Citation Nr: 0814188 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-33 392 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for sleep apnea, claimed as secondary to septal deviation repair. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for septal deviation, and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for sinusitis with bronchitis, secondary to septal deviation repair, and, if so, whether service connection is warranted. 4. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for allergic rhinitis secondary to septal deviation repair, and, if so, whether service connection is warranted. 5. Entitlement to a rating in excess of 30 percent for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from February 1975 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the RO in Wichita, Kansas, which: denied service connection for sleep apnea, to include as secondary to septal deviation repair, denied petitions to reopen claims of service connection for septal deviation, and sinusitis with bronchitis, and allergic rhinitis, to include as secondary to septal deviation repair, and continued a 30 percent disability rating for migraine headaches. The claims of service connection for septal deviation, sinusitis with bronchitis, allergic rhinitis, and sleep apnea, and the claim for an increased rating for migraine headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed RO rating decision dated in August 1994, of which the veteran was notified in the same month, denied the veteran's petition to reopen the claims of service connection for septal deviation and respiratory problems (identified as sinusitis, bronchitis, and allergic rhinitis). 2. Additional evidence received since the August 1994 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the veteran's claims for service connection for septal deviation and respiratory problems (now recharacterized as sinusitis with bronchitis and allergic rhinitis). CONCLUSIONS OF LAW 1. The August 1994 rating decision denying the claims of service connection for septal deviation and respiratory problems (sinusitis, bronchitis, and allergic rhinitis) is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. New and material evidence has been submitted for the claims of entitlement to service connection for septal deviation and respiratory problems (sinusitis with bronchitis and allergic rhinitis); the claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) As to the claims of septal deviation, sinusitis with bronchitis, and allergic rhinitis, the petitions to reopen have been granted, as discussed below. As such, the Board finds that any error related to the VCAA on those claims is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). II. New and Material Evidence In 1994, the veteran filed claims for service connection for septal deviation, and respiratory problems (sinusitis with bronchitis, and allergic rhinitis). These claims were denied in an August 1994 rating decision, of which the veteran was notified in the same month. The veteran did not file a Notice of Disagreement. The August 1994 decision is final. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "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. The 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The RO denied the veteran's claims in 1994, given the lack of current disability on examination. The RO also noted that the treatment in service for a deviated septum was for a preexisting condition. To reopen the claims, therefore, the veteran must submit new evidence pertaining to either of these grounds. The veteran has submitted a variety of recent treatment records, which shows that he does indeed have current respiratory disability. Specifically, the veteran's private treatment records from Dr. Grussendorf show a March 2004 diagnosis of seasonal allergic rhinitis. An October 2003 MRI showed mucosal thickening of the anterior and middle ethmoid, maxillary and frontal air cells consistent with low-grade pansinusitis. Further, the veteran has also submitted the May 2003 statement of Dr. Schultz, which establishes that the veteran has other residual problems as a result of his septal deviation. The evidence submitted since the 1994 rating decision is new and pertains to the grounds for the previous final denial in that it shows current disability; as such this evidence raises a reasonable possibility of substantiating the claims. The Board finds that new and material evidence has been submitted. Reopening is warranted. See 38 C.F.R. § 3.156. ORDER The appeal to reopen a claim of service connection for septal deviation is granted. The appeal to reopen a claim of service connection for sinusitis with bronchitis, claimed as secondary to septal deviation repair, is granted. The appeal to reopen a claim of service connection for allergic rhinitis, claimed as secondary to septal deviation repair, is granted. REMAND The Board finds that further evidentiary development is necessary with respect to the veteran's claims of service connection for septal deviation and residuals of such, to include sinusitis with bronchitis, allergic rhinitis, and sleep apnea. Thus far, the veteran has not been afforded a VA compensation examination. On remand, the veteran should undergo a VA examination to determine whether his septal deviation preexisted service or is of service origin. Even if it is established that the septal deviation preexisted active duty, service connection may be established if there is competent medical evidence that his inservice treatment (septal deviation surgical repair) aggravated his condition. Further, if the evidence supports service connection for septal deviation, it may be possible to establish secondary service connection for residual disability (e.g., sinusitis with bronchitis, allergic rhinitis and sleep apnea) based on causation or aggravation. Additionally, the Board observes that the veteran submitted a statement in July 2005 to the effect that he has been receiving treatment from VA on an ongoing basis for his migraine headaches. The RO did not request the veteran's VA treatment records. These records are in VA's possession and should be associated with the file to correctly assess the veteran's current disability. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, those records must be obtained for the file. Accordingly, the case is REMANDED for the following action: 1. Obtain the veteran's VA medical records for treatment concerning septal deviation, respiratory problems, sleep apnea, and migraine headaches. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. Schedule the veteran for VA examination by an ENT physician to answer the following inquiries. a). Did the veteran's deviated septum pre-exist service? b). If the deviated septum pre-existed service, was the corrective surgery in service ameliorative or was the septal deviation made permanently worse by an injury, disease, or event of service origin? e). If the septal deviation did not pre- exist service, is it at least as likely as not that any current disability, if any, is related to septal deviation documented during service? Please identify all residuals. In addition, an opinion should be provided as to whether it is at least as likely as not that any current sleep apnea, sinusitis with bronchitis, and or allergic rhinitis is related to a disease or injury in service or was caused or aggravated by septal deviation. In formulating an opinion, the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. If the requested opinion cannot be provided without resort to speculation, the examiner should so state. The claims folder must be reviewed by the examiner. 3. The RO should readjudicate the claims on the merits, ensuring that all notice and development required by 38 C.F.R. § 3.159 have been completed. If the benefits sought are not granted, the veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs