Citation Nr: 1612176	
Decision Date: 03/25/16    Archive Date: 03/29/16

DOCKET NO.  14-34 873A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
The Commonwealth of Puerto Rico


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for pansinusitis.

2. Entitlement to service connection for pansinusitis.

3. Entitlement to service connection for pulmonary disease due to mycobacterium.

4. Entitlement to service connection for right upper lobe posterior segment cavitary lesion of the lung, claimed as bronchiectasis.

5. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, secondary to respiratory problems.

6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty from January 1969 to December 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in July 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

The issues of entitlement to service connection for pansinusitis, pulmonary disease due to mycobacterium, right upper lobe cavitary lesion, and anxiety disorder, as well as entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. A Board decision issued in May 1975 denied service connection for sinusitis with headaches and a respiratory disorder finding no evidence that any such disabilities were linked to service.

2. Evidence received since the May 1975 Board decision with respect to the Veteran's claim of service connection for pansinusitis was not previously considered and raises a reasonable possibility of substantiating the claim.



CONCLUSIONS OF LAW

1. The May 1975 Board decision denying service connection for sinusitis with headaches and a respiratory disorder is final.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

2. The evidence received since the May 1975 Board decision with respect to the claim of service connection for pansinusitis is new and material and the claim is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  The VCAA applies to the instant claim.  However, inasmuch as this decision grants the benefit sought on appeal, there is no reason to belabor the impact of the VCAA on this matter; any notice error or duty to assist failure as to this claim is harmless.

Legal Standard for Reopening a Claim

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.

"New" evidence means existing evidence not previously submitted to agency decision makers.  "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.  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.

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The newly presented evidence need not be probative of all the elements required to award the claim.  Evans v. Brown, 9 Vet. App. 273 (1996).  Additionally, the evidence necessary to meet the criteria of raising a reasonable possibility of substantiating the claim should be interpreted as enabling rather than precluding reopening.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

Analysis

At the time of the Board's decision in May 1975 denying service connection for pansinuitis, the evidence of record consisted of the Veteran's service treatment records and medical treatment records for respiratory complaints in August 1972, as well as the Veteran's testimony at hearing about having been hospitalized for 12 days with a cold, headaches and high fever.  The Board found that the Veteran's service treatment records did not show a chronic condition to include sinusitis and that the separation physical examination and chest X-ray were normal.

Since the May 1975 Board decision, the Veteran has submitted additional evidence, including his own statements regarding his history of sinus infections and other respiratory problems, medical records from treatment for symptoms of respiratory problems in 2008, and a September 2012 statement from a private provider linking the Veteran's pansinusitis to the conditions of his service and his illness in service.  These documents were not previously considered in adjudicating the claim and are directly relevant to the basis for the previous denial, namely a link between the in service complaints and his current disability.  As such, they constitute new and material evidence sufficient to reopen the claim of service connection for pansinusitis.  38 C.F.R. § 3.156.

ORDER

New and material evidence having been received with respect to the Veteran's claim of service connection for pansinusitis, the claim is reopened and, to that extent only, the appeal is granted.


REMAND

The Veteran has applied for service connection for several respiratory related conditions which are, to some extent, intertwined.  He has submitted a private medical opinion in September 2012 which links all of them to service, noting specifically that the development of a sinus condition in service led to the inability to clear out mucus from his lungs, thereby allowing bacteria to grow and serious lung damage to occur.  A VA examination in June 2013 addressed the Veteran's history of respiratory complaints, noted that a chest X-ray in 2001 was normal but that in 2008, after renovating his home, the Veteran had abnormal findings on chest X-ray.  The VA examiner offered the opinion that the Veteran's respiratory complaints were not the result of any complaints in service, but did not address the factors discussed in the September 2012 private opinion.

Given the conflicting medical opinions and the intertwined nature of the disabilities, the Board finds that further development is warranted.  Specifically, an expert opinion by a pulmonologist should be obtained to reconcile the medical opinions.  Moreover, since a review of the claims file revealed discussion in the VA treatment records that the Veteran had undergone nasal surgery at some point, a full examination which includes obtaining as complete a history of the Veteran's various respiratory complaints as is possible should be included.  

In addition, the Veteran seeks service connection for an acquired psychiatric disability, to include anxiety and depression, which he attributes to his respiratory problems.  The September 2012 private opinion linked the onset of the Veteran's feelings of depression to and related symptoms to the 2008 diagnosis of cavitary lesion in the right lung.  The Veteran attributes his anxiety symptoms to panic over restricted air flow.  While the question of secondary service connection for an acquired psychiatric disability is necessarily contingent on the outcome of the claims of service connection for respiratory disabilities, the Board notes that if any future psychiatric examination is performed in relation to this claim, these factors should be addressed in the opinion.

Finally, the Veteran has filed a claim for TDIU based on his respiratory disabilities and resulting acquired psychiatric disabilities.  Again, the outcome of this claim is inexplicably intertwined with that of the question of service connection for these other disabilities.  As such, the Board may not issue a determination on the question until the remand directives below are completed.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Afford the Veteran an appropriate VA examination by a pulmonologist to determine whether it is at least as likely as not (probability 50 percent or greater) that any of his current respiratory disabilities, to include pansinusitis, pulmonary disease due to mycobacterium, and right upper lobe cavitary lesion was incurred in or is otherwise the result of service, to include exposure to tear gas, gun powder, and cold weather, as well as double pneumonia.  

The examiner is instructed to obtain a complete history from the Veteran of all respiratory difficulties in symptoms beginning in service, to include treatment such as nasal surgery.  The examiner is also instructed that, unless a specific reason to the contrary can be given, the history of hospitalization in service in 1979 for up to 12 days with pneumonia is to be accepted as true when rendering an opinion.

The examiner should address the evidence of sinusitis in 1972, within a few years of service separation, and offer an opinion as to whether that indicates a chronic disability was incurred in service.  

The examiner should review the September 2012 statement from Dr. Ortiz regarding a link between the Veteran's various respiratory conditions and his military service and the June 2013 VA examination report.  These reports should be addressed with respect to the theories and explanations contained therein, to include any supporting or contradictory evidence in the record or the relevant medical literature.  The examiner should specifically address the significance, if any, of the length of time between the Veteran's military service and the development of the cavitary lesion in the right upper lobe, the findings of the January 2006 chest X-ray, the Veteran's history as a "lifetime jogger" discussed in VA treatment records, and any bearing these factors might have on the question of etiology of the various respiratory conditions on appeal.

The examiner is instructed that any records which indicate that the Veteran was a smoker are to be disregarded.  The examiner is further instructed that the record was corrected by the Veteran's treating physician at VA to show that he had no history of tobacco use, although he did have exposure to second-hand smoke.

After reviewing and considering all of the evidence and all of the points discussed above, the examiner should offer separate opinions addressing the following:

a) Are any of the Veteran's current respiratory disabilities at least as likely as not (probability 50 percent or greater) the result of his exposure to tear gas, gun powder, and/or cold weather in service, and/or related to his in-service congestion and treatment for pneumonia?

b) Is the Veteran's pansinusitis specifically at least as likely as not (probability 50 percent or greater) the result of his service, to include the complaints of respiratory problems?

c) Is the Veteran's cavitary lesion of the right upper lobe at least as likely as not (probability 50 percent or greater) the result of his hospitalization with double pneumonia in service?

d) If the Veteran's pansinusitis is determined to be the result of service, are either or both of the other respiratory disabilities, namely pulmonary disease due to mycobacterium and/or cavitary lesion of the right upper lobe, at least as likely as not (probability 50 percent or greater) caused by his pansinusitis?

e) If the Veteran's pansinusitis is determined to be the result of service but not the cause of either the pulmonary disease due to mycobacterium and/or cavitary lesion of the right upper lobe, have either or both of the conditions at least as likely as not (probability 50 percent or greater) been aggravated (permanently worsened beyond the ordinary course of the condition) by the pansinusitis?

f) If the Veteran's cavitary lesion of the right upper lobe is determined to be the result of service, is the pulmonary disease due to mycobacterium at least as likely as not (probability 50 percent or greater) caused or aggravated by the cavitary lesion?

g) If the Veteran's cavitary lesion of the right upper lobe is determined to be the result of service, is the Veteran's pansinusitis at least as likely as not aggravated by the cavitary lesion?

The examiner should provide a statement outlining the rationale for any and all opinions rendered.  A copy of the entire electronic claims file, to include both VBMS and Virtual VA records, should be provided to the examiner for review.

Should the examiner find that it is impossible to offer an opinion on any of the questions above without resorting to speculation, the examiner should explain what other evidence or information would make it possible to offer an opinion.  Should the examiner find that any of the disabilities on appeal or the questions posed is more appropriately directed to a practitioner of another medical specialty, the examiner should so state and the matter should be referred to such practitioner.

2. After the VA examination and opinion is received, the RO/AMC should review it in detail to ensure that each of the above questions has been answered completely and that all of the disabilities on appeal have been addressed.

3. The RO should also undertake any other indicated development suggested by the outcome of the development ordered above, to include arranging for an examination if necessary to address the Veteran's contingent claims of service connection for an acquired psychiatric disability secondary to respiratory disabilities and of entitlement to TDIU.  If an examination is ordered on the matter of acquired psychiatric disability, the instructions should include the considerations set forth in the body of the remand above.

4. The RO/AMC should then readjudicate the issues on appeal, to include the contingent issues of entitlement to service connection for an acquired psychiatric disability secondary to respiratory disability and entitlement to TDIU.  If any of the benefits sought on appeal are not granted in full, the RO/AMC must issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative, if any, an opportunity to respond.


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


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This claim must be afforded expeditious treatment.  The law requires that all claims 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).



______________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs