Citation Nr: 0727799 Decision Date: 09/05/07 Archive Date: 09/14/07 DOCKET NO. 06-06 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for allergic rhinosinusitis with epistaxis (claimed as nosebleeds), to include whether new and material evidence has been presented to reopen the claim. 2. Entitlement to service connection for headaches as secondary to allergic rhinosinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from May 1943 to April 1946. This case comes before the Board of Veterans? Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in rhinosinusitis with epistaxis (claimed as nosebleeds), to include whether new and material evidence has been presented to reopen the claim. 2. Entitlement to service connection for headaches as secondary to allergic rhinosinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from May 1943 to April 1946. This case comes before the Board of Veterans? Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In that decision, the RO denied claims of service connection for nosebleeds (claimed as a nose condition) and migraine headaches on the merits. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Rowell v. Principi, 4 Vet. App. 9, 15 (1993); Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The Board must also focus on the context of the claim reviewing the claimant's allegations and the supporting documents in a liberal manner to identify and adjudicate the benefit being sought. See Norris v. West, 12 Vet. App. 413, 417 (1999). As addressed below, the veteran's allegations when viewed in the context of the medical evidence shows that he seeks to establish service connection for allergic rhinosinusitis manifested by epistaxis with secondary headaches. A claim of service connection for allergic rhinitis has previously been denied by a final RO rating decision in January 1948. The Board, therefore, has rephrased the issues listed on the title page to better reflect the claims being raised by the veteran. FINDINGS OF FACT 1. An unappealed RO rating decision in January 1948 that denied a claim of service connection for allergic rhinitis is final. 2. Evidence of record since the RO's final rating decision in January 1948 includes lay report of nose cauterization in service with recurrent symptoms of sinus problems, epistaxis and headaches since service, and competent medical opinion relating the onset of allergic rhinosinusitis to service. 3. The veteran's allergic rhinosinusitis with epistaxis first manifested in service. 4. The veteran's pressure descent headaches are proximately due to his allergic rhinosinusitis. CONCLUSIONS OF LAW 1. A January 1948 RO rating decision that denied a claim of service connection for allergic rhinitis is final. 38 U.S.C. § 709 (1946). 2. Evidence received since the RO's January 1948 rating decision is new and material; the claim for service connection for allergic rhinosinusitis with epistaxis is reopened. 38 U.S.C.A. §§ 1110, 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). 3. Allergic rhinosinusitis was incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2006). 4. Headaches are proximately due to service-connected allergic rhinosinusitis. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for recurrent nosebleeds and headaches. He has also referred to having sinus problems. His entrance examination in May 1943 showed a normal clinical evaluation of his nose. His service medical records do not appear complete, but do show his treatment for acute catarrhal fever in December 1944 and February 1946. The origin was noted as not existing prior to service (DNEPTE). His separation examination in April 1946 noted a history of right epistaxis treated in January 1946. The actual treatment record for epistaxis is not available. In May 1946, the veteran filed a claim of service connection for "nose trouble." A May 1946 RO rating decision denied claims of service connection for nose trouble and catarrhal fever. The veteran responded by reporting having had nose treatment at the N.O.B. hospital in Norfolk, Virginia, in March 1946. Thereafter, the RO continued development of the claim by attempting to obtain additional service medical records and scheduling the veteran for VA examination. An October 1947 VA ear, nose and throat examination included the veteran's report of headaches and nose bleeds since service. His physical examination indicated diagnoses of allergic rhinitis and sinusitis. An RO rating decision in January 1948 denied a claim of service connection for allergic rhinitis as a congenital or developmental abnormality not subject to service connection. The veteran was provided notice of this decision in January 1948, but he did not file an application for review on appeal within one year of the decision. That claim, therefore, is final. 38 U.S.C. § 709 (1946). Evidence of record since the RO's January 1948 rating decision includes the veteran's report that his nose was cauterized in service. His statements and testimony of record indicate a history of recurrent episodes of nosebleeds, headaches and sinus problems since service. His VA clinical records reflect his treatment for allergic rhinitis and headaches. Epistaxis is reported on the active problem list. An October 2006 computed tomography (CT) scan of the paranasal sinuses resulted in an impression of nonspecific mucosal thickening of the maxillary, ethmoid and frontal sinuses. An opinion from the VA otolaryngology section chief stated as follows: "Veteran's present state is that of seasonal allergic rhinitis with CT scan supporting a diagnosis of chronic allergic rhinosinusitis. I can only speculate that nose bleeds treated in the service were related to his present pathology." An additional statement indicated that "[p]ressure descent headaches can be related to allergic rhinosinusitis." The veteran filed his claims on appeal in March 2005. As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). However, if the claimant can thereafter present new and material evidence, then the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a) (2006); see also 66 Fed. Reg. 45620 (August 29, 2001). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. Evidence is presumed credible for the purposes of reopening unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence relied upon in reopening the claim must be both new and material. Smith v. West, 12 Vet. App. 312 (1999). Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty during periods of active wartime military service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2006). Disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a) (2006). The Board finds that the evidence submitted of record since the RO's January 1948 rating decision is both new and material. The evidence includes the veteran's report of in-service nose cauterization that was not previously considered, and his current reports of continuity of symptomatology of nosebleeds, sinus problems and headaches. A VA clinician has attributed the veteran's nosebleeds as being consistent with chronic allergic rhinosinusitis. The previous evidence showed two instances of in-service treatment for catarrhal fever and diagnosis of allergic rhinitis on the initial VA examination in October 1947. Current VA regulations deem allergic rhinitis as a ratable service connected disability. See 38 C.F.R. § 4.97, Diagnostic Code 6522 (2006). The newly submitted evidence raises a reasonable possibility of substantiating the claim when viewed in the context of the entire record. 38 C.F.R. § 3.156(a) (2006). The claim, therefore, is reopened for review on the merits. The Board also finds that the newly submitted evidence is sufficient to grant the claims. The veteran's history of recurrent sinus problems, epistaxis and headaches since service are credible and corroborated, in part, by his service medical records and his recorded statements at the time of the initial VA examination in 1947. The VA clinician opinion, when viewed in the context of record, places the record in equipoise as to whether the veteran's allergic rhinosinusitis with epistaxis first manifested in service. Furthermore, the clinician opinion has also determined that the veteran's pressure descent headaches are proximately due to his allergic rhinosinusitis. With application of the benefit of the doubt rule, the Board finds that the veteran's allergic rhinosinusitis with epistaxis first manifested in service, and that his headaches are proximately due to his allergic rhinosinusitis. 38 U.S.C.A. § 5107(b) (West 2002). According, service connection for allergic rhinosinusitis with epistaxis is granted on a direct basis, and service connection for headaches is granted on a secondary basis. The duty to notify and assist has been satisfied to the extent necessary to allow the claims, and no further action is required. See 38 U.S.C.A. § 5103, 5103A; 38 C.F.R. § 3.159. ORDER The claim of service connection for allergic rhinitis with epistaxis is reopened and granted. The claim of entitlement to service connection for headaches as secondary to allergic rhinitis with epistaxis is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs