Citation Nr: 22019902 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-01 452 DATE: April 3, 2022 ORDER Entitlement to service connection for a variously diagnosed nasal disability to include sinusitis and allergic rhinitis is granted. FINDING OF FACT The Veteran's sinusitis and allergic rhinitis disabilities are attributable to service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSION OF LAW The criteria for service connection for sinusitis and allergic rhinitis have been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317, 3.320. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military duty from March 1976 to August 1976; and from January 1991 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. In a January 2020 decision, the Board denied the Veteran's claims for, among others, service connection for sinusitis and an acquired psychiatric disability to include posttraumatic stress disorder (PTSD). Thereafter, the Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court), and the parties entered into a Joint Motion for Partial Remand (JMPR). In the October 2020 JMPR, the parties limited their appeal to the denial of sinusitis and a psychiatric disability; they specifically did not want to disturb the denials of the other issues. See October 2020 JMPR. In a March 2021 decision, the Board denied the Veteran's claims. Thereafter, the Veteran appealed the March 2021 Board decision to the Court, and the parties entered into a JMPR. In the December 2021 JMPR, the parties limited their appeal to the denial of sinusitis. See December 2021 JMPR. 1. Entitlement to service connection for sinusitis In general, service connection will be granted for a current disability that results from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). For certain chronic diseases shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. For the listed chronic diseases, service connection may be presumed based on a continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Provisions relating to presumed service connection do not limit the ability to establish service connection based upon adequate evidence of actual causation. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection may be granted to a Persian Gulf War veteran if there is a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and the symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; see also Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order). A Persian Gulf War veteran is a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War after August 2, 1990. 38 C.F.R. §§ 3.2(i). 3.317(e). This includes service in Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, and other specified locations. 38 C.F.R. § 3.317(e). Under 38 C.F.R. § 3.320, relating to claims based on exposure to particulate matter, a veteran who has a qualifying period of service shall be presumed to have been exposed to fine, particulate matter during such service, unless there is affirmative evidence to establish that he or she was not exposed to fine, particulate matter during that service. A qualifying period of service means any period of active military, naval, or air service in the Southwest Asia theater of operations, as defined in § 3.317(e)(2), during the Persian Gulf War as defined in § 3.2(i), or service in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, during the Persian Gulf War as defined in § 3.2(i). A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or any diagnosed illness that VA determines in regulations warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). With respect to claims based on exposure to particulate matter, the chronic diseases of asthma, rhinitis, and sinusitis, to include rhinosinusitis, shall be service- connected even though there is no evidence of such disease during the period of service 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. 38 C.F.R. § 3.320(a)(1). This presumption of service connection shall not apply, however, if there is affirmative evidence that asthma, rhinitis, or sinusitis, to include rhinosinusitis, was not incurred during or aggravated by a qualifying period of service, or that 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 that the disease is the result of the veteran's own willful misconduct. 38 C.F.R. § 3.320(b). The Veteran asserts that he has a chronic disability to include allergic rhinitis and sinusitis because of his military service. Indeed, he indicates that his disability started after his return from Desert Storm due to him breathing all the smoke from them having to burn all their feces. In a September 1999 VA treatment record, the Veteran reports symptomatology of allergic rhinitis and sinusitis. He indicated that such was due to exposure to smoke from burn pits while serving on active duty. During the October 2015 VA examination, the Veteran reported that he started to experience sinusitis within the past few years. He also indicated that in 1990 to 1991 while he was overseas, he was told it was due to the weather change and the dry heat. The examiner diagnosed chronic sinusitis and allergic rhinitis with cyst/polyps. The Board observes that throughout the appeal period, the Veteran has been variously diagnosed with a nasal disability to include sinusitis and allergic rhinitis. Further, the Veteran's service personnel records establish that he served in Southwest Asia. Under the standard set forth in 38 C.F.R. § 3.320, the Veteran's current allergic rhinitis and sinusitis are presumptively related to his service in Southwest Asia. Accordingly, service connection is warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.