Citation Nr: 1640258 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 12-14 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of a pituitary tumor status post resection, to include as due to chemical exposures and/or asbestos exposure. 2. Entitlement to service connection for sleep apnea, to include as due to chemical exposures and/or asbestos exposure. 3. Entitlement to service connection for memory loss, to include as secondary to a pituitary tumor and as due to chemical exposures and/or asbestos exposure. 4. Entitlement to service connection for dyslexia, to include as secondary to a pituitary tumor and as due to chemical exposures and/or asbestos exposure. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for a sinus disorder, to include as due to chemical exposures and/or asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2014, the Board initially remanded this claim in order to provide the Veteran an opportunity to present testimony before a Veterans Law Judge. In August 2015, the Veteran presented testimony before the undersigned Veterans Law Judge in a Travel Board hearing. A transcript of this hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. All issues, including the reopened claim of entitlement to service connection for a respiratory disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a March 1995 rating decision, the RO denied service connection for a sinus condition. The Veteran did not perfect an appeal within the applicable time period and did not submit new and material evidence within one year. 2. The evidence received since the March 1995 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. CONCLUSIONS OF LAW 1. The March 1995 rating decision denying service connection for a chronic sinus condition is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2015). 2. The evidence received since the March 1995 rating decision is new and material as to the claim of service connection for a sinus disorder, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159 (b)(1) (2015). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (c) (2015). In light of the favorable disposition of the Veteran's claim to reopen, the Board finds that any deficiency in VA's notice or development actions is harmless error with respect to this issue. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2015). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (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 (2015). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a March 1995 rating decision, the RO denied service connection for a sinus disorder because the evidence did not show the incurrence or undue aggravation of a chronic sinus disorder during the Veteran's military service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the March 1995 decision includes the Veteran's service treatment records (STRs), private treatment reports, and the Veteran's claim and statements in support of the claim. The STRs show an assessment of rhinitis in November 1979 and no history of sinusitis in July 1980. 1982 STRs indicated pharyngitis and upper respiratory infection. In the service discharge report of medical history, the Veteran reported ear, nose, and throat trouble. In a February 1995 submission, the Veteran asserted he had sinus problems during and after service. The private medical records were related to the Veteran's back. Evidence submitted after the 1995 decision includes 1) the Veteran's claim; 2) VA treatment records; 3)service personnel records; and 4) lay statements contending the Veteran was exposed to hazardous materials during service, to include asbestos, methyl ethyl ketone, solvents, polyurethane paint, JP5, TCE, jet fuel, benzene, and perchlorate. VA treatment records indicate medication for seasonal allergies, a diagnosis of rhinitis in October 2010, and an assessment of chronic rhinitis versus vasomotor rhinitis that could be due to recent surgery, in September 2010. The Board finds that new and material evidence has been presented. The evidence, including the Veteran's statements of various chemical exposures, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of an in-service event. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination pursuant to asbestos-related claims procedure, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim of entitlement to service connection for an upper respiratory disorder is reopened. The Board notes that service personnel records were added to the claims file after the 1995 rating decision. But those SPRs do not show asbestos exposure and are thus not relevant; even if, however, the SPRs showed asbestos exposure, the Veteran did not assert that exposure until after the 1995 rating decision. Accordingly, the claim need not be reconsidered. See 38 C.F.R. § 3.156(c)(1), (2). ORDER New and material evidence having been received, the claim of entitlement to service connection for an upper respiratory disorder is reopened. REMAND Initially, regarding the Veteran's claim for service connection for a sinus disorder, the Board has broadened and reframed the sinusitis issue on appeal to entitlement to service connection for a sinus or respiratory disorder, to include sinusitis, allergies, and a respiratory disorder caused by exposure to hazardous material, to include asbestos. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Remand is warranted regarding each of the issues on appeal to obtain asbestos exposure-related development and to provide the Veteran with examinations. First additional development is required. In his July 2011 notice of disagreement, the Veteran contended his claimed disabilities were caused by hazardous chemical exposures during service, to include asbestos. The Veteran's military occupational specialty, System Organization Maintenance Technician (AMS) is classified as "probable" exposure to asbestos. See M 21-1 VA Adjudication Procedures Manual, Part IV, Subpart ii, Chapter 1, Section I.3.b. In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); M21-1 VA Adjudication Procedures Manual, Part IV, Subpart ii, Ch. 1. VA must determine whether military records demonstrate evidence of asbestos exposure during service; whether there was pre-service, post-service, occupational, or other asbestos exposure; and whether there is a relationship between asbestos exposure and the claimed disease. Second, examinations are required. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, there are either diagnoses or recurrent symptoms of a respiratory disorder, sleep apnea, memory loss, dyslexia, and the resection of a pituitary tumor. Asbestos exposure is conceded and the Veteran has alleged symptoms that began during or started shortly thereafter. Accordingly, examinations are warranted. In addition, regarding the Veteran's claim of entitlement to service connection for sleep apnea, the Veteran has provided testimony that he had in-service symptoms commonly associated with sleep apnea, such as excessive snoring. Further, his wife testified at the August 2015 Board hearing that the Veteran snored heavily during and since military service. Any medical opinion for the Veteran's sleep apnea should address these lay statements. Furthermore, the Veteran has contended his dyslexia and memory loss are secondarily related to his claimed pituitary tumor. Thus, any examination on remand should address whether these conditions are secondarily related to the pituitary tumor. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Complete the steps provided in the VA Adjudication Procedures Manual M21-1 for determining whether service connection for the Veteran's remanded claims is warranted on the basis of claimed asbestos exposure during service. The Board notes that asbestos exposure is conceded based on the Veteran's MOS Code of AMS, Aviation Structural Mechanic, during his military service. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any residuals of his pituitary tumor that was removed in July 2010. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must identify any residuals of the Veteran's pituitary tumor that was removed in July 2010. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the pituitary tumor had onset in, or is otherwise caused by, the Veteran's military service, to include any exposure to asbestos, methyl ethyl ketone, solvents, polyurethane paint, JP5, TCE, jet fuel, benzene, and perchlorate. The examiner must specifically address the Veteran's conceded exposure to asbestos during his military service. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any memory loss disorder. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must identify and provide a diagnosis for any memory loss disorder. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed memory loss disorder had onset in, or was otherwise caused by, the Veteran's military service, to include any exposure to chemicals, including asbestos, methyl ethyl ketone, solvents, polyurethane paint, JP5, TCE, jet fuel, benzene, and perchlorate. The examiner must specifically address the Veteran's conceded exposure to asbestos during his military service. Third, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed memory loss disorder is caused or aggravated by the residuals of a pituitary tumor. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any dyslexia. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must identify or determine whether there is a diagnosis of dyslexia. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that dyslexia had onset in, or was otherwise caused by, the Veteran's military service, to include any chemical exposures, including asbestos, methyl ethyl ketone, solvents, polyurethane paint, JP5, TCE, jet fuel, benzene, and perchlorate. The examiner must specifically address the Veteran's conceded exposure to asbestos during his military service. Third, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that dyslexia is caused or aggravated any residuals of a pituitary tumor. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his sleep apnea. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was had onset in, or was otherwise caused by, the Veteran's military service, to include any chemical exposure, including asbestos, methyl ethyl ketone, solvents, polyurethane paint, JP5, TCE, jet fuel, benzene, and perchlorate. The examiner must address the following the Veteran's conceded exposure to asbestos during his military service, and the competent lay evidence describing the Veteran's excessive snoring during and after his military service. 8. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any diagnosed sinus or respiratory disorder. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must identify or determine whether the Veteran has a sinus or respiratory disorder. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed sinus or respiratory disorder had onset in, or was otherwise caused by, the Veteran's military service, to include any exposure to chemicals, including asbestos, methyl ethyl ketone, solvents, polyurethane paint, JP5, TCE, jet fuel, benzene, and perchlorate. The examiner must specifically address the following: 1) the Veteran's conceded exposure to asbestos during his military service; 2) July 1985 STRs documenting treatment for a persistent cough; 3) diagnosis of rhinitis in November 1979; 4) the Veteran's report of a history of ear, nose, and throat troubles in his April 1986 report of medical history for his separation from military service; and 5) the Veteran's testimony and lay statements describing sinus symptoms since his military service. 9. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 10. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 11. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs