Citation Nr: 1612804 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 14-42 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a sinus disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a headache disability (to include as secondary to a sinus disability). 3. Entitlement to service connection for a bilateral knee disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1982 to July 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Philadelphia, Pennsylvania Department of Veteran Affairs (VA) Regional Office (RO). In October 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. The Veteran had been represented by a private attorney who was decertified from practicing before VA. The Veteran was so advised by September 2014 correspondence, and afforded opportunity to appoint new representation; he has not done so. Regarding the claims to reopen, the Agency of Original Jurisdiction (AOJ) has reopened those claims implicitly by considering them de novo. Notwithstanding such action, whether new and material evidence has been received to reopen the claims must be addressed in the first instance by the Board because that issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them de novo. If the Board finds that no such evidence has been offered, that is where the analysis must end. Hence, what the AOJ may have determined in this regard is irrelevant. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issues of service connection for a sinus disability and headaches (on de novo review) are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. An unappealed November 1994 rating decision denied the Veteran service connection for a sinus disability based essentially on a finding that a chronic sinus condition was not shown to be related to his military service. 2. Evidence received since the November 1994 rating decision suggests that the Veteran has chronic sinusitis related to an injury in service; relates to an unestablished fact necessary to substantiate the underlying claim of service connection; and raises a reasonable possibility of substantiating such claim. 3. An unappealed November 1994 rating decision denied the Veteran service connection for headaches based essentially on a finding that a chronic disability manifested by headaches was not shown to be related to his military service. 4. Evidence received since the November 1994 rating decision suggests that the Veteran has headaches that may be related either to an injury in service, or to his claimed sinus disability; relates to an unestablished fact necessary to substantiate the underlying claim of service connection; and raises a reasonable possibility of substantiating such claim. 5. It is reasonably shown that the Veteran's current bilateral knee disability (osteoarthritis) is related to parachute training in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a sinus disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 2. New and material evidence has been received, and the claim of service connection for headaches may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 3. Service connection for bilateral knee arthritis is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits, and applies to the instant claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as this decision reopens the claims of service connection for a sinus disability and headaches and grants service connection for a bilateral knee disability, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. Claims to Reopen 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(a). When determining whether a claim should be reopened, the credibility of newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a), and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Sinus Disability An unappealed November 1994 rating decision denied the Veteran service connection for a sinus disability based essentially on a finding that the evidence did not show a chronic sinus condition was incurred in or aggravated by the Veteran's military service. It was noted that sinus complaints in service were "acute and transitory," and left no chronic residuals. The Veteran was notified of the November 1994 decision and his appellate rights, and did not timely initiate an appeal. Therefore, that decision is final based on the evidence then of record. Evidence in the record at the time of the November 1994 decision included service treatment records (STRs) (showing treatment for maxillary sinusitis in May 1983 and a motor vehicle accident in July 1983) and a September 1994 VA examination report (noting diagnoses of allergic rhinitis and nasal bleeding and swelling). Evidence received since the November 1994 decision includes updated VA treatment records (noting a history of epistaxis of questionable etiology that is suspected to originate from the nose); a May 2012 VA examination report (noting a history of epistaxis); and a November 2015 letter from the Veteran's primary care physician (noting a history of sinus disease and symptoms of chronic, recurring sinusitis and nosebleed that were likely related to a motor vehicle accident in service). As the previous denial was based on a finding that the Veteran did not have a chronic sinus disability (related to service), for evidence to be new and material, it must tend to show he has a chronic sinus disability and relate it to service. The letter from the Veteran's primary care provider was not previously in the record, and is new. Furthermore, it relates to the previously unestablished facts needed to substantiate the underlying claim of service connection for a sinus disability (i.e., it suggests he has a current sinus disability and relates it to events in service). In light of the above, and particularly considering the low threshold standard for reopening endorsed by the Court in Shade, the Board finds that the evidence also raises a reasonable possibility of substantiating such claim and is new and material. Therefore, the claim of service connection for a sinus disorder may be reopened. Headaches An unappealed November 1994 rating decision denied the Veteran service connection for migraine headaches based essentially on a finding that there was no evidence he had chronic migraine headaches which were incurred in or aggravated by his military service. Specifically, it noted that the complaints of headaches and congestion in service were acute and transitory, with no chronic residuals shown thereafter. The Veteran was notified of that decision and his appellate rights, and did not appeal it. Therefore, that decision became final based on the evidence then of record. Evidence in the record at the time of the November 1994 decision included the Veteran's STRs (noting headaches in service associated with treatment for maxillary sinusitis), and a September 1994 VA examination report (noting complaints of headaches). Evidence received since the November 1994 decision includes lay statements from the Veteran's wife and daughter corroborating he has recurrent headaches associated with his nasal and sinus complaints; his hearing testimony alleging that his headaches are secondary to his alleged sinus disability; and a May 2012 VA examination report noting a diagnosis of sinus headaches and indicating such are related to the Veteran's military service. As the prior final denial was based on a finding that the Veteran did not have a chronic headache disability that was incurred or aggravated in service, for evidence to be new and material, it must relate to the then unestablished facts (i.e., it must tend to show he has a chronic headache disability that is related to his service). Evidence received since the 1994 rating decision includes a May 2012 VA examination report indicating that the Veteran has a headache disability and relating it to his service). Such evidence was not previously in the record, and is new. It relates directly to a previously unestablished fact necessary to substantiate the claim, and is material. Furthermore, the Veteran has presented an alternate theory of entitlement for the headaches (alleging it is secondary to a sinus disability for which service connection is also sought). In light of the above, and particularly considering the low threshold standard for reopening endorsed in Shade, the Board finds the new evidence also raises a reasonable possibility of substantiating the claim of service connection for headaches. Accordingly, the claim of service connection for headaches (to include as secondary to his sinus disability) may be reopened. Service Connection: Bilateral Knee Disability Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge when the evidence establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's service personnel records confirm that he served in the 82nd Airborne Division. His STRs are silent regarding complaints, treatment, or diagnosis related to a knee disability. July 2012 VA records show that X-rays found no evidence of fracture or dislocation in either knee, but found mild degenerative changes suggested by mild spiking of the tibial spines bilaterally. In April 2013, the Veteran said he was suffering from knee problems related to his duties with the 82nd Airborne Division. A November 2014 VA record documents a diagnosis of bilateral knee osteoarthritis. At his October 2015 VA hearing, the Veteran testified that he parachuted during service. He stated that his doctor had diagnosed osteoarthritis of the knees. Thereafter, he submitted November 2015 VA records which note a diagnosis of bilateral knee osteoarthritis, confirmed by X-rays in 2012 and November 2015. The November 2015 X-rays showed mild advancement, and the treating doctor (Dr. Yellman) specifically indicated that, given the intense strain on the knees as a part of military service (specifically referring to parachute jumps), the Veteran's risk for developing osteoarthritic changes years following service "increased tenfold." He opined that the parachuting had contributed to the Veteran's current bilateral knee pathology. It is not in dispute that the Veteran has bilateral knee osteoarthritis; VA records note that X-rays have confirmed such disability. His service personnel records corroborate his reports of serving in the 82nd Airborne Division. It may reasonably be conceded that his duties in service included multiple parachute jumps. Given the nature of the activity, it may also be conceded that by virtue of the multiple jump landings, the Veteran sustained repeated trauma to his knees. What remains necessary to establish service connection is competent medical evidence of a relationship between his current bilateral knee osteoarthritis and his parachute jump activities in service. That is a medical question that requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Here, the only medical opinion that addresses this question in the record is from the Veteran's VA rheumatologist, Dr. Yellman. That opinion indicates specifically that the intense strain on the Veteran's knees from parachuting in service, has contributed to [caused] his current bilateral knee disability. As that opinion reflects familiarity with the relevant medical history and is supported by rationale (that such activity increases the risk for developing osteoarthritic changes in his knees tenfold), it is probative evidence in this matter. The Board has no reason to question the expertise of the VA provider. As there is no medical opinion to the contrary, it is also persuasive evidence. Consequently, service connection for bilateral knee arthritis is warranted. ORDER The appeals to reopen claims of service connection for a sinus disability and for headaches are granted. Service connection for bilateral knee arthritis is granted. REMAND Regarding the claim of service connection for a sinus disability, the record contains conflicting medical evidence as to the nature and etiology of his current pathology. While the May 2012 VA examination report notes the Veteran did not have any sinus pathology, and merely presents with a history of epistaxis (that is unrelated to his service), his primary care physician notes a diagnosis of chronic, recurrent sinusitis (that is likely due to injury from a motor vehicle accident). Therefore, a new examination to clarify the nature and likely etiology of this claimed disability is necessary. The only medical opinion regarding the Veteran's headaches (provided on May 2012 VA examination), is unaccompanied by rationale. Moreover, the Veteran has affirmatively alleged that his headaches are secondary to his alleged sinus disability (resulting in the matters being inextricably intertwined). Should it be determined he has a sinus disability that is service-connected, a medical nexus opinion addressing the secondary service connection theory of entitlement would be necessary. Finally, the Veteran has submitted November 2015 VA treatment records that show he receives ongoing VA treatment for the disabilities remaining on appeal. Updated records of such treatment may contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record complete, updated clinical records of all VA evaluations and/or treatment the Veteran has received for a sinus disability and headaches (i.e., those not already in the record), specifically including all such records dated since January 2015. 2. The AOJ should thereafter arrange for an otolaryngology examination of the Veteran to determine the presence, nature, and likely etiology of his claimed sinus disability. The entire record must be reviewed in conjunction with the examination, and any tests or studies deemed necessary must be completed. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a. Please identify, by diagnosis, each sinus disability entity found. The examiner should reconcile all diagnostic findings with conflicting evidence in the record, to specifically include the November 2015 letter from the Veteran's VA primary care provider (Dr. Grodecki). b. Please identify the likely etiology of any chronic sinus disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran's military service? The examiner must include rationale with all opinions, specifically discussing the significance of the treatment for maxillary sinusitis in service and the July 1983 motor vehicle accident that resulted in facial trauma. The opinions provided should be reconciled with any conflicting opinions in the record. 3. Thereafter, the AOJ should also arrange for the Veteran to be examined by a neurologist to determine the existence, nature, and likely etiology of his headaches. The entire record must be reviewed in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a. Does the Veteran have a chronic headache disorder? If so, please identify it by diagnosis. b. Please identify the etiology for any headache disorder diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) related to the Veteran's service/events therein? If not, was it caused or aggravated by any sinusitis found on ENT examination? All findings must be reconciled with any conflicting evidence in the record. All opinions must include rationale. 4. The AOJ should then review the record and readjudicate the remaining claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs