Citation Nr: 18142089 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 16-01 268 DATE: October 15, 2018 ORDER The claim for service connection for sinusitis is reopened. Service connection for residuals of acute respiratory distress syndrome (ARDS), diagnosed as chronic sinusitis with headaches, is granted. FINDINGS OF FACT 1. In an August 2008 rating decision, the RO denied service connection for sinusitis. The Veteran did not appeal. 2. Evidence received since the August 2008 rating decision is new and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran’s chronic sinusitis with headaches is a result of ARDS in service. CONCLUSIONS OF LAW 1. The August 2008 rating decision that denied service connection for sinusitis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Evidence received since the August 2008 rating decision is new and material for purposes of reopening the claim for service connection for sinusitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for residuals of ARDS, diagnosed as chronic sinusitis with headaches, are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1989 to August 1989 and from May 1992 to February 1997 with approximately seven additional months of unverified active duty service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision denying service connection for residuals of ARDS. The Board notes that a June 2018 rating decision also denied reopening of the claim for service connection for sinusitis. However, the scope of the Veteran’s claim for service connection for residuals of ARDS includes any disability that reasonably may be encompassed by his description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Board finds that the Veteran’s claim for service connection for residuals of ARDS and for sinusitis are based on the same facts and circumstances and are, in fact, one claim. The RO has acknowledged the same. See Deferred Rating Decision, dated August 3, 2018. Whether new and material evidence has been received sufficient to reopen the claim for service connection for sinusitis. For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim based on all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, to establish whether new and material evidence has been received, the credibility of such evidence is to be presumed unless “patently incredible.” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for sinusitis was originally denied in a July 1998 rating decision. The RO denied reopening of the claim in an August 2008 rating decision. The Veteran did not appeal the decision. Thus, the August 2008 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Evidence received since the issuance of the August 2008 rating decision includes a January 2018 etiology opinion from an independent medical expert, VA treatment records and lay statements from the Veteran. The evidence received since the August 2008 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim of service connection. In this regard, the claim for service connection for sinusitis was previously denied as the record did not establish that the Veteran’s sinusitis was related to service. Based on the foregoing reason, new and material evidence has been received and the petition to reopen the claim is granted. Entitlement to service connection for residuals of ARDS, including sinusitis In July 2014, the Veteran submitted a claim for service connection for residuals of ARDS. His service treatment records document treatment for ARDS and sinusitis in service. Private treatment records document current treatment for sinus and upper respiratory issues. Thus, the first and second elements of service connection are met. In January 2018, an independent medical examiner determined that it is more likely than not that the Veteran’s sinusitis is related to service. See Military Personnel Record, dated April 27, 2018. In forming his opinion, the examiner reviewed the Veteran’s in-service and post-service medical records, and noted his post-service treatment for sinusitis and upper respiratory infections. The examiner also noted that ever since the Veteran was treated for ARDS in service he had been using over-the-counter medications to treat his chronic sinusitis with headaches. The examiner stated that, “the enclosed medical records clearly show that the Veteran suffered from sinusitis during his service and continues to suffer from sinusitis.” The Board finds this opinion highly probative and concludes that the third element of service connection is satisfied. As such, service connection for chronic sinusitis with headaches is warranted. In reaching this conclusion, the Board notes a May 2018 VA examiner’s opinion concluding that the Veteran’s sinusitis was not incurred in or caused by sinusitis in service. However, no probative weight is afforded this opinion. Central to the examiner’s rationale was a purported lack of post-service medical care for sinusitis. The examiner’s opinion did not account for the Veteran’s lay statements concerning his post-service history of sinus-related symptoms. See Reonal v. Brown, 5 Vet. App. 458 (1993) (noting an opinion based on a faulty factual premise is not probative). While the Veteran has also been treated for upper respiratory infections or common colds, to the extent that these are a separate diagnosis from his chronic sinusitis with headaches, there is no competent lay or medical evidence of record suggesting that these are a residual of the Veteran’s in-service ARDS. An October 2014 VA examiner concluded that the Veteran had no current evidence of ARDS and that his service treatment records did not support that he had an acute lung injury in service causing a chronically disabling lung condition. Further, the January 2018 independent medical examiner did not relate any separately diagnosed upper respiratory disability, other than chronic sinusitis, with any incident of service. And the Veteran, as a lay person in the medical field, does not have the medical expertise to provide a competent opinion on the issue, as this is not a relationship that can be readily observed through the senses alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). (Continued on the next page)   In sum, the probative evidence of record supports the Veteran’s claim for service connection for residuals of ARDS, diagnosed as chronic sinusitis with headaches. Accordingly, service connection for chronic sinusitis with headaches is granted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel