Citation Nr: 1608954	
Decision Date: 03/07/16    Archive Date: 03/15/16

DOCKET NO.  10-40 487	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for sinusitis.

2.  Entitlement to service connection for sinusitis.

3.  Entitlement to service connection for right ear hearing loss. 

4.  Entitlement to service connection for anosmia. 


ATTORNEY FOR THE BOARD

Ashley Castillo, Associate Counsel





INTRODUCTION

The Veteran served on active duty from February 1972 to February 1974.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  Although the RO reopened the previously denied the claim of entitlement to service connection for sinusitis, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim).  As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for sinusitis, before reaching any merits determination.  

The Board notes that in his September 2010 substantive appeal (VA Form 9) and other correspondence, the Veteran, who is incarcerated, requested a videoconference hearing.  In February 2013 and July 2014, the Board remanded the Veteran's claims in efforts to tailor his hearing request to the circumstances of his confinement.  In August 2014 and October 2014, the RO contacted the Veteran's correctional facility to inquire whether a videoconference hearing could be held onsite or at the Nashville RO.  The Veteran's correctional facility did not respond.  Subsequently, in an April 2015 statement, the Veteran indicated that he has "lost his ability to talk," and that all "communication "'must' be done via letter(s)," thereby rendering him unable to participate in a Board hearing.  Accordingly, in a November 2015 notification letter, the Board offered the Veteran a period of 60 days to submit any evidence or argument.  The Veteran did not respond.  

Additionally, the Veteran has submitted several statements indicating that he is unable to obtain representation due to his incarcerated status and requesting an extension of time to obtain representation.  In a September 2015 letter, the Board informed the Veteran that he had 30 days to appoint a new representative.  In September 2015 correspondence, the Veteran stated that he protested the Board's decision to proceed with his appeal after 30 days without a representative.  In a November 2015 letter, the Board advised the Veteran of websites that provided a list of Veterans Service Organizations (VSOs), VA accredited attorneys, and claims agents, and afforded him 60 days to appoint a new representative before proceeding with the appeal.  No response was received.  Accordingly, the Veteran is considered unrepresented in this matter.  

The February 2013 and July 2014 Board remands referred a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) to the Agency of Original Jurisdiction (AOJ).  No action has been taken on the claim; thus, it is again referred to the AOJ for disposition.

The issues of entitlement to service connection for sinusitis, anosmia, and right ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  In a July 1974 rating decision, the RO denied the Veteran's claim of entitlement to service connection for sinusitis.  The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance.

2.  Evidence received more than one year since the July 1974 rating decision relates to an unestablished fact that raises a reasonable possibility of substantiating the claim.



CONCLUSIONS OF LAW

1.  The July 1974 rating decision that denied the claim of entitlement to service connection for sinusitis is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. 
§§ 20.302, 20.1103 (2015).

2.  New and material evidence has been received to reopen the claim of entitlement to service connection for sinusitis.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. 
§ 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

The Veteran's original claim of service connection for sinusitis was denied in a July 1974 rating decision, for lack of evidence of sinusitis at the time of the Veteran's separation from service.  The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance.  

Accordingly, the July 1974 rating decision is final.  See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.

The claim may be reopened if new and material evidence is submitted.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the 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.  38 C.F.R. § 3.156(a).  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  
The relevant evidence of record at the time of the July 1974 included the Veteran's May 1974 claim and his service treatment records (STRs). 

Relevant evidence received more than one year since the July 1974 rating decision includes VA treatment records, a private treatment record dated in 2001, and the Veteran's statements relating his sinusitis to his active military service.  (In this regard, the Board acknowledges that a May 1974 VA treatment record documenting "sinus trouble" was not associated with the record until 2009, yet was in VA's constructive possession at the time of the July 1974 rating decision.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  To the extent it may be argued that the RO's failure to consider this evidence constituted clear and unmistakable error (CUE), the Board emphases that, at most, the record would have triggered VA to obtain an examination, and a breach of VA's duty to assist cannot constitute CUE.  Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also 38 C.F.R. 
§ 20.1403(d)(2)).  

The VA and private treatment records show continuing reports of sinusitis symptomatology.  Furthermore, the Veteran's statements reveal that he suffered an in-service event that caused his sinusitis and has had it since his separation from service.  The additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by suggesting that the Veteran's sinusitis may be related to service.  38 C.F.R. § 3.156.  Accordingly, the claim for service connection for sinusitis is reopened.


ORDER

New and material evidence having been received; the claim of entitlement to service connection for sinusitis is reopened; to this limited extent, the appeal is granted.



REMAND

The Veteran asserts that he incurred sinusitis and anosmia during service as a result of biological gas warfare training.  

Notably, multiple STRs reveal complaints of cold symptoms, such as sore throat and sinus and nose problems, and that he was hospitalized for an upper respiratory infection.  See, e.g., STRs dated March 1972, September 1972 and October 1973.  

Post-service medical evidence dated from 1974 through 1978 shows continuing reports of sinusitis symptomatology and diagnoses such as allergic rhinitis and seasonal rhinitis.  See, e.g., VA treatment records dated May 1974, October 1978, and October 1982.  However, the Veteran's most recent treatment report relating to his claims are an April 2001 Tennessee Department of Corrections x-ray report revealing a diagnosis of chronic pansinusitis and a 2003 Tennessee Department of Corrections treatment report noting the Veteran's complaints of the inability to smell.  

To this end, the Board finds that the Veteran's competent and credible lay statements indicate that he may have a current disability that is associated with his active service.  However, the record does not contain sufficient evidence for the Board to make a decision on these issues.  Thus, a remand is necessary to afford him VA examinations to determine the nature and etiology of his claimed anosmia and sinusitis.  See 38 U.S.C.A. § 5103 A (d); 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006).  

As to the Veteran's right ear hearing loss claim, the Veteran asserts that he has right ear hearing loss and that it is due to acoustic trauma sustained during military service.  

Specifically, the Veteran asserts that he was exposed to gun fire and small arms noise while training at a gun range and a hand grenade range during his military service.  To this end, the Veteran's DD Form 214 reveals that he is a recipient of an Expert Badge with M-16 Rifle Bar.  The Board has no reason to dispute the Veteran's credible lay statement concerning in-service noise exposure, as it is consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a).  Additionally, the Veteran's STRs document pain in his right ear.  See STR dated September 1973.

Post-service treatment records reveal right ear hearing loss complaints as early as October 1976.  See also Tennessee Department of Corrections report dated February 1995.  And more recently, a March 2004 Tennessee Department of Corrections clinical evaluation report suggests a diagnosis of right ear hearing loss.  However, such treatment records fail to provide any audiogram reports to confirm right ear hearing loss as defined by VA.  Accordingly, a remand is necessary to afford the Veteran a VA examination to assess the nature and etiology of his right ear hearing loss.  

In this regard, the Board notes that VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination.  Bolton v. Brown, 8 Vet. App. 185 (1995). 

The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated veterans.  The manual calls for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether a Veteran should be escorted to a VA medical facility for examination by VHA personnel.  If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA.  M21-1, Part III.iv.3.A.9.d.  In this case, as the Veteran is incarcerated, the attempt to schedule an examination should be undertaken pursuant to this guidance.

Additionally, should they exist, treatment records from the Tennessee Department of Corrections should be obtained on remand.


Accordingly, the case is REMANDED for the following action:

1.  With any necessary assistance from the Veteran, procure any records of outstanding treatment that the Veteran has recently received from the Tennessee Department of Corrections.

If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).

2.  Then schedule the examination pursuant to the guidance in M21-1, Part III.iv.3.A.9.d.  If the Veteran is unavailable for examination after following those procedures due to incarceration, document in detail all of the steps taken in attempting to conduct an examination and obtain a medical opinion on these issues from a VA or VA-contracted physician.  

The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion.

The examiner should address the following:

i.)  Whether the Veteran has right ear hearing loss disability for VA compensation purposes, and if so, whether it is at least as likely as not (50 percent probability or greater) that current right ear hearing loss is related to any incident of military service, including conceded in-service noise exposure and documented right ear pain therein. 

ii.)  Whether the Veteran has a sinusitis disability, and if so, whether it is at least as likely as not (50 percent probability or greater) that such disability is related to any incident of military service, to include as a result of biological gas warfare training or documented treatment for nose and sinus problems and an upper respiratory infection therein.

iii.)  Whether it is at least as likely as not (50 percent probability or greater) that current anosmia is related to any incident of military service, to include as a result of biological gas warfare training?

3.  Thereafter, readjudicate the claims and issue a Supplemental Statement of the Case, as appropriate.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2015).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b).


Department of Veterans Affairs