Citation Nr: 1627527 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 11-15 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for sinusitis, and if so, whether service connection for such is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for migraine headaches, and if so, whether service connection for such is warranted. 3. Entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.E. Tracy, Associate Counsel INTRODUCTION The Veteran had active service from February 1984 to July 1984, January 1985 to September 1986, and September 1986 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issue of entitlement to service connection for sinusitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2000 rating decision, the RO denied service connection for sinusitis, and the decision is final. 2. The evidence received since the April 2000 RO decision regarding the Veteran's claim to service connection for sinusitis is not cumulative of the evidence previously considered, contributes to a more complete picture of the Veteran's claim, and creates a reasonable possibility of an allowance of his claim. 3. The Board denied service connection for headaches in a March 2006 decision. The Veteran did not appeal that decision, and the decision is final. 4. The evidence added to the record since the last final decision in March 2006 regarding the Veteran's claim to service connection for migraine headaches is cumulative of the evidence previously considered, does not contribute to a more complete picture of the Veteran's claim, and does not create a reasonable possibility of an allowance of the claim. 5. The preponderance of the evidence does not support a finding that the Veteran has allergic rhinitis causally related to, or aggravated by, service. CONCLUSIONS OF LAW 1. The April 2000 rating decision, which denied the Veteran's service connection claim for sinusitis, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence has been received to reopen the claim for service connection for sinusitis. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The March 2006 Board decision that denied service connection for headaches is final. 38 U.S.C.A. § 7103 (West 2014); 38 C.F.R. § 20.1100 (2015). 4. New and material evidence has not been received to reopen the claim for service connection for migraine headaches. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 5. The criteria for service connection for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. 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). VA's Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board notes that the Veteran had several periods of active duty service time. Some of his service treatment records (STRs) from January 1985 to September 1986, have been determined to be unavailable. In an April 2011 memorandum, VA concluded that the Veteran's records from that period are not available and any further attempts to locate them would be futile. The Board exercised a heightened obligation to carefully apply the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative nexus evidence causally relating the current disability at issue to service is not eliminated. Russo v. Brown, 9 Vet. App. 46 (1996). New and Material Evidence Unappealed rating actions of the RO are final. 38 U.S.C.A. § 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. New and material evidence must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). "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 the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, 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). Sinusitis The appellant did not appeal the April 2000 rating decision that denied service connection for sinusitis or submit any additional evidence during the appeal period. That decision was the last time the appellant's claim on that issue was finally disallowed on any basis. See Glynn v. Brown, 6 Vet. App. 523 (1994). Thus, the April 2000 rating decision is final. 38 C.F.R. § 20.1100. The pertinent evidence of record at the time of the April 2000 rating decision included STRs and post-service treatment records. The rating decision noted that the Veteran was treated for sinusitis during his period of active military service. However, the RO found that there was no evidence showing the Veteran had a chronic condition. Post-service VA treatment records showed the Veteran being treated occasionally for bronchitis and sinusitis. Evidence received since the April 2000 rating decision includes additional treatment records and the Veteran's statements. The Veteran's treatment records show that he has been receiving treatment for sinusitis for many years. Even at times when the Veteran is being seen for other conditions, he mentions symptoms of sinusitis. For example, at a sleep study in 2004, the Veteran complained of year round sinus drainage. Also, VA treatment records have continually noted that sinusitis is a chronic condition the Veteran experiences. There are also records from HealthSouth dated in 2003 that indicate treatment for sinusitis. The Board finds that the post-2000 treatment records and the lay statements are new evidence, as they are not cumulative or redundant and were not previously considered. The evidence, especially concerning the chronicity of symptoms, is also material because it relates to an unestablished fact and supports the Veteran's claim for service connection. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low; the Board finds that the threshold is met and that VA's duty to assist is triggered. As new and material evidence has been received, reopening of the claim for entitlement to service connection for sinusitis is warranted. De novo review of the claim is addressed in the remand below. Migraine Headaches The RO initially denied service connection for headaches in December 2001. That decision was appealed to the Board and the Board denied the claim in March 2006, finding that there was no connection to service for his headache complaints. While the Veteran appealed other issues from the March 2006 Board decision, he abandoned the appeal of the issue of service connection for headaches. Thus that Board decision is final. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. The pertinent evidence of record at the time of the March 2006 Board decision denying service connection for headaches included service treatment records, post-service treatment records, a VA examination and medical opinion. Although the Veteran had claimed that he was treated for headaches in service, the Board found that there was no chronic headache condition shown in service and no current headache disability. Post-service, the medical evidence shows complaints of headaches and a diagnosis of tension headaches in March 1999. However, at the VA medical opinion in June 2005 there were no complaints of headaches and a headache disorder was not diagnosed. Evidence received since the March 2006 Board decision includes additional treatment records and the Veteran's statements. The file contains extensive Social Security Administration (SSA) records. The Veteran has been receiving disability benefits from SSA since 2009. The basis for his claim for SSA disability benefits were his shoulders, back and diabetes. Other issues noted in the records include hypertension, reflux, high cholesterol, and a problem with his left Achilles. The treatment records cover many years. On some occasions there are reports of the Veteran complaining of headaches and migraines. But the treatment records do not contain any diagnosis of a migraine condition or chronic headaches. Further, there is no indication that any headache the Veteran reported was at all related to his period of service. As noted above, some of the Veteran's STRs are unavailable. However, the separation examination from April 1992 is in the file and was considered by the Board in 2006. At that examination, the Veteran did not complain of any migraine or headache issue. Further, the post-service treatment records showing treatment for headaches in October 1992 when he had an upper respiratory condition and in November 1996 when he complained of headaches for several weeks were considered by the Board in 2006. The more recent post-service treatment records, while showing complaints of headaches offer no new information regarding a relationship between the Veteran's headaches and service. None of the new evidence shows a chronic headache disability in service; thus does not relate to an unestablished fact necessary to substantiate the claim. The Board finds that the Veteran's assertions are redundant of the prior contentions that were already considered and rejected by the 2006 Board decision. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). In sum, the evidence received since March 2006 Board decision raises no reasonable possibility of substantiating the claim for service connection for migraine headaches. Thus, it is not material within the meaning of 38 C.F.R. § 3.156(a) and the claim is not reopened. Service Connection for Allergic Rhinitis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran's STRs show that at the Veteran's entrance examination in January 1984, clinical evaluation of the head, nose, and sinuses were all normal. When the Veteran re-enlisted in 1986, an examination that June showed that the Veteran complained of seasonal allergies and that he had frequent colds on the Report of Medical History. He denied sinusitis, severe headaches, hay fever, and ear, nose, or throat trouble. At the examination, clinical evaluation of the head, nose, and sinuses were all normal. The same results were found at a periodic examination in May 1990. On the Report of Medical History completed in May 1990, the Veteran indicated that he did not suffer from frequent or severe headaches, chronic or frequent colds, sinusitis, hay fever, and ear, nose or throat trouble. In November 1987, the Veteran was treated for a sore throat. In June 1989, the Veteran reported with complaints of shortness of breath and cough. He was assessed as having extreme congestion. He was diagnosed with a head cold. The Veteran was seen a few weeks later and reported he was asthmatic but had never been treated. He was diagnosed with allergic rhinitis. In June 1991, he was seen again for a sore throat. On his Report of Medical History at his separation examination in April 1992, the Veteran denied frequent or severe headaches, ear, nose, or throat trouble, chronic or frequent colds, sinusitis, hay fever, asthma, or shortness of breath. He did complain of chest pain or pressure during physical activities. The examination found normal results after clinical evaluation of the head, nose, and sinuses. The Veteran underwent a VA examination in May 2009. The report provides the following history: "...denies any history of asthma. He has a longstanding history of allergic rhinitis and vasomotor rhinitis. He has been treated by the allergy specialist here at the Birmingham VA Medical Center and their treatment records are available. He had been on allergy immunotherapy until March 2009, did not feel that it was helping and therefore he has discontinued that. He has year-round itchy eyes, sneezing, nasal congestion, and intermittent headaches. When he feels congested and full he will have headaches. He typically does not have sinus infections although he has had them in the past. His records from the allergy clinic here indicate that he gets relief...with Sudafed... He has not had surgery on his nose. He has not had significant improvement with therapy." The report continues, "allergy patients generally report not feeling well when allergy symptoms are flared such as his are. He does not have complete interference with breathing through his nose. No purulent drainage is present currently. His speech is not impaired although his voice is somewhat husky. He continues to smoke tobacco." "On exam his hearing is not impaired. His external auditory canals are normal bilaterally. He has a positive light reflex no discharge. In his nose bilaterally his nasal membranes are swollen and erythematous no drainage. Air passes through each side of his nose. His pharynx is not injected. His neck has no adenopathy. There is no septal deviation. There is no complete obstruction. However nasal passages are bilaterally 30% of completely patent." The Veteran was diagnosed with allergic rhinitis as well as vasomotor rhinitis with no significant improvement with current therapy. The claims file was not available to the examiner prior to the examination; however, after the examination, the examiner reviewed the file before providing the following opinion: "I have reviewed the claims file including most significantly, the service medical records including an entry from 06/28/1989... Careful review of the service medical records includes several bouts of pharyngitis. On 06/21/1989 he was evaluated for breathing difficulties found to have productive cough with paroxysms of coughing and an upper respiratory infection. One week later on 06/28/1989 he complained of a week and a half of nasal stuffiness. [The] impression was allergic rhinitis. In retrospect, review...medical records reveals no complaints of nasal stuffiness and no recurrent complaints of seasonal allergies, itchy eyes, or evaluation for similar symptoms. With that visit one week earlier with a cough and viral infection, it is most likely that his 06/28/1989 symptoms represented a continuation of the viral infection and bronchitis perhaps contributed to by his tobacco use as well. There is no compelling evidence in the review of his service and medical records that he had a clear cut diagnosis of allergic rhinitis. Currently he clearly has allergic rhinitis as well as perennial symptoms likely with vasomotor rhinitis as well. It is my opinion that his current allergic rhinitis is not the same as those symptoms which occurred during his active military service and that the association of the fact that his 06/28/1989 medical visit and treatment occurred within a week of his treatment for an upper respiratory infection makes it most likely that those 06/28/1989 symptoms were due to a slight prolongation of an upper respiratory infection rather than allergic rhinitis." As noted above, the Veteran's claims file includes SSA records and extensive post-service treatment records. However, these records do not provide support in favor of service connection. The majority of the records concern other conditions. The earliest mention of allergic rhinitis post-service was in a private medical record dated in March 2000. The record is from the UAB Health Center - Roebuck. The record includes the following: The Veteran "comes in stating that he had a problem with asthma and allergic rhinitis while he was in the military. He wants to get some disability from the military. He said he had asthma and was told that he needed to be treated. He said it was never fully evaluated. He has never mentioned it in a visit here in the past. He has been seen for other problems but not allergies or allergic type problems. He is currently experiencing some runny nose sneezing and cough symptoms." While the note includes an assessment of allergic rhinitis there is no opinion on etiology and the note specifically indicates that the Veteran had not made complaints of allergies or asthma before that visit. Prior to that date he did not complain of symptoms of allergic rhinitis. For example, a discharge summary after a back problem from the VAMC in October 1995 noted that the lungs were clear. At a general examination in April 2004, a history of recurrent sinusitis treated with over the counter drugs was noted. However, no other current lung or respiratory condition was noted. The lungs were clear. A June 2005 VA examination noted that the Veteran does not have a diagnosis of asthma. VA treatment records begin listing allergic rhinitis as an ongoing condition in December 2008. Since that time, the Veteran was treated for allergic rhinitis. As noted by the VA examiner, the Veteran has been treated for the condition since that time by an allergy specialist. The Board notes that there is no opinion on the etiology of the allergic rhinitis in those treatment records. There is no medical opinion that links the Veteran's current allergic rhinitis and his period of service. Therefore, the medical evidence weighs against a finding of service connection. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, in the present case, there is an absence of clinical records of allergic rhinitis for more than a decade after service. While there is a mention of allergic rhinitis in 2000 (8 years after service), there was no comment on a relationship between that finding and service. While the STRs include one assessment of allergic rhinitis, the competent VA medical opinion weighs in favor of a finding that the Veteran did not have allergic rhinitis at that time. Instead, the Veteran was suffering from symptoms of an acute upper respiratory infection. The Board also considered the lay statements of the Veteran. Although lay persons are competent to provide opinions on some medical issues, allergic rhinitis could have multiple etiologies and thus falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1377. The Veteran, as a lay person, is not competent to offer an opinion on the issue here. In sum, the evidence of record does not support a finding that service connection is warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The Veteran's previously denied claim to service connection for sinusitis is reopened; the appeal is allowed to this extent. The claim to reopen the previously denied claim to service connection for migraine headaches is denied. Entitlement to service connection for allergic rhinitis is denied. REMAND The Veteran was treated for sinusitis in service and the record includes treatment since service and the Veteran's report of chronic symptoms since then. A examination and opinion are necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for sinusitis since January 2010. After securing the necessary release, take all appropriate action to obtain these records. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any sinus condition. The claims file, including a copy of this REMAND, must be made available to the examiner for review. Based on the examination and review of the record, the examiner should address the following question: Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed sinus disorder was incurred in or aggravated by service? Please discuss the post-2000 assessments and diagnoses of sinusitis in the VA and private treatment records. A clear rationale for all opinions is necessary-to include providing citations to pertinent factual findings-and a discussion of the medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the VA examiner should discuss why an opinion is not possible. 3. Upon completion of the above, readjudicate the Veteran's claim based on the entire record. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond before returning to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 2014). ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs