Citation Nr: 22041007 Decision Date: 07/18/22 Archive Date: 07/18/22 DOCKET NO. 19-32 544 DATE: July 18, 2022 ORDER Service connection for bilateral tinnitus is granted. Service connection for sinusitis is granted. REMANDED Service connection for hearing loss is remanded. Service connection for a respiratory disability or breathing condition with cough, to include shortness of breath due to a cardiac disability, is remanded. FINDINGS OF FACT 1. The Veteran has experienced tinnitus or ringing in the ears on a persistent and recurring basis since service. 2. The Veteran's sinusitis is presumed due to exposure to fine particular matter (burn pits) during service, and there is no affirmative evidence to the contrary. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for 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 FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the U.S. Army from June 1978 to June 1981 and September 1981 to September 1992, with prior inactive service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision. Although the Veteran also initiated an appeal from the denial of service connection for rhinitis, that benefit was fully granted in September 2019. The Veteran testified for this appeal at a virtual Board hearing in July 2022. At that time, he testified that his claimed respiratory or breathing condition has different symptoms that his rhinitis or sinusitis, and there is evidence of a shortness of breath issue that may have cardiac involvement. Therefore, this claim is expanded all conditions encompassed by the lay and medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Service Connection 1. Service connection for bilateral tinnitus Generally, in order to prove service connection, a veteran must show: (1) a present 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, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Notably, tinnitus is considered an organic disease of the nervous system, which is listed as a chronic disability in the controlling regulation. It is also a disability that does not require medical expertise to diagnose, given that it is wholly observable through lay senses, and requires no testing to confirm. During his January 2022 Board hearing, the Veteran credibly testified that he experienced symptoms of tinnitus while in service while serving as an artillery surveyor, and as a flight mechanic, with noises so loud he could feel the sound through his teeth and bones. He also credibly testified that he has had a degree of ringing ever since service, although he did not get it checked out as he did not realize it was something to mention. Furthermore, he clarified that while it had become much worse in the last five or six years, he had had it since service. The Veteran is competent to report observable symptoms of tinnitus, such as ringing in the ears, and to diagnose the condition because it is subjective in nature. A May 2014 VA treatment record noted reports of tinnitus. The Board resolves reasonable doubt in the Veteran's favor to find that his condition has been present since service. The claim is granted. 2. Service connection for sinusitis The Veteran seeks service connection for sinusitis based on treatment for colds or viruses and sinus headaches in service related to exposure to burn pits during service in the Persian Gulf War. During a June 2015 VA examination, he reported ongoing nasal symptoms that began after he returned from deployment to Iraq. Similarly, during an October 2019 VA examination, he reported that his sinus problems began when he returned from Iraq, with frequent nose bleeds and a very runny nose. He stated that he was told in 1993 that he needed to have an evaluation of his nose due to burning chemicals that he was exposed to while deployed. Although VA examination reports in June 2015 and July 2015 diagnosed non-allergic rhinitis, x-rays of the sinus were not performed or considered. In October 2019, x-rays were performed and the VA examiner diagnosed chronic sinusitis. Despite a negative nexus opinion from the October 2019 VA examiner, service connection is now warranted on a presumptive basis based on a new regulation. Effective August 5, 2021, VA amended its regulations to establish presumptive service connection for chronic diseases of asthma, rhinitis, and sinusitis, to include rhinosinusitis, in association with exposure to fine particulate matter (including smoke from open burn pits) for Veterans who served in the Southwest Asia theater of operations during the Persian Gulf War as defined in 38 C.F.R. §§ 3.317(e)(2) and 3.2(i), as well as Afghanistan, Syria, Djibouti, and Uzbekistan on or after September 19, 2001. The condition must be manifested to any degree, including non-noncompensable, within 10 years after qualifying service. The presumption will be rebutted by affirmative evidence contradicting exposure to fine particular matter in service, or establishing that the disease was not incurred or aggravated during a qualifying period of service, or that it was caused by a supervening condition or event, or that it is the result of the Veteran's own willful misconduct. 38 C.F.R. § 3.320(b) (2021); 86 Fed. Reg. 42724 -42732 (Aug. 5, 2021). The Veteran's DD Form 214 reflects that he received the Southwest Asia Service medal with three bronze service stars. Contemporaneous treatment records are not required to show observable symptoms, and the Veteran has made competent and credible reports of symptoms of sinusitis within 10 years after qualifying service. There is no affirmative evidence to rebut the presumption. The claim is granted. REASONS FOR REMAND 1. Service connection for hearing loss is remanded. A remand is needed for a VA examination. During his January 2022 Board hearing, the Veteran asserted that he has hearing loss due to hazardous noise exposure during service. He described noise exposure from artillery and on the flight line as a flight mechanic, and he stated that sometimes his hearing protection would fall out. The Veteran reported that he first noticed his hearing getting really bad around 1994. He reported little noise exposure after service and that he used hearing protection that was better than what he had in service. Notably, for hearing loss to be considered a disability, it has to reach a level of severity prescribed by regulation. See 38 C.F.R. § 3.385. The Regional Office denied the Veteran's claim because a December 2014 VA examination demonstrated hearing loss that had not reached the level of severity to qualify as a disability. As the Veteran's hearing loss may have worsened since 2014, a new examination should be provided to determine whether he has a hearing loss disability, and if so, if it is related to his service. 2. Service connection for a respiratory or breathing condition with cough, to include shortness of breath from a cardiac disability, is remanded. A remand is needed for a VA examination. During his January 2022 Board hearing, the Veteran asserted that he has a respiratory or breathing condition with a cough due exposure to burn pits and other environmental hazards during his Persian Gulf service. He stated that he did not seek treatment during service because he did not feel it was important enough. An October 2019 VA examination found no respiratory or pulmonary diagnosis based on pulmonary function tests (PFTs) and a chest x-ray, and the Veteran was granted service connection for allergic rhinitis and now sinusitis for symptoms. However, the Veteran testified that his symptoms of breathing problems while lying on his back, or upon exertion, are different than his symptoms for sinusitis and rhinitis. He reported current treatment, including for cardiology, at VA facilities. He had gone to the emergency room and recalled getting an ultrasound and being told that his heart was not getting enough oxygen and he had too much fluid around his heart. Similarly, a January 2020 VA emergency record and addendum noted complaints of chest pain and dyspnea on exertion or walking up a flight of steps that had been progressively worse over the past week or month. The Veteran had no history of asthma, PFTs were normal in October 2019, and he had no cigarette history. He reported that his father and two siblings had myocardial infarctions in their early 60s. The diagnosis was angina with new EKG changes (compared to 2015) and elevated BNP (B-type natriuretic peptide) and increasing cardiomegaly. A VA examination is needed to address the Veteran's claimed respiratory or breathing condition, to include shortness of breath due to a cardiac disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his hearing loss. The examiner should state whether any current hearing loss that meets the VA disability criteria was at least as likely as not incurred as a result of in-service noise exposure. The examiner is advised that the Veteran is competent to report noticeable symptoms without documented medical treatment, although a lack of treatment may be relevant. The examiner should explain the reasons behind any opinions and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Schedule the Veteran for an examination to determine the nature and etiology of his respiratory or breathing and cough complaints, to include whether he has shortness of breath due to cardiac disease. The examiner should state whether any current respiratory diagnosis or cardiac diagnosis with shortness of breath and cough was at least as likely as not incurred as a result of in-service exposure to burn pits or other environmental hazards while in the Persian Gulf, is or otherwise directly related to service. The examiner is advised that the Veteran is competent to report noticeable symptoms without documented medical treatment, although a lack of treatment may be relevant. The examiner should explain the reasons behind any opinions and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.