Citation Nr: 24002725 Decision Date: 01/18/24 Archive Date: 01/18/24 DOCKET NO. 18-00 276A DATE: January 18, 2024 ORDER Entitlement to service connection for bilateral upper extremity radiculopathy is dismissed. Entitlement to service connection for a cervical spine disability is granted. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability (claimed as secondary to a right ankle disability) is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a disability manifested by dizziness and poor balance, to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. Entitlement to service connection for a heart condition, to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. Entitlement to service connection for a sinus disorder (claimed as congestion and rhinitis), to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. Entitlement to service connection for a respiratory disorder (claimed as difficulty breathing), to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. FINDINGS OF FACT 1. At the August 2023 Travel Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew this appeal seeking service connection for bilateral upper extremity radiculopathy, as such disabilities have been granted by a January 2022 rating decision. 2. Resolving all doubt in the Veteran's favor, the Veteran's cervical spine disability is as likely as not related to the Veteran's in-service injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking service connection for bilateral upper extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the U.S. Navy from May 1978 to May 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision. In December 2019, a Board hearing was held in Washington, DC before a Veterans Law Judge who is no longer with the Board. In April 2020, the Board remanded these matters for additional development. In March 2022 correspondence, the Veteran was notified that the Veterans Law Judge who conducted the December 2019 Board hearing was no longer with the Board. In July 2022 correspondence, the Veteran selected to have a new in-person hearing at a local VA Regional Office. In August 2023, a Travel Board hearing was held before the undersigned. 1. Entitlement to service connection for bilateral upper extremity radiculopathy. A January 2022 rating decision granted service connection for left upper extremity radiculopathy, and service connection for right upper extremity radiculopathy, and assigned each a 20 percent rating, effective January 17, 2012. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the appeal seeking service connection for upper extremity radiculopathy, as such disability has already been granted, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a cervical spine disability. An August 1990 cervical spine series X-Ray notes a history of the Veteran hitting a beam with the top of his head. The cervical spine X-Ray did not show any compression fracture or misalignment. In a March 2021 peripheral nerves condition examination, the diagnosis was chronic cervical radiculopathy of the right and left upper extremities (1990). The Veteran reported that he hit his head on a forklift in 1990 and had a neck injury. He reported that since that time he has had problems with his neck and pain radiating down his arms to his hands. He reported he had cervical surgery in approximately 2016, but it did not help. In a March 2021 medical opinion, the clinician opined that it was at least as likely as not that the Veteran's bilateral upper extremity radiculopathy was incurred in or caused by the in-service injury. The clinician noted the Veteran did not have a problem with his neck and did not have bilateral upper extremity radiculopathy prior to his 1990 injury. In a separate March 2021 medical opinion, the clinician opined that it was at least as likely as not that the Veteran's diagnosis of peripheral nerve injury with chronic bilateral cervical radiculopathies are related to the Veteran's service. The clinician noted the Veteran's injury were documented at the time of the incident, and that the Veteran went on to have surgery. The clinician note the Veteran still has chronic problems in his neck and arms from this injury. In an April 2021 neck conditions examination, the diagnosis was cervical strain (listed date of diagnosis given as June 2021). The Veteran reported neck symptoms following his in-service injury where he hit his head on a forklift. In an April 2021 medical opinion, the clinician opined that it was less likely than not that the Veteran's neck disability was related to service due to a lack of ongoing neck symptoms. In a December 2021 addendum opinion, the clinician opined that it was less likely than not that the Veteran's neck disability was related to service due to a lack of chronic residuals. It is not in dispute that the Veteran has a current cervical spine disability. It is also not in dispute that the Veteran suffered an in-service injury in 1990 when he hit the top of his head on a forklift (the Veteran is already separately service connected for a traumatic brain injury (TBI) and bilateral upper extremity cervical radiculopathy related to this injury). In this instance there is some conflicting evidence as to whether the Veteran's current cervical spine disability is related to service. However, upon review of the evidence of record, the evidence in support of the Veteran's claim outweighs that against the evidence against the Veteran's claim. Under such circumstance, the evidence is at least in equipoise as to the matter of whether the Veteran cervical spine disability is related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, resolving all doubt in the Veteran's favor, the Board finds that service connection for a cervical spine disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.304. REASONS FOR REMAND The Board notes the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) expanded locations associated with service in the Persian Gulf theater. 38 U.S.C. § 1117(f). In addition, the PACT Act also created a new presumption for service connection for certain conditions based on exposure to burn pits and other toxins (BPOT) and added new examination requirements where toxic exposure risk activities (TERA) are implicated. 38 U.S.C. § 1119. A December 2022 VA Memorandum "Toxic Exposure Sec. 1119 Covered Veteran" indicates the Veteran has at least one qualifying deployment that satisfies the criteria for presumptive toxic exposure per 38 U.S.C. § 1119. A January 2023 VA Memorandum "Persian Gulf Veteran - Sec. 1117" indicates the Veteran has at least one qualifying deployment that satisfies the criteria for designation as a Persian Gulf Veteran as defined by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317(e). Therefore, the Veteran is considered a Persian Gulf veteran, and is also presumed to have been exposed to BPOT and TERA during that time. See 38 C.F.R. §§ 3.2, 3.317, 3.320(a)(5) (2022); see also PACT Act, Pub. L. 117-168. A veteran is considered to have been in sound condition except as to defects, infirmities, or disorders noted at entrance OR where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service. If it is found by clear and unmistakable evidence that the defect, infirmity, or disorder pre-existed service, then the veteran is entitled to a further presumption of aggravation that likewise is rebuttable only by clear and unmistakable evidence that the disability was not aggravated by service beyond the natural progression. See 38 U.S.C. § §§ 1111, 1153, 38 C.F.R. § 3.304 (b), 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 1. Entitlement to service connection for a right ankle disability is remanded. The Veteran's service treatment records note a July 1979 right ankle sprain. At the December 2019 and August 2023 hearings, the Veteran testified that his right ankle has been symptomatic since he injured it in service. In an April 2021 ankle conditions examination, the clinician noted the Veteran reported ongoing symptoms in the right ankle. However, in the corresponding medical opinion the clinician did not address these lay statements provided by the Veteran that he has continued to experience symptoms in the right ankle since his in-service injury. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Accordingly, a remand to obtain an examination and adequate medical opinion on this matter is necessary. 2. Entitlement to service connection for a left ankle disability (claimed as secondary to a right ankle disability) is remanded. The Veteran has alleged that he has a left ankle disability which is caused or aggravated by a right ankle disability. The Veteran has not put forth a direct service connection claim for service connection for a left ankle disability. The above decision has remanded the matter of entitlement to service connection for a right ankle disability. Accordingly, the matter of entitlement to service connection for a left ankle disability is inextricably intertwined with the matter of entitlement to service connection for a right ankle disability, and consideration of the claim must be deferred pending resolution of that claim. 3. Entitlement to service connection for a left knee disability is remanded. A February 1982 service treatment record notes the Veteran's left knee was examined due to chronic knee pain with clicking. At the December 2019 and August 2023 hearings, the Veteran testified that his left knee pain continued following the 1982 injury, and that he treated the pain with Motrin. In an April 2021 medical opinion addressing the left knee, the clinician did not address the Veteran's lay statements that he has continued to experience symptoms in the left knee since service. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Accordingly, a remand to obtain an examination and adequate medical opinion on this matter is necessary. 4. Entitlement to service connection for a right knee disability is remanded. An April 1991 service treatment record notes the Veteran was seen for complaints of pain in the right knee following running PT the day before. He reported a burning sensation. A right knee strain was suspected. At the December 2019 and August 2023 hearings, the Veteran reported continued pain in the right knee. In an April 2021 medical opinion addressing the right knee, the clinician did not address the Veteran's lay statements that he has continued to experience symptoms in the right knee since service. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Accordingly, a remand to obtain an examination and adequate medical opinion on this matter is necessary. 5. Entitlement to service connection for a disability manifested by dizziness and poor balance, to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. Additional development is necessary for the proper adjudication of this claim. The Veteran's primary theory of entitlement is that his symptoms of dizziness are related to his known exposure to Otto fuel in service. At the August 2023 Board hearing, the Veteran testified that he had episodes of dizziness while in service. The record as it relates to the Veteran's history of dizziness is extensive, and complex. In a May 1978 report of medical history, the Veteran reported a history of "dizziness of fainting spells." The May 1978 physician's summary clarifies that the Veteran experienced dizziness with exposure to excessive heat and was "NCD" (not considered disabling/disqualifying). In a March 2021 TBI examination, the Veteran reported symptoms of "intermittent dizziness." However, the clinician did not indicate that dizziness/vertigo was a TBI residual. In an April 2021 ear conditions examination, the diagnosis was benign paroxysmal positional vertigo. The Veteran reported the onset of dizziness as "during service" and attributed the dizziness he experienced in service to his exposure to Otto fuel. In an April 2021 medical opinion, the clinician opined that it was less likely than not that the Veteran's claimed disability of dizziness was related to service due to a lack of reporting dizziness in service. The clinician stated the Veteran had a post-service diagnosis of positional vertigo in 2018. At an April 2021 hearing loss and tinnitus examination, the Veteran reported episodic vertigo. The clinician noted the presence of episodic vertigo. In a January 2022 medical opinion, the clinician opined that it was less likely than not that the Veteran's benign paroxysmal positional vertigo was related to the Veteran's service. In an August 2022 TBI examination, the Veteran reported symptoms of "intermittent dizziness." However, the clinician did not indicate that dizziness/vertigo was a TBI residual. It is not in dispute that the Veteran has an extensive history of reporting episodes of dizziness. It is also not in dispute that due to the Veteran's military occupational specialty (MOS) of torpedomen, the Veteran was exposed to Otto fuel in service. Whether the Veteran's dizziness is related to the Veteran's in-service Otto fuel exposure or may be related to the Veteran's service-connected TBI, and/or service-connected migraine headaches is a medical question. Here, in-service exposure to Otto fuel is conceded, and the Veteran has consistently reported experiencing episodes of dizziness. However, although multiple medical opinions on this matter have been obtained, a clear medical opinion which outlines the etiology of the Veteran's reported symptoms of dizziness is not of record. Accordingly, a medical opinion which identifies an etiology for the Veteran's symptoms and provides a rationale for the opinion offered is necessary. 6. Entitlement to service connection for a heart condition, to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. Additional development is necessary for the proper adjudication of this claim. At the August 2023 Board hearing, the Veteran testified that he had a heart attack in approximately 2013 and continues to see a cardiologist. The Veteran contends that he has a heart condition due to exposure to Otto fuel in service. As noted above, it is not in dispute that due to the Veteran's MOS the Veteran was exposed to Otto fuel in service. Whether a diagnosed heart condition is related to the Veteran's in-service Otto fuel exposure is a medical question. An April 2021 medical opinion is against the Veteran's claim. However, such opinion does not consider the Veteran's reported ongoing cardiology care. Accordingly, a medical opinion which identifies an etiology for a diagnosed heart condition is necessary. 7. Entitlement to service connection for obstructive sleep apnea, to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. The Veteran contends that his currently diagnosed sleep apnea began in service. At the December 2019 and August 2023 Board hearings, the Veteran testified that he experienced symptoms such as falling asleep on watch in service, not sleeping at night, waking up at various times at night coughing trying to catch his breath, and loud snoring while in service. In an April 2021 medical opinion, the clinician opined that it was less likely than not that the Veteran's sleep apnea was related to service. However, as such opinion did not consider the Veteran's statements. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Whether the Veteran's allegations of sleep trouble in service are related to his currently diagnosed sleep apnea is a medical question. Accordingly, a medical opinion which considers the Veteran's statements alleging of manifestations of his currently diagnosed sleep apnea in service is necessary. 8. Entitlement to service connection for a sinus disorder (claimed as congestion and rhinitis), to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. In a May 1978 report of medical history, the Veteran reported a history of hay fever. In a physician's summary it was noted that the Veteran had hay fever which was controlled with medication. The Veteran continued to report hay fever on reports of medical history in service. The Veteran contends that his sinus disorder is related to service. Specifically, the Veteran contends that his sinus disorder is due to conceded exposure to Otto Fuel II, or exposure to asbestos. Additionally, as noted above, the Veteran satisfies the criteria for presumptive toxic exposure per 38 U.S.C. § 1119 and satisfies the criteria for designation as a Persian Gulf Veteran as defined by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317(e). Whether the Veteran's current sinus condition pre-existed service or is due to the Veteran's service is a medical question. Accordingly, a medical opinion which adequately considers all theories of entitlement is necessary. 9. Entitlement to service connection for a respiratory disorder (claimed as difficulty breathing), to include as due to in-service exposure to Otto Fuel II or asbestos is remanded. Further development of the record is necessary for proper adjudication of this claim. As noted above, the Veteran satisfies the criteria for presumptive toxic exposure per 38 U.S.C. § 1119 and satisfies the criteria for designation as a Persian Gulf Veteran as defined by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317(e). An April 2021 medical opinion is against the Veteran's claim based on the clinician's finding that the Veteran did not have a chronic diagnosis for a respiratory disorder. However, such opinion does not adequately address whether the Veteran's reports of respiratory symptoms may be symptoms of an undiagnosed illness related to the Veteran's service in Southwest Asia. Accordingly, a medical opinion which adequately addresses this question is necessary. The matters are REMANDED for the following action: 1. The AOJ should make copies of all pertinent records available to an appropriate clinician to conduct a medical examination and provide a medical opinion regarding the etiology of the Veteran's (1) right ankle, (2) left ankle, (3) right knee and (4) left knee disabilities. The clinician must provide a complete rationale for all findings and opinions below. Upon examination and review of the record (to include this Remand and the prior April 2020 remands and the Veteran's testimony provided in the December 2019 and August 2023 hearings), the clinician must respond to the following: (a.) Whether it is as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any right ankle disability is caused by service? The clinician must specifically address the Veteran's July 1979 in-service right ankle injury. (b.) If a right ankle disability is found to be related to the Veteran's service, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any left ankle disability is caused and/or aggravated by the Veteran's right ankle disability? (c.) Whether it is as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any left and/or right knee disability(ies) is/are caused by service? The clinician must specifically address the February 1982 service treatment record related to the Veteran's left knee, the April 1991 service treatment record related to the Veteran's right knee, and the Veteran's hearing testimony (August 2023 and December 2019) related to the Veteran's ongoing knee symptoms. (d.) If a diagnosed (1) right ankle, (2) left knee, and/or (3) right knee disability is determined to be unrelated to the Veteran's service, provide the etiology considered more likely and explain why that is so. (e.) If a diagnosed right ankle disability is shown to be related to service, but a left ankle disability is found to be unrelated to a right ankle disability, provide the etiology considered more likely for a left ankle disability and explain why that is so. 2. Schedule the Veteran for a VA TERA examination to address the nature and etiology of his dizziness. The examiner must review the complete claims file. A complete rationale for the examiner's opinions below must be provided, citing to specific evidence of record, as necessary. The examiner is advised that the Veteran's exposure to environmental toxins in service has been established. (a.) Identify (by diagnosis) each disability manifested by dizziness. (b.) Identify when any disability manifested by dizziness (as shown by the evidentiary record), i.e., was it (1) prior to, (2) during, or (3) after the Veteran's service? (c.) Is there evidence in the record which renders it undebatable from a medical standpoint that a disability manifested by dizziness pre-existed the Veteran's military service? If so, identify such evidence. (d.) If a disability manifested by dizziness is shown by clear and unmistakable evidence to have pre-existed a period of service, is there also evidence in the record that renders it undebatable, from a medical standpoint, that the disability manifested by dizziness was not aggravated by service? (i.e., that it did not increase in severity beyond the natural progression therein). (e.) If there is no clear and unmistakable evidence that a disability manifested by dizziness pre-existed a service, determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed dizziness is etiologically related to his service, to include as due to his established TERA. The clinician must specifically address in the clinical discussion the Veteran's conceded exposure to Otto fuel as part of his MOS in service. The examiner must consider: (i) the total potential exposure through all applicable deployments; and (ii) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (f.) Whether it is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed disability manifested by dizziness is caused and/or aggravated by the Veteran's service-connected TBI and/or his service-connected migraine headaches? (g.) If diagnosed disability manifested by dizziness is determined to be unrelated to the Veteran's service, and/or his service connected TBI and migraine headache disabilities, provide the etiology considered more likely and explain why that is so. 3. Schedule the Veteran for a VA TERA examination to address the nature and etiology of his heart condition. The examiner must review the complete claims file. A complete rationale for the examiner's opinions below must be provided, citing to specific evidence of record, as necessary. The examiner is advised that the Veteran's exposure to environmental toxins in service has been established. (a.) Identify (by diagnosis) each heart condition shown. (b.) Determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed heart condition is etiologically related to the Veteran's service, to include as due to his established TERA. The clinician must specifically address in the clinical discussion the Veteran's conceded exposure to Otto fuel as part of his MOS in service. The examiner must consider: (i) the total potential exposure through all applicable deployments; and (ii) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (c.) If a diagnosed heart condition is determined to be unrelated to the Veteran's service, provide the etiology considered more likely and explain why that is so. 4. Schedule the Veteran for a VA TERA examination to address the nature and etiology of his sleep apnea. The examiner must review the complete claims file. A complete rationale for the examiner's opinions below must be provided, citing to specific evidence of record, as necessary. The examiner is advised that the Veteran's exposure to environmental toxins in service has been established. (a.) Determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea is etiologically related to his service, to include as due to his established TERA. The clinician must specifically address the Veteran's allegations of symptoms such as falling asleep on watch in service, not sleeping at night, waking up at various times at night coughing trying to catch his breath, and loud snoring while in service. The clinician must also specifically address in the clinical discussion the Veteran's conceded exposure to Otto fuel as part of his MOS in service. The examiner must consider: (i) the total potential exposure through all applicable deployments; and (ii) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (b.) If sleep apnea is determined to not be caused by service, identify the etiology considered more likely, and explain why that is so. 5. Schedule the Veteran for a VA TERA examination to address the nature and etiology of his sinus disorder. The examiner must review the complete claims file. A complete rationale for the examiner's opinions below must be provided, citing to specific evidence of record, as necessary. The examiner is advised that the Veteran's exposure to environmental toxins in service has been established. (a.) Identify when the Veteran's sinus disorder disability was first manifested (as shown by the evidentiary record), i.e., was it (1) prior to, (2) during, or (3) after the Veteran's service? (b.) Is there evidence in the record which renders it undebatable from a medical standpoint that the Veteran's sinus disorder pre-existed the Veteran's military service? If so, identify such evidence. (c.) If the Veteran's sinus disorder is shown by clear and unmistakable evidence to have pre-existed a period of service, is there also evidence in the record that renders it undebatable, from a medical standpoint, that the sinus disorder was not aggravated by service? (i.e., that it did not increase in severity beyond the natural progression therein). (d.) If there is no clear and unmistakable evidence that the sinus disorder pre-existed service, determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sinus disorder is etiologically related to his service, to include as due to his established TERA (to include the Veteran's service in Southwest Asia or conceded exposure to Otto fuel or asbestos). The examiner must consider: (i) the total potential exposure through all applicable deployments; and (ii) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (e.) If a sinus disorder is determined to not be related to the Veteran's service identify the etiology considered more likely and explain why that is so. 6. Schedule the Veteran for a VA TERA examination to address the nature and etiology of his respiratory disorder. The examiner must review the complete claims file. A complete rationale for the examiner's opinions below must be provided, citing to specific evidence of record, as necessary. The examiner is advised that the Veteran's exposure to environmental toxins in service has been established. (a.) Identify (by diagnosis) each respiratory disorder. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner shall consider them a "disability" for the purpose of providing the requested opinion(s) below. (Continued on the next page) ? (b.) Determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed respiratory disorder is etiologically related to the Veteran's service, to include as due to his established TERA (to include as due to the Veteran's service in Southwest Asia or an undiagnosed illness, or the Veteran's conceded exposure to Otto fuel or asbestos). (c.) If a respiratory disorder is determined to not be related to the Veteran's service identify the etiology considered more likely and explain why that is so. PAULA B. McCARRON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Staskowski, Nichole 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.