Citation Nr: 22018453 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-01 054 DATE: March 29, 2022 ORDER New and material evidence has been received and the claim of entitlement to service connection for upper respiratory symptoms, to include allergic rhinitis and sinusitis, is reopened. Service connection for allergic rhinitis is granted. Service connection for sinusitis is granted. REMANDED Entitlement to service connection for a skin condition, to include lipoma and a rash, is remanded. FINDINGS OF FACT 1. The March 2014 rating decision that denied service connection for sinusitis is final. 2. Evidence received since the March 2014 rating decision is both new and material to the claim of entitlement to service connection for upper respiratory symptoms, to include allergic rhinitis and sinusitis. 3. The Veteran is presumed to have been exposed to fine, particulate matter during service in Southwest Asia during the Persian Gulf War, and his currently diagnosed rhinitis and sinusitis became manifest to a compensable degree within 10 years from both his date of separation from service and his service in Southwest Asia. CONCLUSIONS OF LAW 1. The March 2014 rating decision is final with respect to the claim for service connection for upper respiratory symptoms, to include allergic rhinitis. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received subsequent to the last final decision is new and material and the claim of service connection for upper respiratory symptoms, to include allergic rhinitis, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.320. 4. The criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to May 2004, with service in the Southwest Asia theater of operations from April 2003 to March 2004. He also served in the West Virginia Army National Guard, including a period of active duty for training (ACDUTRA) from October 1995 to February 1996 . This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at the RO before a Decision Review Officer (DRO) in March 2015. A transcript of the hearing is associated with the claims file. The Veteran requested a hearing before the Board. In July 2021, counsel for the Veteran withdrew his request for a hearing and requested an additional 90 days to submit additional materials to assist with the claim. Accordingly, the Board finds that the Veteran has withdrawn his request for a hearing and that his 90-day extension for submission of additional evidence expired on October 8, 2021. In January 2022, VA received a letter from the Veteran's attorney waiving consideration by the RO of any documents submitted after its last adjudication. The remaining claims are now appropriate for adjudication. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability). Therefore, in consideration of the holding in Brokowski, the Board has recharacterized the claim for service connection for upper respiratory symptoms, to include allergic rhinitis, as reflected above. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate a claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms "new" and "material," for the purposes of this provision, are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). "Relevant" means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 134143 (Fed. Cir. 2020). In other words, to be relevant, the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. 1. Whether new and material evidence has been received to reopen the claim for service connection for respiratory symptoms, to include allergic rhinitis and sinusitis. In an October 2011 rating decision, the RO denied the Veteran's claim for service connection for sinusitis based upon the rationale that the disorder existed prior to service in Southwest Asia, allergy testing that confirmed reactions to local allergens, and no evidence of complaints, treatment, or diagnosis of sinusitis or related conditions in the Veteran's STRs. The Veteran was notified of his appellate rights, but did not appeal the decision or submit new and material evidence during the applicable one-year appellate period. Thus, the October 2011 rating decision is final with respect to the claim for service connection for respiratory symptoms to include allergic rhinitis and sinusitis. Evidence received by VA since the October 2011 rating decision became final includes private medical records from the Veteran's primary care physician, Dr. E., received September 2013; a VA Gulf War general medical examination report dated February 2014; and a VA sinus examination report dated February 2014. This evidence is new, in that it was not previously submitted to agency decision makers; and it is material, in that it addresses previously unestablished facts. Furthermore, the evidence is not redundant and it raises a reasonable possibility of substantiating the Veteran's claims. Therefore, reopening of the claim for service connection for upper respiratory symptoms, to include sinusitis and allergic rhinitis, is warranted. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection a Veteran must show: (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. Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Effective August 5, 2021, VA revised 38 C.F.R. § 3.320. These revisions apply to all claims received by VA on or after August 5, 2021, or that were pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021. 86 Fed. Reg. 42724. As of August 5, 2021, under 38 C.F.R. § 3.320, if a veteran was exposed to particulate matter during active military service, certain chronic diseases, including asthma, shall be service-connected if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military 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). The Veteran's DD Form 214 demonstrates that he served in Iraq/Kuwait from April 2003 to March 2004. Accordingly, the Veteran is presumed to have been exposed to particulate matter during service. 38 C.F.R. § 3.320(a)(4). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for respiratory symptoms, to include allergic rhinitis and sinusitis. The Veteran contends that his respiratory symptoms had onset in or are otherwise related to his service. As an initial matter, the Board finds that the Veteran's service placed him in Iraq during the Persian Gulf War. Based on this fact, he is found to have been exposed to particulate matter. Service treatment records reflect that the Veteran specifically denied having ear, nose or throat trouble, frequent colds, sinusitis, or hay fever, and the June 1995 enlistment examination report did not indicate any respiratory or sinus issues. In a June 2000 Report of Medical History, the Veteran noted that he was in excellent health, that he used snuff and smoked cigarettes, and specifically denied having sinusitis and allergic rhinitis, asthma, or frequent colds. He had a normal clinical examination of his nose and sinuses. In a January 2002 Initial Medical Review - Annual Medical Certificate, he denied having any medical problems and did not report taking any medications. In a January 2003 Initial Medical Review - Annual Medical Certificate, the Veteran noted that he was currently taking Allegra. Private treatment records indicate that the Veteran was prescribed Allegra-D by his primary care physician in December 2002 after complaints of significant sinus drainage which "close[d] off his throat." In November 2003, the Veteran sought medical treatment for flu-like symptoms and sinus congestion with yellow/green rhinorrhea. He was diagnosed with an upper respiratory infection and prescribed an antibiotic, a cough medicine, and Allegra. Private treatment records indicate that in May 2006, the Veteran complained of allergies and sinus issues. A May 2009 Persian Gulf Registry examination report indicates that the Veteran reported having nose bleeds while in Iraq that started three to four months after he arrived in Iraq. He reported still getting nose bleeds, occurring a couple of tmes a month. He also reported having "bad" sinus problems that started immediately after he returned from Iraq. The Veteran reported being exposed to second hand smoke, smoke from oil fires, smoke from fumes of tent heaters, diesel/other petrochemicals, paints/solvents, pesticide use, contaminated food or drink, food or drink other than given by military, and sodium diochromate. He reported using tobacco two or three times a day. Upon clinical examination his nares were clear, and the pharynx was without exudate or inflammation. He reported having frequent sinus congestion and drainage with post-nasal drip. He was taking Allegra-D. The examiner diagnosed rhinitis, as well as possible sinusitis. In November 2009, the Veteran was afforded VA Gulf War Guidelines and Respiratory System examinations for VA disability compensation purposes. He reported problems with nose bleeds began when he was in Iraq. The nose bleeds occurred a couple of times a month until approximately one and a half years ago, when they began occurring every couple of months. His last nose bleed was approximately 3 weeks ago. The bleeding began for no apparent reason and stopped in a few minutes. He had no history of nasal trauma or surgeries. No history of nasal allergy or sinusitis was indicated. His current rhinitis symptom was nasal congestion, and current sinusitis symptoms included purulent nasal discharge and sinus tenderness. He had occasional breathing difficulty. He reported having post nasal drip, especially at night, waking up with a sore throat most morning, and constant nasal and sinus congestion. On examination, there were no signs of nasal obstruction. CT imaging of the sinuses identified no sinusitis. The Veteran also reported shortness of breath when walking up hill, which he first noted in 2004. He indicated that he quit smoking in 2002, and had smoked 1 pack every 3-4 days prior to quitting. His current medications included singular and Symbicort inhaler. He had no history of asthma, but reported having a cough that was intermittent and less than daily. He had a history of occasional dyspnea on severe exertion. Chest x-rays were normal. Spirometry showed mild airflow obstruction and mild air trapping. He was diagnosed with mild chronic obstructive pulmonary disease (COPD) etiologically related to environmental hazards. Private treatment records reflect a February 2010 consultation with a pulmonologist, the Veteran was experiencing a lot of sinus drainage and shortness of breath with negative testing for asthma and lung abnormalities. A March 2010 private treatment record indicated that the Veteran complained of chronic nasal congestion since May 2004, since his return from Iraq. He had postnasal drip as well. On examination, his nasal mucosa was enflamed and he had lymphoid hyperplasia on the posterior oropharyngeal wall, indicative allergic rhinitis. Sinus x-rays were within normal limits. Allergen sensitivity testing in March 2010 showed positive reactions to house dust, trees, weeds, ragweed, and dust mites. An August 2010 private operative report indicates that the Veteran had his uvula removed due to enlargement. A March 2011 private treatment record indicated that the Veteran was seen for followup for allergies and reported having a lot of sinus congestion. On examination his nose was a bit congested and clear rhinorrhea was noted bilaterally. In June 2011, the Veteran underwent nasal surgery with a private provider, specifically coblation of both inferior nasal turbinates and resection of right concha bullosa, which achieved decreased nasal congestion postoperatively. His diagnoses of inferior turbinate hypertrophy, right concha bullosa, and chronic rhinitis were the same both pre- and post-surgery. In February 2014, the Veteran underwent VA examination for sinusitis and rhinitis. Diagnoses of allergic rhinitis and recurrent sinusitis were noted. The Veteran denied allergy or sinus problems prior to Iraq, and stated that he first developed problems with his sinuses in 2004 when he came back from Iraq. He reported having chronic, constant nasal congestion. The Veteran reported having thick mucus in his throat in the morning that made him feel like choking. Upon examination, the Veteran was not currently affected by sinusitis. The examiner found permanent hypertrophy of the nasal turbinates, but no evidence of current sinusitis. The examiner noted that chronic rhinitis and recurrent sinusitis was less likely than not caused by or the result of a specific exposure event experienced by the Veteran during service in Iraq. As rationale he noted that the Veteran was treated for these symptoms in 2002 prior to his service in the Gulf War and allergy testing noted reactions to locally found allergens. The Board finds this opinion inadequate, as the rationale is conclusory and does not explain why the pre-service treatment in 2002 indicates a pre-existing condition or whether any pre-existing condition was aggravated by service. Furthermore, the examiner did not consider the Veteran's presumed exposures to particulate matter during service. As the opinion is inadequate, it is afforded little, if any, probative weight. In December 2016, the February 2014 VA examiner provided an addendum medical opinion addressing whether the Veteran's rhinitis/ sinusitis condition that the examiner had opined existed prior to service was aggravated by service. The examiner opined that the rhinitis/sinusitis, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner noted that allergic rhinitis is a life-long condition. Records revealed allergy/sinus issues requiring medication usage (Allegra) dating back to 2002 and demonstrate that his current symptoms were a continuation of his condition in 2002. The examiner opined that allergic rhinitis is a lifelong condition, and concluded that there is nothing in the records to indicate that service in Iraq permanently aggravated this condition. The Board finds this opinion inadequate, as it relies on the inadequate February 2014 opinion that the Veteran's sinusitis and rhinitis issues existed prior to service. In addition, it does not provide an adequate explanation of why the records do not indicate that the Veteran's service in Iraq did not permanently aggravate this condition, despite the Veteran's extensive treatments, including multiple surgeries, to treat his sinus condition and rhinitis subsequent to his service in Iraq. Finally, the examiner did not consider the Veteran's presumed exposures to particulate matter during service. As the opinion is inadequate, it is afforded little, if any, probative weight. Therefore, as sinusitis and allergic rhinitis are both chronic diseases presumed to be associated with exposure to fine, particulate matter, service connection is warranted on a presumptive basis as sinusitis and rhinitis were diagnosed within 10 years of the Veteran's separation from active service as well as his service in Iraq. There is no competent and adequate evidence to support a different etiology. Therefore, the claims are granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, supra. REASONS FOR REMAND 3. Entitlement to service connection for a skin condition, to include lipoma and a skin rash. The Veteran contends that he has a skin condition, including lipoma and a skin rash, that had onset in or are otherwise related to service. In February 2014, the Veteran was afforded a VA examination for skin conditions. The Veteran discussed that over the last couple of years, his skin hurt to the touch on his anterior thighs, bilateral arms, and scalp. He denied skin lesions or rashes. He also mentioned fatty tumors removed from his right arm pit. Upon examination there were no skin lesions or rashes but there was evidence of a scar under the right arm pit, without evidence of a recurrent lipoma. The examiner concluded that lipoma was less likely than not a result of a specific exposure event during service in Southwest Asia. The skin sensitivity symptoms were noted to be a somatic manifestation of the Veteran's post-traumatic stress disorder and not a separate condition. Subsequently, the Veteran testified at the March 2015 RO hearing that he began to have skin rash in service. Specifically, he testified that he had an intermittent/recurrent rash on his midsection on both sides that was present on the right side at the time of the hearing. In addition, a March 2015 private treatment record indicated that the Veteran had a mild rash near his belt line that at times welts up and itches. The etiology of this skin rash was not addressed by the February 2014 VA examiner, and there is no competent etiology opinion of record. Therefore, the Board finds that remand is warranted to obtain a VA examination and opinion to assist in determining the etiology of the Veteran's reported recurrent skin rash. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination, preferably during an active stage of his reported skin rash, to determine the nature and etiology of any current skin rash rash. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner(s). All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail. After examination of the Veteran and review of the claims file, the examiner should: (a) Indicate whether the Veteran has had any recurrent or intermittent skin rash since the filing of the claim. If so, please describe the signs and symptoms of any identified skin rash. (b) Provide an opinion as to whether EACH identified skin rash at least as likely as not (i.e., 50 percent or greater probability) had its onset during service or is otherwise related to service. 2. Then, readjudicate the remaining issue on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, Associate 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.