Citation Nr: 1800398	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  14-01 917	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Prem, Counsel

INTRODUCTION

The Veteran served on active duty from July 1980 to July 2002.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board remanded this matter in February 2015 for a Board hearing.  

The Veteran presented testimony at a Board hearing in March 2017.  A transcript of the hearing is associated with the Veteran's claims folder. 

The issue of entitlement to service connection for sinusitis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  In September 2002, the RO denied the Veteran's service connection claim for sinusitis.  The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance

2.  Certain evidence received since the September 2002 decision is neither cumulative nor redundant of the evidence of record at the time of the September 2002 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection.


CONCLUSIONS OF LAW

1.  The September 2002 RO rating decision, which denied the Veteran's service connection claim for sinusitis, is final.  38 U.S.C. § 7105 (2012).

2.  Evidence received since the September 2002 RO rating decision is new and material; accordingly, the claim for service connection for sinusitis is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.  Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case.  38 C.F.R. § 19.26.  A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.  38 C.F.R. § 20.302(b).  Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") provides as follows:   

New evidence means existing evidence not previously submitted to agency decisionmakers.  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) (2017)

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999).  
In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim.

In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible.  The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible.  
 
If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

The Veteran's claim for service connection for sinusitis was denied by way of a September 2002 RO decision.  The Veteran failed to file a timely notice of disagreement with this issue, and no new and material evidence was received within the appeal period after the decision.  As such, the rating decision became final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156(b) (2017) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim).  

The evidence on record at the time of the September 2002 denial consisted almost entirely of the service treatment records, and a March 2002 examination.  The service treatment records showed that the Veteran was treated intermittently for a sinus disability between January 1990 and January 1992.  The March 2002 
VA examination report reflects normal findings of the sinuses and nares.  The examination report states that there was no evidence of any infection, either chronic or acute.  

The basis for the denial in September 2002 was that there was no diagnosis of a permanent residual or chronic disability, and no current disability was found on the 2002 examination.  The RO acknowledged the in-service treatment of a sinus condition as shown by the service treatment records.    

Evidence received since the September 2002 rating decision includes post-service treatment records that reflect diagnoses of acute and chronic sinusitis.  For example, a July 2010 VA treatment records reflects chronic sinusitis in a list of current medical problems.  The VA treatment records also reflect prescriptions for Loratadine (in June 2005) and Claritin for the Veteran's sinuses.  An April 2017 treatment report included an assessment of "suspected chronic sinusitis."    

The Board notes that the Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold to reopen and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim.  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim.  It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA.  Shade v. Shinseki, 24 Vet. App. 110, 117-20 (2010).  In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.

The Board finds that the post-service treatment records constitute new and material evidence.  As noted above, the RO previously denied the claim because there was no finding of a current disability.  The new evidence shows that the Veteran has been diagnosed with chronic sinusitis and that he has been prescribed medications for his symptoms.  This constitutes an unestablished fact necessary to substantiate the claim.  As new and material evidence has been received to reopen the claim, the claim for entitlement to service connection is reopened.   


ORDER

As new and material evidence has been received, the petition to reopen the claim for service connection for sinusitis is granted.  


REMAND

As noted above, the post-service treatment records include indications that the Veteran has chronic sinusitis.  Moreover, those same treatment records reflect repeated treatment (in the form of loratadine and Claritin) for sinus-related symptoms.  

The Board acknowledges that the Veteran underwent an October 2013 VA examination that revealed normal findings.  However, the Board recognizes that the Veteran's disability may be chronic, and yet include periods of asymptomatology.  At the 2017 hearing, it was contended that the Veteran was being treated and his sinusitis was not acting up.  Additionally, in a December 2014 brief, the Veteran's representative argued for an addendum to the October 2013 examination to elaborate on whether or not the Veteran has allergic rhinitis.  A June 2010 and October 2013 VA examination reports reflect diagnoses of allergic rhinitis.  In light of the foregoing, the Board finds that a new VA examination and opinion is warranted to determine the nature and etiology of the Veteran's sinus disability.  The examiner should acknowledge the findings in the service treatment records and in the post-service treatment records.   

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for an appropriate VA examination for the purpose of determining the nature and etiology of the Veteran's sinus disability.  The examiner is to review the claims file to become familiar with the Veteran's pertinent medical history.  Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, 
the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any sinus disability (sinusitis, rhinitis, etc.) began during or is causally related to service.

The examiner should address the findings in the service treatment records dated January 1990, February 1990, March 1990, October 1990, February 1991, March 1991, and January 1992 (see December 2014 VA Form 646).  

The examiner should also acknowledge the post-service assessments of sinusitis and rhinitis.  

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion.  

If the examination results in normal findings, the examiner should render an opinion based on the findings in the treatment records.  

If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).

2.  After completion of the above, readjudicate the issue and determine if the benefit sought can be granted.  If the issue remains denied, then furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review.  

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. §§ 5109B, 7112 (2012).




______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs