Citation Nr: 1800514 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-14 713 ) 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 claim for entitlement to service connection for a stomach condition. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for sinusitis. 3. Entitlement to service connection for a stomach condition. 4. Entitlement to service connection for sinusitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran had active service from January 1975 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issues of entitlement to service connection for a stomach condition and entitlement to service connection for sinusitis were denied in March 1995. The Veteran did not file a notice of disagreement, and that decision became final. In December 2010, the Veteran filed claims for entitlement to service connection for a stomach condition and entitlement to service connection for sinusitis The issue(s) of entitlement to service connection for a stomach condition and entitlement to service connection for sinusitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for a stomach condition and service connection for sinusitis were denied in a March 1995 rating decision in part on the basis that the conditions were not related to service and not related to the Veteran's service-connected bronchial asthma. 2. The Veteran did not file a notice of disagreement for the March 1995 rating decision, and that decision became final. 3. Evidence received since the March 1995 rating decision relates to unestablished facts necessary to substantiate the service connection claims for a stomach condition and sinusitis. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran's claim for service connection for a stomach condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence has been received, and the Veteran's claim for service connection for sinusitis is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Service connection for a stomach condition and service connection for sinusitis were initially denied in a March 1995 rating decision, as the available evidence did not link the Veteran's disabilities to his time in service or his service-connected bronchial asthma. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence received since the March 1995 rating decision includes a January 2011 lay statement from the Veteran indicating that his service-connected asthma and the medications he takes to treatment his asthma have caused or worsened his claimed stomach condition and sinusitis. Also added was medical treatise evidence, submitted in January 2011, showing a link between asthma and other conditions, including GERD and sinusitis. The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of a link between the lumbar spine disability and service; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claims is appropriate. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a stomach condition is reopened; to this extent only, the Veteran's appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for sinusitis is reopened; to this extent only, the Veteran's appeal is granted. REMAND The Veteran's lay statements and supporting evidence indicate that his disability may be related to his service-connected asthma. As such, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required in order to afford the Veteran a VA examination so as to determine the nature and etiology of his stomach condition and sinusitis. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his stomach condition. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's stomach condition had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine whether the Veteran's stomach condition was caused or aggravated by his service-connected bronchial asthma condition. In other words, the examiner is asked to provide an opinion as to both causation and aggravation. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his sinusitis The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's sinusitis had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine whether the Veteran's sinusitis was caused or aggravated by his service-connected bronchial asthma condition, to include any medications required for the condition. In other words, the examiner is asked to provide an opinion as to both causation and aggravation. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Following any additional indicated development, the RO should review the claims file and readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs