection for the listed diseases is presumptive even though there is no evidence of such disease in service if the disease becomes manifest to any degree (including non-compensable) within 10 years of the date of separation from military service that includes a qualifying period of service. 38 C.F.R. § 3.320(a) (emphasis added). A listed disease 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, (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 presumptive service connection is warranted as the Veteran has current diagnoses of sinusitis and allergic rhinitis that became manifest within 10 years of his separation from active duty and he served in the Southwest Asia theater of operations during the requisite period. First, the Board finds that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran reported that he was deployed in the North Arabian Gulf in 2003 and 2004, to drop off Marines in Kuwait, and that he remained on ship most of the time. See C&P Exam (January 2016). Personnel records show the Veteran separated from service in September 2004 with service on the USS Kearsarge from November 2001 to July 2004. See DD 215 Corrected DD Form 214 Certificate of Release or Discharge from Active Duty (March 2012); DPRIS Response (August 2015). In an evaluation report from July 2002 to July 2003, it was noted that the Veteran was key in the offload and back load of 1800 Marines as well as 4000 tons of rolling stock and equipment of the 2nd Marine Expeditionary Brigade in support of Operation Iraqi Freedom (OIF). See DPRIS Response (August 2015). In an evaluation report from July 2003 to July 2004, it was noted that the Veteran was instrumental in Kearsarge completing the safe onload of the 24th Marine Expeditionary Unit Air Combat Element in preparation for a surge deployment in support of OIF and GWOT. See DPRIS Response (August 2015). In a June 2003 Post-Deployment Health Assessment, the Veteran reported service in the Persian Gulf and Kuwait on the USS Kearsarge from February to May 2003. See STR - Medical (December 2004). In a July 2004 Post-Deployment Health Assessment, the Veteran noted service in the North Arabian Gulf on the USS Kearsarge from June 2004 to July 2004. See STR - Medical (December 2004). The USS Kearsage command history for 2003 shows that the USS Kearsage entered the Arabian Sea on February 20th, entered the Gulf of Oman on February 12th, and docked in both Kuwait and Bahrain. See https://www.history.navy.mil/content/dam/nhhc/research/archives/command-operation-reports/ship-command-operation-reports/k/kearsage/lhd-3-v/2003.pdf (last accessed March 25, 2022). The Board finds that the Veteran served in the Southwest Asia theater of operations due to service in the Persian Gulf and was thus exposed to particulate matter. Next, there are diagnoses of chronic sinusitis and allergic rhinitis throughout the appeal period. See C&P Exam (December 2018); Medical Treatment Record Non-Government Facility (February 2020); CAPRI (August 2021). Furthermore, VA treatment records show diagnoses of sinusitis and rhinitis in 2013 and 2010, respectively. See CAPRI (August 2015). Thus, there are current diagnoses of sinusitis and rhinitis that manifested within 10 years of service discharge, which was in September 2004. Finally, nothing in the evidence of record indicates that the disease was caused by a supervening condition or event or that the diseases are the result of the Veteran's own willful misconduct. Accordingly, as explained above, the criteria for service connection for sinusitis and allergic rhinitis are met on a presumptive basis. 38 C.F.R. § 3.320. REASONS FOR REMAND Entitlement to service connection for hemorrhoids is remanded. The Veteran contends that his hemorrhoids began during active duty and have been recurrent since that time. See Hearing Transcript (July 2021); VA 21-4138 Statement In Support of Claim (June 2013). First, the Board finds that remand is required for the RO to consider evidence in the first instance. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board, as well as any such evidence referred to the Board by the agency of original jurisdiction under § 19.37(b), must be referred to the AOJ for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1305(c). Here, the most recent SOC was issued in January 2019. See SSOC (January 2019). It appears that the appeal was certified to the Board in 2019. See BVA Letter (September 2019). Additional VA treatment records and VA examinations addressing the Veteran's hemorrhoids were associated with the claims file in 2020 and 2021. See CAPRI (February 2020); CAPRI (May 2020); CAPRI (January 2021); CAPRI (August 2021); CAPRI (September 2021); C&P Exam (March 2021). Thereafter, the Board sent a letter to the Veteran advising him of this additional evidence and affording him the opportunity to submit a waiver of AOJ consideration. See BVA Letter (November 2021). The Veteran requested, however, that the appeal be remanded back to the AOJ for review of the additional evidence. See Correspondence (December 2021). Accordingly, remand is required. Second, an addendum opinion should be obtained. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). "[T]he VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate." McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016). A January 2021 VA examination and opinion were provided. See C&P Exam (March 2021). The examiner opined that the hemorrhoids were a disease with a clear and specific etiology and diagnosis and were less likely than not related to a specific exposure event experience by the Veteran during service in Southwest Asia. See C&P Exam (March 2021). The examiner did not, however, provide an opinion regarding whether the hemorrhoids began during service, to include addressing relevant service treatment records, and did not address the Veteran's lay statements of in-service symptoms with recurrent symptoms since that time. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for hemorrhoids. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed hemorrhoids. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Whether the Veteran's hemorrhoids at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease, to include Gulf War exposures. Consider whether in-service symptoms described by the Veteran, such as rectal bleeding, at least as likely as not represent the onset of hemorrhoids in service and indicate whether such symptoms are more likely than not due to other causesexplain. The examiner must address the following: the 2021 VA Rectum and Anus and Intestinal Conditions examinations and opinions; the medical records dated in 2009 from Dr. DNA; and the relevant STRs, to include the February 2002 record in which the Veteran reported rectal pain and the assessment was probably anal fissure. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. 2. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.