Citation Nr: 1801613 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-12 732 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim of service connection for a sinus disorder, to include sinusitis and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel INTRODUCTION The Veteran served in the U.S. Air Force from January 1969 to February 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Houston, Texas Regional Office (RO). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has recharacterized the issue on appeal to accurately reflect the Veteran's contention. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In January 2014, the Veteran was afforded a Decision Review Officer (DRO) hearing via telephone. In June 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In April 1969, VA denied service connection for an allergic reaction due to an administration of a yellow fever, typhus and influenza vaccine. The Veteran was informed in writing of the adverse determination and his appellate rights at that time. The Veteran did not subsequently submit a notice of disagreement (NOD). 2. The additional documentation submitted since the April 1969 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The April 1969 rating decision denying service connection for the residuals of an allergic reaction to an inoculation is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for the residuals of an allergic reaction to an inoculation has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veteran Claims Assistance Act of 2000, in part, describes VA's duties to notify and to assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Veteran's application to reopen a claim of service connection for a sinus disorder, to include sinusitis, has been considered with respect to VA's duties to notify and to assist. Given the favorable outcome in this decision, further explanation of how VA has fulfilled the duties to notify and to assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Analysis Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period 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). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In April 1969, VA denied service connection for an allergic reaction due to an administration of a yellow fever, typhus and influenza vaccine. The Veteran was informed in writing of the adverse decision and did not submit an NOD. The April 1969 rating decision was based on the Veteran's service treatment records (STRs) and statements. New and material evidence pertaining to the issue of service connection for the residuals of the in-service inoculation was not received by VA or constructively in its possession within one year of written notice to the Veteran of the April 1969 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since the April 1969 rating decision includes VA and private treatment records, statements from the Veteran, and Board hearing testimony. VA treatment records indicate that the Veteran was diagnosed with sinusitis in April 2011 and that the Veteran reported experiencing symptoms such as sinus drainage and nasal discharge between April 2011 and December 2013. In his August 2011 statement, the Veteran reported that a service medical examiner indicated that the Veteran had an allergic reaction to the service immunization because it contained the white portion of an egg. Apparently during his January 2014 DRO hearing, the Veteran stated that he received private treatment but was unable to provide names of physicians. In his June 2016 Board hearing, the Veteran testified that since receiving his service immunization, he has experienced sinus-related symptoms such as sinus drainage and nasal congestion. The Veteran also testified that Susan L. Andrew, M.D., a private provider, indicated that the service immunization caused his sinusitis. In a June 2016 letter, Dr. Andrew indicated that the Veteran was not allergic to eggs and is able to release all records pertaining to the Veteran. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, without examination of any other evidence of record, the newly-submitted evidence is of such significance that, when considered for the limited purpose of reopening the Veteran's claim, it raises a reasonable possibility of substantiating his claim for service connection when considered with the previous evidence of record. Specifically, Dr. Andrews' letter essentially questions the findings of service department medical care providers that the Veteran had an allergic reaction to the immunizations. Coupled with the Veteran's account of having had continuous nasal symptoms since military discharge, the evidence raises a reasonable possibility of substantiating the claim. ORDER The Veteran's application to reopen his claim for entitlement to service connection for a sinus disorder, to include sinusitis, is granted. REMAND The Board has determined that additional development is necessary prior to appellate review and the case is REMANDED for the following actions: 1. Advise the Veteran that he may submit any additional medical and non-medical evidence relating to his claimed sinus disorder that is not already in VA's possession. In particular, the Veteran should attempt to either provide the records of Susan L. Andrew, M.D., or provide the RO with an authorization to obtain Dr. Andrew's records. 2. After receipt of Dr. Andrew's records, or when it may be apparent that she will not provide the records or they are otherwise unobtainable, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of his sinus disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner must respond to the following inquiries: Does the Veteran have a current diagnosis of sinusitis or any other respiratory disorder? If the Veteran has a current diagnosis of sinusitis or any other respiratory disorder, did the Veteran's in-service immunization that administered a yellow fever, typhus and influenza vaccine cause the disorder? The examiner is advised that if the Veteran's account of having had continuous sinus symptoms since service is not factually or medically supportable, the examiner should so state and provide an explanation for such a conclusion. Although the examiner must review the VBMS file, his or her attention is drawn to the following: * In a February 1969 service clinical record, the Veteran was diagnosed with an egg allergy precluding administration of yellow fever, typhus and influenza vaccine. * In an April 2011 VA treatment record, the Veteran reported sinus drainage and was diagnosed with acute sinusitis. * In an August 2011 statement, the Veteran reported that the service medical examiner indicated that the Veteran had an allergic reaction to the service immunization because it contained the white portion of an egg. * In a January 2012 VA treatment record, the Veteran reported nasal congestion. * In an October 2013 VA treatment record, the Veteran reported experiencing sinus drainage for an indeterminate number of years. * In October 2013 and November 2013 VA treatment record, the Veteran was diagnosed with chronic sinusitis. * In a November 2013 VA treatment record, the Veteran complained of nasal stuffiness and sinus drainage but a physical examination indicated no sinus tenderness. * In a December 2013 VA treatment record, the physician indicated that a CT scan showed minimal mucosal thickening in the maxillary sinuses. 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).