Citation Nr: 1802336 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-33 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for a sinus condition. 2. Entitlement to service connection for a heart condition, to include as secondary to herbicide exposure and PCBs. 3. Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1961 to March 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The claim of service connection for a sinus condition is considered reopened; that reopened claim and the claims of service connection for a heart condition and a TBI are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT New evidence that tends to substantiate the claim of service connection for a sinus condition has been received since the final September 2002 rating decision that denied service connection for a sinus condition. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a sinus condition is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2017). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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) (2017). Historically, the Veteran filed his initial sinus condition claim in April 2002. The AOJ denied service connection for that claim in a September 2002 rating decision; stating that there was no evidence showing complaints of or treatment for a sinus condition. The Veteran was notified of that decision in a September 2002 letter. The Veteran did not submit a notice of disagreement with that decision or submit any additional evidence respecting that claim within one year of that notice letter. Consequently, as no timely notice of disagreement or new and material evidence was received during the appeal period following the September 2002 notice letter, the September 2002 rating decision became final. See 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.1103 (2017); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010) New and material evidence is therefore required to reopen the claim of service connection for a sinus condition. See 38 U.S.C. § 5108 (West 2014); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. Since the September 2002 rating decision, the Veteran submitted October 2014 VA treatment records which showed continued complaints of sinus pressure. Further, at his January 2015 TBI examination, the Veteran reported a diagnosis of chronic rhinitis, and recurrent symptoms of sinus pressure since service. Lastly, the Veteran submitted a February 2009 statement from his spouse, which stated she observed the Veteran's issues with his nasal passage, and that he has complained of sinus pressure since service. Based on the above evidence, the Board finds that new and material evidence which tends to substantiate the Veteran's claim of service connection for a sinus condition has been received in this case, and that claim is reopened. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). ORDER New and material evidence with respect to the claim of service connection for a sinus condition has been received; that claim is reopened, and to this extent, the appeal of that issue is granted. REMAND The Veteran contends that following his TDY in Port Moresby, New Guinea in 1964, his unit flew to Bien Ho, Vietnam in October 1964 and unloaded landing gear. He contends that when he was unloading the landing gear in Vietnam, he was exposed to Agent Orange, and this may have caused his current heart disability. Although there have been attempts to obtain the Veteran's flight manifests from the National Personnel Records Center (NPRC) and the Defense Finance and Accounting Service (DFAS), all attempts to obtain the flight manifests from the U.S. Army and Joint Services Records Research Center (JSRRC) and the Air Force Historical Research Agency (AFHRA) have not yet been exhausted. Thus, a remand is necessary in order for the AOJ to request the JSRRC to search records from the Veteran's assigned unit, to include flight logs, mission reports, or flight manifests, to verify the Veteran's reports of having visited Vietnam while he was stationed in Port Moresby, New Guinea in 1964. Moreover, if the AOJ verifies the Veteran's presence in Vietnam, then the Veteran's claim for heart disease should be considered under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 (2017), as the Veteran has a diagnosis of ischemic heart disease, which is a presumptive condition for a veteran exposed to herbicides. As for the Veteran's TBI claim, at the September 2017 Board hearing, the Veteran testified that his physician, Dr. B., from the Mountain Home VA Medical Center had provided treatment for his residuals of his head injury in service, and that his physician indicated the Veteran's loss of consciousness following that injury supported that he had a traumatic brain injury. Additionally, the Veteran's service treatment records indicate that following his head injury, he was treated at the Port Moresby Hospital in New Guinea. However, after a review of the claims file, the Board cannot locate these records. Thus, a remand is necessary in order to attempt to obtain these records and any other outstanding treatment records. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, the Veteran underwent a VA TBI examination in January 2015. The examiner indicated there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. Additionally, the examiner noted the Veteran's social interactions were occasionally inappropriate, with the Veteran reporting he was irritable and easily agitated. Further, the examiner noted the Veteran reported tinnitus, hearing impairment, insomnia, and occipital headaches daily with nocturnal sleep disturbance post head injury, and that the Veteran had a history of physical aggression, impulsiveness, moodiness, and a low threshold of agitation. Following the examination, the examiner opined that a TBI diagnosis was not warranted, and that his symptoms were due to another etiology. However, the Board cannot find the VA examiner's opinion to be adequate. While the examiner indicated the Veteran's symptoms were due to another etiology, he did not specify what the other etiology could be. Further, the examiner did not address the two lay statements in the record dated January 2009 which stated the Veteran suffered multiple head injuries and subsequently was unable to perform his duties for several weeks. Thus, a remand is necessary in order to afford the Veteran another VA examination in order to obtain an adequate examination and medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lastly, as for the sinus condition claim, the evidence shows the Veteran's separation examination noted mild sinusitis, and he was subsequently diagnosed with chronic rhinorrhea in 1977; additionally, October 2014 VA treatment records show continued complaints of sinus pressure, and at his January 2015 TBI examination, the Veteran reported a diagnosis of chronic rhinitis and recurrent symptoms of sinus pressure since service. In light of this evidence, the Board finds that the low threshold for obtaining a VA examination and medical opinion have been met in this case; a remand for such an examination to be accomplished is necessary at this time. See 38 U.S.C. § 5103A (d) (West 2014); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any and all relevant treatment records from the Knoxville or Mountain Home VA Medical Center, to specifically include any treatment records for a TBI with Dr. B., or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. After securing the necessary releases, attempt to obtain the 1964 outstanding private treatment records from the Port Moresby Hospital in New Guinea. If the records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Contact the JSRRC and/or the Air Force Historical Research Agency (AFHRA), or other appropriate repository of military records and request a search of information regarding any records from the Veteran's assigned units, to include flight logs, mission reports, and flight manifests to attempt to verify the Veteran's report that he traveled to Vietnam in October 1964. All responses should be documented in the record. The Veteran should be notified of the status of all requests for information. If the JSRRC and AFHRA determine that there is insufficient information to verify the Veteran's presence in Vietnam, a formal finding should be made. 4. If the AOJ can verify the Veteran's exposure to tactical herbicides in Vietnam, the Veteran's claim for heart disease should be considered under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 (2017), as the Veteran appears to have a diagnosis of ischemic heart disease, which is a presumptive condition for a veteran exposed to herbicides. 5. Schedule the Veteran for a VA examination to determine whether the Veteran has any current residuals of a traumatic brain injury (TBI). The Veteran contends he has residuals of a TBI from an incident in the military where he was hit in the head. Following review of the claims file and examination and testing, the examiner should state whether the Veteran has any residuals of a TBI. The examiner should specifically address whether the symptoms claimed by the Veteran are residuals of a TBI. In addressing this question, the examiner should discuss the Veteran's lay statements regarding symptoms he has experienced relating to his claimed TBI, as well as the January 2009 lay statements in the record. If TBI residuals are identified, the examiner should opine as to whether any residuals of a TBI at least as likely as not (50 percent or greater probability) began in or are otherwise the result of military service, to include the head injury the Veteran sustained in service when he was hit by a 2x4. If the examiner determines the Veteran does not have a TBI or any residuals of a TBI, or determines that the claimed symptoms are due to something other than a TBI, the rationale for such a finding must be explained. All opinions must be accompanied by a clear rationale. 6. Schedule the Veteran for a VA examination to determine whether any current sinus condition is related to his military service. Following review of the claims file and examination of the Veteran, the examiner should identify all current sinus disorders. Then, for each sinus condition found, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that it began in or is otherwise the result of military service, to include the head injury the Veteran sustained in service when he was hit by a 2x4 and his subsequent diagnosis of mild sinusitis in service. The examiner should specifically address the Veteran's lay statements regarding onset of symptomatology and continuity of symptomatology since military service. All opinions must be accompanied by a clear rationale. 7. Following any 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs