Citation Nr: 1600893 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 12-19 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for sinusitis. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for obstructive sleep apnea. 4. Entitlement to service connection for residuals of uvulopalatopharyngoplasty (UVPP), turbinate reduction, tonsillectomy and septoplasty. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1979 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. In November 2015, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. The issue of entitlement to service connection for sinusitis is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 2000 rating decision denied service connection for sinusitis; this decision was reviewed and service connection was again denied by the RO in August 2001; the Veteran did not perfect an appeal of the August 2001 rating decision or submit new and material evidence within one year of its issuance. 2. Evidence received more than one year since the August 2001 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for sinusitis. 3. Resolving all reasonable doubt in the Veteran's favor, obstructive sleep apnea was first manifested during active service. 4. The Veteran's UVPP, turbinate reduction, tonsillectomy and septoplasty were performed as result of now service-connected obstructive sleep apnea. CONCLUSIONS OF LAW 1. The RO's August 2001 decision that denied the claim of service connection for sinusitis is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2015). 2. New and material evidence having been received, the claim of entitlement to service connection for sinusitis is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for the establishment of service connection for obstructive sleep apnea are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. The criteria for the establishment of service connection for residuals of UVPP, turbinate reduction, tonsillectomy and septoplasty are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Sinusitis Initially, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen the claim of service connection for sinusitis. The claim was previously denied by RO in October 2000 and August 2001 because there was no record showing a chronic disability subject to service connection. At that time, the evidence of record included service treatment records dated in October 1986 and January 1996 showing treatment in service for sinusitis. A VA examination report dated in May 2000 had referenced documented sinusitis, but no current evidence of sinus infections. The Veteran did not submit a notice of disagreement within one year of the August 2001 decision, and no relevant evidence was received within the appeal period after the decision. As such, the decision became final based on the evidence then of record. 38 U.S.C.A. § 7105(c); cf. 38 C.F.R. § §§ 3.104(a), 3.156(b), 3.160(d), 20.302; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). If new and material evidence is presented or secured with respect to a claim that has been disallowed VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence added to the claims file more than one year after the August 2001 decision is material to the Veteran's claim. Specifically, private medical treatment records from the Fort Walton Beach Medical Center dated in October 2008 show that the Veteran was found to have front and maxillary sinus disease. He was also shown to have nasal obstruction secondary to septal deformity, turbinate reduction, and chronic sinusitis. As this evidence was not of record at the time of the August 2001 RO decision, it is new. Moreover, when presumed credible, the new evidence establishes that the Veteran had a current sinus disability, raising a reasonable possibility of substantiating the claim; thus, it is also material. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his claim for service connection. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Obstructive Sleep Apnea/Residuals of UVPP, Turbinate reduction, Tonsillectomy and Septoplasty Current obstructive sleep apnea has been established. See October 2008 records from Fort Walton Beach Medical Center, October 2009 VA examination report, and November 2015 letter from J. D. Siefker, M.D. In November 2015, the Veteran testified that he experienced early signs of obstructive sleep apnea in the early 1980's during his active service. He described having a hard time sleeping, being fatigued during the day, and exhibiting symptoms associated with somnolence. He explained that his symptoms had been variously attributed to a reflux disorder and to depression during service, but that it was not until after service that the symptoms were correctly attributed to obstructive sleep apnea. Lay statements dated in May 2009 and June 2012 submitted from acquaintances of the Veteran support observed symptoms associated with obstructive sleep apnea during his period of active service. The Veteran's service treatment records do not show a diagnosis of obstructive sleep apnea, however, records of treatment for both depression and gastroesophageal reflux disease show that he reported symptoms at that time including trouble sleeping, drowsiness, and never feeling rested. The October 2009 VA examination report shows that the examiner concluded that the Veteran's obstructive sleep apnea was less likely as not caused by or a result of sleep complaints during service because there had been multiple stressors at the time of the complaints, there was a showing of improvement in the symptoms after starting an anti-depressant, he had denied snoring, and a November 1998 service treatment records had not shown complaints of snoring or sleep difficulty. Contrarily, the November 2015 letter from Dr. Siefker shows that the Veteran was said to have a long history of obstructive sleep apnea dating back to the 1990's. Following a review of copies of the Veteran's military history, Dr. Siefker opined that it was more likely than not that there was a direct relationship between his obstructive sleep apnea and active service. It was explained that he had a history of obstructive sleep apnea while in service, but that he had been diagnosed with depression. The full impact of obstructive sleep apnea had not been noted, particularly the low energy daytime somnolence and associated problems with such as hypertension, etc. He continued to treat his obstructive sleep apnea with Continuous Positive Airway Pressure (CPAP) therapy. Dr. Siefker concluded, as a Board Certified Otolaryngologist, the knowledge of obstructive sleep apnea today and the symptoms experienced during active service would have resulted in a sleep study being performed and the results would reflect the proper diagnosis of obstructive sleep apnea with treatment of CPAP therapy. Having carefully considered the medical evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that, at the very least, a state of relative equipoise has been reached in this matter. As such, the benefit of the doubt is resolved in the Veteran's favor and service connection for obstructive sleep apnea is warranted. Additionally, Dr. Siefker's records indicate that the Veteran underwent a UVPP, turbinate reduction, tonsillectomy and septoplasty in November 2008 as result of now service-connected obstructive sleep apnea. Accordingly, secondary service connection for residuals from such surgery is warranted. 38 C.F.R. § 3.310. ORDER New and material evidence having been received, the claim of entitlement to service connection for sinusitis is reopened; to this extent only the claim is granted. Service connection for obstructive sleep apnea is granted. Service connection for residuals of UVPP, turbinate reduction, tonsillectomy and septoplasty is granted. REMAND Having reopened the previously denied claim of service connection for sinusitis, the Board finds that additional development is required prior to further adjudication of this matter. The service treatment records show that the Veteran had been treated for symptoms associated with a sinus disorder in October 1986 and January 1996. Following service, the VA examination in May 2000 showed no evidence of sinus infection. The October 2008 medical records from Fort Walton Beach Medical Center show front and maxillary sinus disease, and chronic sinusitis. During the November 2015 Board hearing, the Veteran testified that he has had his sinuses completely removed by Dr. Siefker. Upon remand, complete medical records from Dr. Siefker, as well as a VA examination addressing the current nature and etiology of the Veteran's sinus disability, should be obtained. As this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated VA outpatient treatment records. 2. With any necessary assistance from the Veteran, obtain complete records from Dr. Siefker, including those related to the November 10, 2008 sinus surgery. 3. Then schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of any sinus disability. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The examiner should answer all of the following questions as definitively as possible: (a)(i) Over the course of this appeal (since April 2009), has the Veteran had a diagnosed sinus disability? (ii) If so, it is at least as likely as not that such disability had its onset in service or is otherwise the result of service, to include documented sinus treatment therein? (iii) Is it at least as likely as not that the Veteran's diagnosed sinus disability was caused (in whole or in part) by a service-connected disability, to specifically include the service-connected obstructive sleep apnea? (iv) Is it at least as likely as not that the Veteran's diagnosed sinus disability is aggravated (made chronically worse) by a service-connected disability, to specifically include the service-connected obstructive sleep apnea? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. Then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs