RHINITIS

Summary

The Veteran, an Army National Guard member who served on active duty intermittently between January 1992 and February 2009, including service in Kuwait during the Persian Gulf War, appeals the denial of service connection for a respiratory disability. The Board bifurcated the claim into allergic rhinitis and sleep apnea. For allergic rhinitis, the Board found presumptive service connection under a recent VA regulation (38 C.F.R. § 3.320) due to the Veteran's Kuwait service and a current diagnosis of allergic rhinitis that manifested within 10 years of deployment. The Board noted the evidence was in relative equipoise regarding the manifestation timeline, resolving this doubt in the Veteran's favor to grant service connection. The claim for sleep apnea was remanded for a new VA examination to determine if it is at least as likely as not related to service, as prior examinations had not provided an opinion on the etiology of this condition. The Veteran was awarded service connection for allergic rhinitis.

Rationale

Presumptive service connection under 38 C.F.R. § 3.320; Service in Kuwait (Southwest Asia theater); Current diagnosis of allergic rhinitis; Manifested within 10 years of deployment; Evidence in relative equipoise, resolved in Veteran's favor

Full Decision Text

Citation Nr: 22019264
Decision Date: 03/31/22	Archive Date: 03/31/22

DOCKET NO. 13-06 075
DATE: March 31, 2022

ORDER

Entitlement to service connection for allergic rhinitis is granted.

REMANDED

Entitlement to service connection for obstructive sleep apnea is remanded.

FINDING OF FACT

The Veteran's diagnosed allergic rhinitis is presumed to be due to service based on service in the Southwest Asia theater.

CONCLUSION OF LAW

The criteria for service connection for rhinitis are met.  38 U.S.C. § 3.303; 38 C.F.R. § 3.320.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from January 1992 to June 1994, from November 2004 to January 2006, from November 2006 to March 2007, and from July 2007 to February 2009.  He had subsequent service with the Army National Guard.  For his meritorious service, the Veteran was awarded (among other decorations) the Iraq Campaign Medal with two Bronze Service Stars and the Combat Action Badge. 

These matters were remanded in September 2018 for further development, to include obtaining completed service treatment records and VA examinations.  

The Board notes that the Veteran's appeal had originally included the issue of service connection for a slow heartbeat.  However, following the Board's September 2018 remand, the Agency of Original Jurisdiction (AOJ) granted service connection for bradycardia.  The grant of service connection constitutes a full award of the benefits sought on appeal.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  Thus, this claim is no longer in appellate status.  Id. at 1158.

In light of the evidence of record and theories of entitlement, addressed in detail below, the Board finds that it is appropriate to bifurcate and recharacterize the Veteran's claim for respiratory disability (also claimed as difficulty breathing) into two separate claims: (1) service connection for allergic rhinitis, and (2) service connection for sleep apnea.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces).

Entitlement to service connection for allergic rhinitis.

The Veteran claims service connection for a disability productive of difficulty breathing.  In August 2021, VA regulations were amended to provide presumptive service connection to Gulf War veterans who were potentially exposed to fine particulate matter associated with a deployment to the Southwest Asia theater of operations.  See 86 Fed. Reg. 42,724 (Aug. 5, 2021) (38 C.F.R. § 3.320 ).  The list of diseases afforded this presumption includes asthma, rhinitis, and sinusitis, to include rhinosinusitis, provided such disease manifest to any degree (including non-compensable) within ten years from the date of separation from military service that includes a qualifying period of service.  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 id.   

Here, the Veteran served in Kuwait, which is part of the Southwest Asia theater of operations, as defined in 38 C.F.R. § 3.317(e)(2), during the Persian Gulf War as defined in 38 C.F.R. § 3.2(i).  See DD-214.  Additionally, the Veteran has a current diagnosis of allergic rhinitis that manifested within 10 years of his deployment to Kuwait, for which he was prescribed a nasal spray.  See March 2011 and February 2017 VA treatment records.

The record is at least in relative equipoise as to whether the diagnosed allergic rhinitis manifested within 10 years of this service.  On this basis, service
 id.   

Here, the Veteran served in Kuwait, which is part of the Southwest Asia theater of operations, as defined in 38 C.F.R. § 3.317(e)(2), during the Persian Gulf War as defined in 38 C.F.R. § 3.2(i).  See DD-214.  Additionally, the Veteran has a current diagnosis of allergic rhinitis that manifested within 10 years of his deployment to Kuwait, for which he was prescribed a nasal spray.  See March 2011 and February 2017 VA treatment records.

The record is at least in relative equipoise as to whether the diagnosed allergic rhinitis manifested within 10 years of this service.  On this basis, service connection is warranted. 

REASONS FOR REMAND

Entitlement to service connection for sleep apnea is remanded.

In a July 2011 Statement in Support of Claim the Veteran asserted that his condition claimed as breathing difficulty should be considered a claim for sleep apnea.  A December 2013 VA examination notes the Veteran was diagnosed with sleep apnea in October 2011.  

No VA examination has provided an opinion regarding the etiology of this condition even though several examiners have noted the sleep apnea diagnosis.  Accordingly, the claim should be remanded.

The matters are REMANDED for the following action:

1. Arrange to have the Veteran scheduled for a VA sleep apnea examination.  The examiner should review the record.  All indicated tests should be conducted and the results reported.

After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's sleep apnea had its onset in, or is otherwise attributable to, the Veteran's period of active service.

A complete medical rationale for all opinions expressed must be provided.

2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence.  If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

 

 

Richard Kettler

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.L. Blevins, 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.