CHRONIC RHINITIS WITH SINUSITIS

Summary

The veteran, who served in the U.S. Army from June 1979 to March 1992, appeals the denial of service connection for chronic rhinitis with sinusitis. The Board of Veterans' Appeals reviewed the case based on the evidence of record, including the Veteran's Form DD 214 and VA treatment records. The Veteran's request for a Board hearing was waived and deemed withdrawn. The Board applied the presumptive service connection rule for Gulf War veterans exposed to fine particulate matter, as established by 38 C.F.R. § 3.320, which applies to respiratory conditions manifesting within 10 years of service. The evidence showed the Veteran had qualifying service in Southwest Asia during the Persian Gulf War, evidenced by his DD 214 and receipt of the Kuwait Liberation Medal. He was diagnosed with allergic rhinitis in May 2001 and chronic seasonal rhinitis with maxillary sinusitis in January 2013, both within 10 years of his March 1992 separation from service. The Board found the evidence supported a presumptive service connection under the applicable regulation. Therefore, service connection for chronic rhinitis with sinusitis was granted.

Rationale

Veteran had qualifying Southwest Asia service during Persian Gulf War; Diagnosed with allergic rhinitis within 10 years of separation; Diagnosed with chronic seasonal rhinitis with maxillary sinusitis within 10 years of separation; Presumptive service connection under 38 C.F.R. § 3.320 applies

Full Decision Text

Citation Nr: 22033520
Decision Date: 06/08/22	Archive Date: 06/08/22

DOCKET NO. 17-65 320
DATE: June 8, 2022

ORDER

Service connection for chronic rhinitis with sinusitis is granted.

FINDING OF FACT

The Veteran had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War for 38 C.F.R. § 3.320 purposes; he currently has chronic rhinitis with sinusitis and was diagnosed with allergic rhinitis within 10 years of his service in Southwest Asia.

CONCLUSION OF LAW

The criteria for service connection for chronic rhinitis with sinusitis, as a result of Persian Gulf War exposure have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.317, 3.320.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from June 1979 to March 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2013 by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama.

In his December 2017 substantive appeal, the Veteran requested a Board hearing via videoconference. However, in a November 2021 statement, he waived his request for a hearing. Accordingly, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.702.

Service Connection

Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

Of particular relevance to this claim, the Board notes that effective August 5, 2021, VA promulgated an interim final rule regarding presumptive service connection for Gulf War veterans for three chronic respiratory health conditions in association with exposure to fine particulate matter. 

Under the interim final rule, certain diseases (including asthma, chronic rhinitis with sinusitis, rhinitis, sinusitis, to include rhinosinusitis) shall be service connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service that includes active-duty service during the Gulf War in the Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan. 38 C.F.R. § 3.320(a). Under the provision exposure is presumed unless there is affirmative evidence to establish that the veteran was not exposed to fine particulate matter during service. See 38 C.F.R. § 3.320(a). 

The interim final rule applies to all claims received by the VA on or after August 5, 2021, and that were pending before the VA, the United States Court of Appeals for Veterans' Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021. See 86 Fed. Reg. 42724, 42724 (August 5, 2021). As noted above, this claim has been pending since a March 2013 rating decision which denied service connection. Thus, the interim final rule applies here.

The Board has carefully reviewed the evidence of record and finds that the evidence supports the award of service connection for chronic rhinitis with sinusitis on a presumptive basis. The reasons follow.

The Veteran has been diagnosed with allergic rhinitis, and thus there is evidence of a current disability. For example, in a May 2001
 Court of Appeals for Veterans' Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021. See 86 Fed. Reg. 42724, 42724 (August 5, 2021). As noted above, this claim has been pending since a March 2013 rating decision which denied service connection. Thus, the interim final rule applies here.

The Board has carefully reviewed the evidence of record and finds that the evidence supports the award of service connection for chronic rhinitis with sinusitis on a presumptive basis. The reasons follow.

The Veteran has been diagnosed with allergic rhinitis, and thus there is evidence of a current disability. For example, in a May 2001 VA treatment record, the Veteran was diagnosed with allergic rhinitis. In a November 2001 VA treatment record, the Veteran's "Active Problems" list was shown to include allergic rhinitis. In the January 2013 VA examination, the Veteran was diagnosed with chronic seasonal rhinitis with maxillary sinusitis. Accordingly, the record supports that the Veteran has a qualifying chronic disease that was diagnosed within 10 years of separation from service. As discussed above, the Veteran separated from service in March 1992.

The Veteran is shown to have served in Southwest Asia during the Persian Gulf era. For example, in the Veteran's Form DD 214, Certificate of Release or Discharge From Active Duty, it is documented that the Veteran served in Southwest Asia in 1990 and is in receipt of the Kuwait Liberation Medal. As such the Veteran has a qualifying period of service as defined in 38 C.F.R. § 3.317(e)(2) and is presumed to have been exposed to particulate matter during service. 38 C.F.R. § 3.320(a)(4).

In summary, the Veteran had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War for 38 C.F.R. § 3.320 purposes; he currently has chronic seasonal rhinitis with maxillary sinusitis, and was diagnosed with allergic rhinitis within ten years of his service in Southwest Asia. Therefore, service connection for chronic rhinitis with sinusitis on a presumptive basis under 38 C.F.R. § 3.320 is warranted. The claim is granted.

 

JEREMY J. OLSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Husain, 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.