Citation Nr: A25041295 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 211108-196427 DATE: May 6, 2025 ORDER Entitlement to presumptive service connection for rhinitis is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). Entitlement to presumptive service connection for sinusitis is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to ulcerative colitis is remanded. Entitlement to service connection for rhinitis on a direct basis is remanded. Entitlement to service connection for sinusitis on a direct basis is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of rhinitis and served on active duty in Kuwait after August 2, 1990. 2. The Veteran has a current diagnosis of sinusitis and served on active duty in Kuwait after August 2, 1990. CONCLUSIONS OF LAW 1. The criteria for service connection for rhinitis are met. 38 U.S.C. §§ 1110, 1119, 1120, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act, Pub. L. No. 117-168 § 3373, 136 Stat. 1759 (2022). 2. The criteria for service connection for sinusitis are met. 38 U.S.C. §§ 1110, 1119, 1120, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act, Pub. L. No. 117-168 § 3373, 136 Stat. 1759 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to May 1992. The rating decision on appeal was issued in October 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the November 8, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the October 2021 RO decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the RO issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. Specifically, the Board notes that the Veteran submitted private treatment records in March 2022, February 2023, May 2023, July 2023, August 2023, September 2023, August 2024, October 2024, and November 2024. Because VA received these records over 90 days after the receipt of the VA Form 10182, the Board is prohibited by regulation from considering them in this appeal. See 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claims of entitlement to service connection for rhinitis and sinusitis on a direct basis and service connection for diabetes mellitus, type II, any evidence the Board could not consider will be considered by the RO in the adjudication of those claims. 38 C.F.R. § 3.103 (c)(2)(ii). 1. Entitlement to service connection for rhinitis 2. Entitlement to service connection for sinusitis The Veteran asserts that his rhinitis and sinusitis are causally related to his military service. As a preliminary matter, the Department of Veterans Affairs (VA) Regional Office (RO) favorably found that the Veteran participated in operations in Kuwait from January 1991 to June 1991, according to his military personnel records. Under the AMA, the Board is bound by favorable findings made by the RO. 38 C.F.R. § 3.104 (c). Due to the Veteran's service in Kuwait after August 2, 1990, he is presumed exposed to burn pits and other toxins (BPOT) and there is evidence of a current disability presumed due to such exposure under the PACT Act. During the pendency of the appeal, effective August 10, 2022, 38 U.S.C. § 1117 (a) was amended by the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Pub. L. No. 117-168, and now provides that VA may pay compensation to certain Persian Gulf veterans with a qualifying chronic disability that became manifest to any degree at any time. 38 U.S.C. § 1117 (a)(1). BPOT exposure is presumed for veterans who served in specific locations on or after specific dates. 38 U.S.C. § 1119. Here, the Veteran served in Kuwait from January to June 1991. Accordingly, the Veteran is presumed exposed to BPOT under 38 U.S.C. § 1119. Certain enumerated diseases will be presumed related to service for veterans with in-service toxic exposure, to include BPOT. 38 U.S.C. § 1120. Chronic rhinitis and chronic sinusitis are two of those enumerated diseases, and a September 2021 VA examination shows that the Veteran has a current diagnosis of such. Id. Accordingly, service connection is warranted for allergic rhinitis and chronic sinusitis on a presumptive basis given the Veteran's presumed BPOT exposure. See 38 U.S.C. §§ 1119, 1120. This issue is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to ulcerative colitis The Veteran seeks service connection for diabetes mellitus as secondary to his service-connected ulcerative colitis. No argument or evidence has been submitted to support a causal relationship between these conditions. By way of background, the Board awarded service connection for irritable bowel syndrome in a December 2023 decision. In a March 2024 rating decision, the RO awarded a 30 percent rating for this condition effective September 2017. In February 2025, the Veteran's service-connected irritable bowel syndrome was recharacterized by the RO as ulcerative colitis. In the October 2021 rating decision presently on appeal, the RO denied service connection for diabetes mellitus, type II because the evidence of record failed to show that this disability has been clinically diagnosed. A disability must be present at the time a claim for VA disability compensation is filed, or during or contemporary to the pendency of the claim, in order to be service connected. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board has reviewed a May 2019 laboratory report added to the file in September 2021 that showed a high glucose level. However, laboratory values are not themselves a disease upon which VA disability benefits can be based. See Schedule for Rating Disabilities; Endocrine System, 61 Fed. Reg. 20440, 20445 (May 7, 1996) (Supplementary Information). The evidence for consideration contains no diagnosis of diabetes mellitus. However, the Board finds that the RO erred in failing to aid in obtaining relevant private records. 38 U.S.C. § 5103A (b). Where a claimant adequately identifies relevant private treatment records, VA has an obligation to make reasonable efforts to obtain all of the relevant records, to include making no less than two requests to a custodian of private records, unless it is made evidence by the first request that a second request would be futile in obtaining such records. 38 U.S.C. § 5103A (b)(2)(B). Whenever VA, after making such reasonable efforts, is unable to obtain all of the relevant records sought, VA shall notify the claimant that they are unable to obtain records; such notification shall, among other elements, identify the records VA is unable to obtain and briefly explain the efforts made to obtain such records. 38 U.S.C. § 5103A (b)(2)(B). The May 2019 laboratory report clearly identifies the ordering provider. At a minimum, the May 2019 laboratory report identifying the ordering provider implies the further existence of other records associated with that provider. In light of this information, the Board cannot find that the RO has satisfied its duty to make "reasonable efforts" to obtain the Veteran's relevant private treatment records. There is no indication that the RO sent the Veteran a VA Form 21-4142 Authorization for Release of Information or notified him that he can submit these private records himself before the October 2021 rating decision on appeal. Therefore, as the evidence for consideration is insufficient to determine whether the Veteran has the claimed disability, a remand is necessary for further development. The Veteran is encouraged to promptly submit or identify for the RO any relevant private treatment records he feels would support his claim. The VA Form 21-4142 is available online at https://www.vba.va.gov/pubs/forms/VBA-21-4142-ARE.pdf. 2. Entitlement to service connection for rhinitis on a direct basis 3. Entitlement to service connection for sinusitis on a direct basis The Board has granted the Veteran's claim for entitlement to service connection for rhinitis and sinusitis under the provisions of the PACT Act. Such a grant of benefits will be made effective no earlier than August 10, 2022. See Pub. L. 117-168. Therefore, a grant of service connection on another basis, such as on a direct or secondary basis, may result in a greater benefit in the form of an earlier effective date. In the October 2021 rating decision on appeal, the RO denied presumptive service connection for rhinitis and sinusitis because the medical evidence failed to show a diagnosis of these conditions within 10 years from military separation, pursuant to 38 C.F.R. § 3.320 (2021). As mentioned, the PACT Act, effective August 10, 2022, now provides that VA may pay compensation to certain Persian Gulf veterans with a qualifying chronic disability that became manifest to any degree at any time. 38 U.S.C. § 1117 (a)(1). The RO also found no evidence of an event, disease or injury in service and favorably found that the Veteran has been diagnosed with allergic rhinitis and chronic sinusitis, according to a September 2021 VA examination. Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the RO decision on appeal (i.e., pre-decisional duty to assist errors) and (2) RO errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. See 38 C.F.R. § 20.802 (a). In this case, the Board finds that VA has not satisfied its duty to assist the Veteran in obtaining a medical opinion addressing service connection on a direct basis. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. When a nexus between a current disability and an in-service event is "indicated," there must be a medical opinion that provides some nonspeculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus. Id. at 85. Here, although the RO obtained an examination, it did not obtain a medical opinion regarding whether there is a direct causal relationship between the Veteran's service and his current disabilities. The Board finds that the McLendon criteria for a medical examination and nexus opinion are met. Regarding element one, the RO favorably found that the Veteran has been diagnosed with allergic rhinitis and chronic sinusitis and the Board is bound by that finding. See 38 C.F.R. § 3.104 (c). Regarding elements two and three, the Board finds that the Veteran's statement to the September 2021 VA examiner that his conditions began in 1993 after he was directly exposed to burn pits during his deployment to Kuwait to be credible evidence that an injury occurred in service. The Board notes that VA regulations in effect in October 2021, when the rating decision was issued, presumed that certain Persian Gulf War veterans were exposed to fine particulate matter. 38 C.F.R. § 3.320. The Board also finds that this is credible evidence to indicate that the disabilities or persistent or recurrent symptoms of a disability may be associated with the Veteran's service. Finally, the evidence of record is insufficient to determine whether the Veteran is entitled to service connection for these conditions on a non-presumptive basis. Accordingly, the Board finds that it was a pre-decisional duty to assist error to not have afforded the Veteran a nexus opinion on direct service connection, requiring remand under the AMA. See 38 C.F.R. § 20.802 (a). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 Authorization for Release of Information to allow VA to obtain records from Dr. J.J., the provider listed on the May 2019 laboratory report submitted in September 2021 (if these records are not already associated with the Veteran's claims file). Make at least two requests for the authorized records unless it is clear after the first request that a second request would be futile. Send the Veteran a notification letter if attempts are unsuccessful. 2. After these records are obtained and associated with the Veteran's claims file, conduct any necessary development prior to readjudicating the diabetes mellitus, type II claim, including but not limited to obtaining an examination and medical opinion regarding secondary causation and aggravation pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006) and El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 3. Obtain an opinion from an appropriate clinician regarding both the Veteran's claimed rhinitis and sinusitis. The clinician shall be provided the Veteran's complete claim file, including the September 2021 sinusitis/rhinitis VA examination report. The examiner must opine as to the following: (a) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's rhinitis or sinusitis had their onset during service or are otherwise causally or etiologically related to his active-duty service? (b) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's rhinitis or sinusitis are due to the combined synergistic effect of the Veteran's total potential toxic exposure in service? In rendering these opinions, consider and discuss the Veteran's conceded in-service exposures to burn pits and other toxins, to include fine particulate matter. The lay statements of record pertaining to the onset of symptoms must be considered. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. A complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Wolfe, 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.