Citation Nr: 22043220 Decision Date: 07/29/22 Archive Date: 07/29/22 DOCKET NO. 19-15 744 DATE: July 29, 2022 ORDER Service connection for sinusitis is granted. Service connection for allergic rhinitis is granted Service connection for obstructive sleep apnea (OSA) is granted. Service connection for migraine headaches is granted. REMANDED Service connection for a medically unexplained chronic multi-symptom illness (MUCMI), to include fibromyalgia, is remanded. Service connection for a right ankle disability is remanded. Service connection for a left ankle disability is remanded. Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. Service connection for a right wrist disability is remanded. Service connection for a left wrist disability is remanded. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran has diagnoses of sinusitis and allergic rhinitis. 3. Resolving reasonable doubt in the Veteran's favor, his OSA is at least as likely as not related to sleep apnea symptoms noted during active service. 4. The Veteran has experienced migraine headaches with aura since his separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis are met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317, 3.320. 2. The criteria for service connection for allergic rhinitis are met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317, 3.320. 3. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1989 to August 1992 including service in Southwest Asia (SWA), and from January 2003 to June 2004. He had additional periods of service in the Army National Guard (ARNG). This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Agency of Original Jurisdiction (AOJ) dated in April 2014. The Veteran testified before the undersigned Veterans Law Judge at an August 2021 hearing; a transcript of the hearing is of record. The Veteran asserts that he has Gulf War Syndrome and a MUCMI (including fibromyalgia) due to military environmental exposures, including smoke from burn pits in Southwest Asia, and that his symptoms and conditions include migraine headaches with visual symptoms (aura), chemical sensitivity, allergies, vertigo, body aches, facial pressure, sleep apnea, fatigue, anxiety, impaired concentration, and sexual dysfunction. See his May 2013 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), February 2014 statement in support of claim, and August 2021 Board hearing transcript. A claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). VA will adjudicate as part of a claim entitlement to any benefits that arise as a result of the adjudication decision, including entitlement to benefits for conditions underlying the claimed condition or which contribute substantially or materially to the development of the claimed condition. See Grimes v. McDonough, 34 Vet. App. 84 (2021) (explaining that the Board must sympathetically and retrospectively construe the scope of a claim, and holding that a claim for service connection may encompass a related condition). The Board finds that the Veteran's initial claim for Gulf War Syndrome can be broadened to encompass sinusitis, rhinitis, OSA, and migraine headaches, in light of medical records showing current diagnoses of these conditions, and his consistent contentions of symptoms of allergies, nasal congestion, sleep apnea, sinusitis, and migraine headaches. See Clemons, supra; Grimes, supra; Murphy v. Wilkie, 983 F.3d 1313, 1320 (Fed. Cir. 2020) (explaining that, to comply with the Clemons lenient-claim-scope rule, "VA must look to all possible diseases or injuries for which the veteran could have reasonably expected to have included in the filing"). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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; 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117 (a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317 (a)(2)(i). The term MUCMI refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317 (a)(2)(ii). A multi-symptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multi-symptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is "medically unexplained," that is, the etiology and pathophysiology of the multi-symptom illness, must be particular to the claimant's case. Id. at 291. Here, the Veteran had active service in Saudi Arabia from August 1990 to April 1991. Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). 1. Service connection for sinusitis, including as due to military environmental exposure 2. Service connection for rhinitis, including as due to military environmental exposure 3. Service connection for OSA, including as due to military environmental exposure 4. Service connection for migraine headaches, including as due to military environmental exposure The Veteran asserts that he has Gulf War Syndrome and a MUCMI (including fibromyalgia) due to military environmental exposures, including smoke from burn pits in Southwest Asia, and that his symptoms and conditions include migraine headaches with visual symptoms (aura), chemical sensitivity, allergies, vertigo, facial pressure, sleep apnea, and fatigue, among others. See his May 2013 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), February 2014 statement in support of claim, and August 2021 Board hearing transcript. As noted above, the Board has broadened the scope of the Veteran's service connection claim to include sinusitis, rhinitis, OSA, and migraine headaches. Organic diseases of the nervous system such as migraines are enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Private medical records reflect that the Veteran has current diagnoses of chronic sinusitis, allergic rhinitis, OSA, and migraine headaches. See May 2015 private sleep study, June 2015 sleep apnea Disability Benefits Questionnaire (DBQ) completed by Dr. M.A., October 2021 sinusitis/rhinitis DBQ completed by Dr. A.S., October 2021 headache DBQ completed by Dr. R.A., and November 2021 letter from Dr. M.A. During service, the Veteran was seen for complaints of sinus congestion, post-nasal drip, headaches, and sleep apnea. Thus, the question becomes whether the current disabilities are related to service. A Veteran who has a qualifying period of service in Southwest Asia theater of operations during the Persian Gulf War, as in this case, is presumed to have been exposed to fine, particulate matter during such service, unless there is affirmative evidence to establish that he was not exposed to such matter during that service. 38 C.F.R. § 3.320(a)(3), (4) (August 5, 2021). Except as provided in paragraph (b) of this section, a disease listed in paragraph (a)(2) of this section 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 a qualifying period of service as defined in paragraph (a)(4) of this section. 38 C.F.R. § 3.320(a)(1). The chronic diseases referred to in paragraph (a)(1) of this section are asthma, rhinitis, and sinusitis, to include rhinosinusitis. 38 C.F.R. § 3.320(a)(2). Service personnel records reflect that the Veteran served on active duty from August 1989 to August 1992, including service in SWA from August 1990 to April 1991, and from January 2003 to June 2004, including service in Afghanistan from July 2003 to April 2004. The Veteran's service treatment records include a February 2004 memorandum for the record from a flight surgeon, who stated that the soldiers of JTF Falcon (Bagram, Afghanistan) were significantly exposed to fumes and smoke from the garbage and trash burning pile. He stated that the plastics burned in this pile have been known to produce toxic fumes as they are combusted, and that the Veteran was potentially exposed to the asbestos pile on a daily basis. Service treatment records from the Veteran's first period of active duty reflect that in a July 1991 SWA demobilization/redeployment medical evaluation, he reported that he had strep throat in SWA. In February 1992, he complained of chest cold, headaches, and sinus symptoms; the diagnostic assessment was an upper respiratory infection. On enlistment medical examination for the ARNG in June 2002, the Veteran's head, nose, sinus, and throat were clinically normal. In a concurrent report of medical history, the Veteran denied a history of asthma, breathing problems, shortness of breath, chronic cough, sinusitis, hay fever, chronic or frequent colds, ear, nose, or throat trouble, and frequent or severe headache. In June 2003, during his second period of active duty, the Veteran complained of sinus congestion, sore throat, a drip into the back of his throat, and a cough at night. He reported a history of allergy problems. The diagnostic assessment was sinus congestion. A March 2004 service treatment note reflects that the Veteran complained of headache, dizziness, visual disturbance, and sinus pressure. He reported that he had been working outside that day; the diagnostic assessment was possible dehydration. In a May 2004 sworn statement, the Veteran reported that he had concerns about sleeping problems and sensitivities to different chemical products such as perfume and detergents that he developed or were aggravated while serving in Afghanistan. He reported a sleeping problem in which he occasionally woke up because he had stopped breathing, and said the problem was worse if he slept on his back. He stated that if he came into contact with certain chemicals he developed a lot of sinus pressure, his eyes watered and turned red, and he had ear congestion and dizziness. In a May 2004 report of medical assessment, the Veteran reported that his health was worse, and he had sleeping issues and chemical sensitivity. He reported treatment for a sinus condition, allergies, headache, and dehydration. The reviewing examiner noted that the Veteran reported problems with sensitivity to certain strong odors which caused sinus congestion and headaches. The examiner noted that the Veteran had subjective sleep apnea, and that he reported that he stopped breathing as he fell asleep, and awakened to catch his breath. In an October 2004 post-deployment health assessment, the Veteran reported that his health got worse during his deployment to Afghanistan. He reported that during the deployment he had the following symptoms: headaches, allergies, red eyes with tearing, dizziness, fainting, lightheadedness, and difficulty breathing. He was concerned about environmental exposures, sleeping issues, and chemical sensitivity issues. In a February 2014 statement, the Veteran reported that he started having migraines approximately one to two years after separation from his first period of active duty (i.e., in 1993 or 1994), and he became extremely sensitive to lights and perfumes. He said the migraines started with blurred vision, and then an extreme headache, and that the migraines had continued ever since. He stated that he had sleep apnea symptoms since service. At the Board hearing, the Veteran testified that he had symptoms of sleep apnea and migraines ever since service. A June 2015 private sleep apnea DBQ reflects that the Veteran reported that he had loud snoring, daytime sleepiness, witnessed apnea, and fatigue which had been gradually worsening for 20 years. Dr. M.A. diagnosed OSA, based on a May 2015 sleep study. An October 2021 private sinusitis/rhinitis DBQ reflects that the Veteran reported that he had nasal obstruction, post-nasal drip, recurrent nasal infection, and intermittent headache since 1993. Dr. A.S. diagnosed sinusitis and rhinitis, and indicated that he had pansinusitis. He noted that the Veteran's sinusitis was manifested by symptoms including headaches. An October 2021 private headache DBQ reflects that the Veteran reported that he had severe retro-orbital headaches, with throbbing associated with visual aura and photophobia. Dr. R.A. diagnosed migraine headaches, and indicated that the date of the diagnosis was January 1993. In a November 2021 private medical opinion, Dr. M.A. stated that he treated the Veteran since May 2015, and had reviewed the Veteran's pertinent records. He diagnosed mild OSA and opined that the Veteran's OSA was aggravated by his sinusitis, allergic and non-allergic rhinitis, which started after his exposure to oil fires and smog during the Gulf War. The rationale was that the Veteran's nose symptoms started during the Gulf War after exposure to smoke and particles from oil well fires, and the Veteran also reported that his nasal symptoms were triggered by multiple chemicals like paint, cigarette smoke, petrol, chemical solvents, and perfumes which caused him severe sinus pain, headaches, and migraines. Dr. M.A. stated that the Veteran had no other known risk factors that may have caused his OSA. Dr. M.A. cited medical literature regarding rhinitis and OSA, and stated that the medical literature showed a close association between allergic and non-allergic rhinitis and OSA, that non-allergic rhinitis was known to be aggravated by variable environmental and occupational irritants, that dust, smog, second-hand smoke, and perfume were known triggers, and that exposure to irritants such as oil fires and fumes could increase the risk of developing non-allergic rhinitis. The Board finds that the evidence is in approximate balance that the Veteran has current diagnoses of sinusitis and allergic rhinitis that manifested within 10 years of his separation from service. As the record does not include affirmative evidence that his diagnosed sinusitis and allergic rhinitis were not incurred during a qualifying period of service, that they were caused by a supervening condition or event that occurred between his most recent departure from a qualifying period of service and the onset of the disease, or that it was the result of his own willful misconduct, presumptive service connection for the Veteran's sinusitis and allergic rhinitis is granted. 38 C.F.R. § 3.320. With regard to the claim of service connection for OSA, the Board concludes that the Veteran has a current disability of OSA that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The evidence reflects that during the Veteran's second period of active duty, an examiner indicated that the Veteran had subjective sleep apnea, and that he reported that he stopped breathing as he fell asleep, and awakened to catch his breath. The Veteran has credibly testified that he had symptoms of sleep apnea since service, and a sleep study showed OSA in May 2015. Dr. M.A. has opined that his OSA is aggravated by now service-connected sinusitis and rhinitis. As the evidence is in approximate balance, the benefit-of-the-doubt rule is applicable, and the claim for service connection for OSA is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). With regard to the claim of service connection for migraine headaches, while no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms of migraines with aura since active service. The Veteran is competent to report that he experienced symptoms of migraine headaches with aura during that period. His statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran's migraine headaches. As the evidence is in approximate balance, the benefit-of-the-doubt rule is applicable, and the claim for service connection for migraine headaches is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309(a); Lynch, supra. REASONS FOR REMAND 1. Service connection for a MUCMI to include fibromyalgia is remanded. 2. Service connection for a right ankle disability is remanded. 3. Service connection for a left ankle disability is remanded. 4. Service connection for a right knee disability is remanded. 5. Service connection for a left knee disability is remanded. 6. Service connection for a right wrist disability is remanded. 7. Service connection for a left wrist disability is remanded. The Veteran reports experiencing joint pains in his ankles, knees, and wrists. He contends that he has a MUCMI to include fibromyalgia due to military environmental exposure in SWA, and that his symptoms include chemical sensitivity, vertigo, body aches, joint pains, anxiety, impaired concentration, and sexual dysfunction. Alternatively, he asserts that he has current disabilities of both ankles and both knees that are due to injuries from parachute jumps and walking and running on uneven ground in service, and that his bilateral wrist symptoms are due to repetitive injuries in service while lifting boxes and doing push-ups. Here, the Veteran had active service in Saudi Arabia from August 1990 to April 1991. Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). The Veteran has submitted DBQs and private medical records reflecting diagnoses of current disabilities of the ankles and knees, and functional impairment of the wrists. However, these records do not include adequate medical nexus opinions as to whether the current disabilities are related to service. The pathophysiology and etiology of the claimed conditions is unclear. Accordingly, on remand, a medical opinion must be obtained to discuss these matters. In November 2021, the Veteran submitted an undated handwritten note from Dr. A.A.M., who stated that he had questionable fibromyalgia, and multiple sensitivities to environmental triggers. In a private wrist DBQ dated in August 2015, Dr. O.D.R. indicated that there was no current wrist diagnosis, but also indicated that there was functional impairment of the wrists. On private knee DBQ dated in February 2016, Dr. O.D.R. noted that the Veteran reported that his bilateral knee pain started 30 months ago. The diagnosis was bilateral patellofemoral pain syndrome. On private ankle DBQ dated in October 2021, Dr. R.A.S. diagnosed bilateral ankle disabilities, including ligament strain and tendonitis. On private knee DBQ dated in October 2021, Dr. R.A.S. diagnosed bilateral knee disabilities, including knee strain, tendonitis, osteoarthritis, patellofemoral pain syndrome. The examiner also diagnosed chondromalacia patella of the right knee, and a meniscal tear of the right knee. However, an October 2021 magnetic resonance imaging (MRI) studies of the knees showed a meniscal tear only in the left knee. In a letter received in October 2021, a private orthopedic surgeon, Dr. L.B., noted that the Veteran reported a history of multiple injuries during parachute jumps in service, and a history of pain and crepitus in both knees and ankles since service. Dr. L.B. diagnosed bilateral knee and ankle disabilities, including chronic knee strain, chronic bilateral synovitis of the knees and ankles, patellofemoral syndrome of both knees, bilateral chondromalacia patella, osteoarthritis of the knees, suspected ligament injury of the ankle, and stable OCD of the right ankle. Remand is also required to obtain outstanding VA medical records. The Veteran has reported that he received VA medical treatment in May 1994 at the Durham VA Medical Center (VAMC). See his May 2013 claim, February 2014 statement in support of claim, and August 2021 Board hearing transcript. The AOJ has not attempted to obtain these records. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Obtain the Veteran's VA treatment records for the period from May 1994 to June 1994. In a February 2014 statement and at the August 2021 Board hearing, the Veteran identified relevant outstanding private treatment records, specifically treatment records from an allergy clinic in Georgia. Moreover, records on file reflect recent private treatment for the claimed conditions, but the treatment records are not on file. By a letter dated in November 2021, Dr. M.A. reported that he had treated the Veteran since May 2015, and a note from Dr. A.A.M. reflects that he has also treated the Veteran. A remand is required to allow VA to obtain authorization and request these private medical records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the Durham VAMC for the period from May 1994 to June 1994. 2. Ask the Veteran to complete a VA Form 21-4142 for the allergy clinic in Georgia identified in his February 2014 statement and at the August 2021 Board hearing, and for any medical providers who treated him for the claimed disabilities, including Dr. M.A. and Dr. A.A.M. Make two requests for the authorized records from these medical providers, unless it is clear after the first request that a second request would be futile. 3. After the actions in paragraphs 1 and 2 have been completed, obtain a medical opinion from an appropriate clinician regarding the nature and etiology of his claimed MUCMI (including fibromyalgia) and disabilities of the bilateral ankles, bilateral knees, and bilateral wrists. The examiner must review the entire claims file, including a copy of this remand and the DBQs and private medical records submitted by the Veteran. An examination need only be scheduled if deemed necessary by the examiner. (It is noted that the Veteran currently resides abroad, and a physical examination may not be possible.) The examiner is asked to provide responses to the following: A) Is the etiology of the Veteran's claimed fibromyalgia, chemical sensitivity, vertigo, body aches, joint pains, anxiety, impaired concentration, sexual dysfunction, and disabilities of the bilateral ankles, bilateral knees, and bilateral wrists (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. B) Is the pathophysiology of the Veteran's claimed fibromyalgia, chemical sensitivity, vertigo, body aches, joint pains, anxiety, impaired concentration, sexual dysfunction, and disabilities of the bilateral ankles, bilateral knees, and bilateral wrists (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. C) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed fibromyalgia, chemical sensitivity, vertigo, body aches, joint pains, anxiety, impaired concentration, sexual dysfunction, and disabilities of the bilateral ankles, bilateral knees, and bilateral wrists were incurred in, or are otherwise related to, a period of active service, to include as a result of cumulative impact injuries from parachute jumps and walking and running on uneven ground in service or repetitive injuries in service while lifting boxes and doing push-ups? A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.