Citation Nr: 22040178 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 17-29 468 DATE: July 13, 2022 ORDER Entitlement to service connection for a respiratory disorder, diagnosed as allergic rhinitis, is granted. REMANDED Entitlement to service connection for fibromyalgia, to include joint pain, is remanded. FINDING OF FACT The Veteran's allergic rhinitis manifested within 10 years of his active service in Afghanistan during the Persian Gulf War. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, diagnosed as allergic rhinitis, have been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.304, 3.317, 3.320(a)(2)(ii). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1991 to August 2012, including service in Afghanistan from April 2009 to April 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2019, April 2020, and September 2021 when they were remanded for additional development. Entitlement to service connection for a respiratory disorder, to include rhinitis. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110. To establish service connection, the evidence must show: (1) the existence of a current disability; (2) an 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. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). During the pendency of this appeal, VA regulations were amended to allow for presumptive service connection for Veterans who served in the Southwest Asia theater 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). The law provides that if a Veteran was exposed to particulate matter 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. 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). A review of the military personnel records confirm the Veteran served in Afghanistan from April 2009 to April 2010, during the Persian Gulf War and is presumed to have been exposed to exposed to fine, particulate matter during such service. See May 2014 DRPIS Response. A review of the STRs show that in a May 2010 post-deployment health assessment, following service in Afghanistan for 12 months, the Veteran reported he was exposed to sand/dust and smoke from burning trash or feces. See April 2012 STR Medical. A December 2011 STR noted the Veteran's upper respiratory infection (URI). STRs in February 2012 also show the Veteran's active medications included nasal decongestants (pseudoephedrine) and antihistamine (diphenhydramine) with a last fill date in 2010. See April 2012 STR Medical Photocopy. Post-service, an April 2013 VA treatment records show that he had an assessment of allergic rhinitis. See May 2014 CAPRI. In a June 2014 Gulf War General Medical Examination, the Veteran reported onset of symptoms in 2009, reporting he had facial pressure, watery eyes, postnasal drip, rhinorrhea, and congestion. He indicated that since his deployment, he continued to have symptoms and was prescribed sinus medications and nasal spray. The examiner noted a diagnosis of allergic rhinitis. See June 2014 C&P Exam. The Veteran submitted an opinion in support of the claim in December 2016. The private examiner opined that it is at least as likely as not that the Veteran's current respiratory condition is due to exposure from Gulf War during Operation Enduring Freedom in Afghanistan. See December 2016 Medical Treatment Record Government Facility. In a May 2020 VA examination, the examiner indicated the Veteran's most likely diagnosis was exercise-induced asthma and noted that exercise-induced asthma was a separate condition from asthma and is not actually asthma. The examiner based the provisional diagnosis of exercise-induced asthma on the Veteran's statements and noted that this rationale was based on the absence of reliable pulmonary functions tests (PFTs) and should PFTs be obtained, the rationale would be subject to change based on the results. See May 2020 C&P Exam. An October 2021 VA examination confirms the Veteran's diagnosis of allergic rhinitis and that he takes daily medication to control symptoms. The examiner noted the Veteran's reports that he started having symptoms of congestion, runny nose, and sneezing when he was deployed to Afghanistan for a year from 2009 to 2010, that he was in contact with burn pits at that time, and that the symptoms continued once he got back home. See October 2021 C&P Exam. In a February 2022 VA examination, the examiner noted that PFTs revealed the Veteran did not have any respiratory condition, to include exercise-induced asthma, and did not use an inhaler or other medication. See February 2022 C&P Exam. Regarding the May 2020 VA examiner's provisional diagnosis of exercise-induced asthma, the probative evidence of record shows that following PFTs, there is no actual confirmed diagnosis of asthma. A review of the Veteran's treatment records also does not show a confirmed diagnosis of asthma and the Veteran has not otherwise contended a formal diagnosis of asthma. Nevertheless, the Board finds that the Veteran's confirmed diagnosis of allergic rhinitis is presumptively related to service in Afghanistan during the Gulf War. See 38 C.F.R. § 3.320. The Veteran reported exposure to particulate matter, to include reports of such exposure in the STRs, and STRs showing the Veteran experiencing respiratory symptoms during such service. Furthermore, the medical evidence shows that he has been diagnosed with rhinitis and also indicates that the condition had its onset within 10 years of the Veteran's discharge. The Board acknowledges that the July 2016, July 2019, and September 2020 VA examiners opined that the Veteran's rhinitis was not due to environmental exposure in Southwest Asia as the record notes only one in-service medical encounter where URI was diagnosed in 2009 and did not show chronicity of care. See July 2016 C&P Exam, July 2019 C&P Exam, and September 2020 C&P Exam. 38 C.F.R. §3.320(b) provides that service connection will not be presumed if there is affirmative evidence that the disease was not incurred during service, it was caused by a supervening condition or event, or is the result of the Veteran's own willful misconduct. However, these negative nexus opinions do not overcome the presumption especially given that the medical opinions were done without knowledge of the presumption or the studies underlying it. The examiners also failed to consider subsequent reports of URI and active medications that included decongestants and antihistamines in 2010, 2011, and 2012. Therefore, the July 2016, July 2019, and September 2020 VA opinions are entitled to low probative value. After resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran served in Southwest Asia during the Gulf War and has allergic rhinitis that manifested within 10 years of discharge. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.320. Accordingly, service connection is warranted for a respiratory disorder, specifically allergic rhinitis. REASONS FOR REMAND Entitlement to service connection for fibromyalgia, to include joint point, is remanded. A review of the February 2022 VA examination shows that the VA examiner has indicated there is possibly an alternative diagnosis such as osteoarthritis. Specifically, the examiner found it was possible that the Veteran's pain symptoms had an alternative diagnosis such as osteoarthritis, noting the Veteran had been diagnosed with low back strain with degenerative arthritis and that this condition was likely the source of his shoulder and lower extremity pain. See February 2022 C&P Exam. Thus, a remand is necessary to obtain an etiology on any alternative diagnosis related to the Veteran's pain symptoms and if it had its onset during military service or is otherwise related to a service-connected disability, to include low back disability. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and identified private treatment records. 2. Thereafter, obtain an addendum to the February 2022 opinion regarding the Veteran's claim for fibromyalgia. An examiner who has expertise in fibromyalgia is requested, if available. Any indicated special testing should be undertaken. (a) The examiner should determine whether the Veteran's documented history of chronic pain is a manifestation of a pain disorder that the Veteran currently experiences or has experienced during the pendency of the appeal, to specifically include fibromyalgia. If the answer is in the negative, the examiner should provide alternative diagnoses that account for all of the Veteran's documented chronic pain symptomatology and should further provide a rationale as to why they believe these alternative diagnoses are more appropriate. The examiner should address the February 2012 STRs noting myalgia. The examiner should also address the July 2018 and November 2018 private medical records indicating diagnoses of fibromyalgia. Any x-rays or other testing to determine a specific diagnosis(es) should be undertaken as part of the examination. (b) For any alternative diagnosis, the examiner should opine as to whether it is at least as likely as not that each diagnosis was incurred in or otherwise is attributable to service, to include as due to presumed environmental exposures experienced by the Veteran during service in Southwest Asia. In particular, the examiner should opine as to whether the Veteran has osteoarthritis, to include in his shoulders and lower extremities, as theorized by the February 2022 VA examiner. Please explain why or why not. (c) For any alternative diagnosis, the examiner should opine as to whether it is at least as likely as not that each diagnosis is caused by any service-connected disability. (d) For any alternative diagnosis, the examiner should opine as to whether it is at least as likely as not that each diagnosis is aggravated by any service-connected disability. In responding to the above inquiries, the examiner must acknowledge that VA has conceded hazardous environmental exposures associated with Gulf War service. (Continued on the next page) The examiner should note the Veteran is service connected for obstructive sleep apnea, PTSD, pseudofolliculitis barbae scarring, IBS with GERD, diabetes mellitus, right knee DJD with shin splints, right ankle DJD, left ankle DJD with achilles tendon, low back strain with degenerative arthritis, left knee strain with shin splints, left foot metatarsalgia with plantar spur, left great toe hallux valgus, radiculopathy of left lower extremity, erectile dysfunction, pseudofolliculitis barbae, and left foot callous. All opinions must be supported by a detailed rationale. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.