Citation Nr: 18143750 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 18-36 587 DATE: October 22, 2018 ORDER The petition to reopen the claim for entitlement to service connection for sinusitis based on the submission of new and material evidence is reopened, and to that limited extent the appeal is granted. The petition to reopen the claim for entitlement to service connection for sleep apnea based on the submission of new and material evidence is reopened, and to that limited extent the appeal is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as due to undiagnosed illness is remanded. Entitlement to service connection for migraine headaches, to include as due to undiagnosed illness is remanded. Entitlement to service connection for sinusitis, to include as due to undiagnosed illness is remanded. Entitlement to service connection for sleep apnea, to include as due to undiagnosed illness is remanded. FINDINGS OF FACT 1. In an unappealed February 2014 decision, the RO denied service connection for sinusitis. The Veteran was notified of the decision and of his appellate rights, but he did not submit a notice of disagreement or submit new and material evidence within one year of the issuance of that decision. 2. The evidence received since the February 2014 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for sinusitis. 3. In an unappealed April 2015 decision, the RO denied service connection for sleep apnea. The Veteran was notified of the decision and of his appellate rights, but he did not submit a notice of disagreement or submit new and material evidence within one year of the issuance of that decision. 4. The evidence received since the April 2015 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for sleep apnea. CONCLUSIONS OF LAW 1. The February 2014 rating decision, which denied the claim for entitlement to service connection for sinusitis, is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. 2. The evidence received subsequent to the February 2014 rating decision is new and material, and the issue of service connection for heart disease is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The April 2015 rating decision, which denied the claim for entitlement to service connection for sleep apnea, is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. 4. The evidence received subsequent to the April 2015 rating decision is new and material, and the issue of service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1984 to November 1989 and from October 1990 to August 1991 to include service in Southwest Asia during the Persian Gulf era. Petition to Reopen 1. The petition to reopen the claim for entitlement to service connection for sinusitis In an unappealed February 2014 decision, the RO denied service connection for sinusitis because the Veteran’s records did not support that the Veteran had a diagnosis of sinusitis. The Veteran did not timely disagree with that decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. In March 2016, the RO received a request from the Veteran which it considered as a claim to reopen the issue of entitlement to service connection for sinusitis, which it denied reopening based on lack of new and material evidence in a June 2016 decision. After additional evidence was submitted, the RO confirmed their denial of the claim in a November 2016 rating decision. The Veteran submitted a timely notice of disagreement (NOD) and VA Form 9. In reviewing the June 2016 and November 2016 decisions, the Board has determined that a new and material evidence analysis is proper for the sinusitis claim on appeal, as it was clearly adjudicated by the February 2014 decision. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA’s analysis must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries,” or whether it is evidence tending to substantiate an element of the previously adjudicated matter). Regardless of the RO’s actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the sinusitis issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. 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 question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” 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.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final February 2014 rating decision. Specifically, the Veteran’s claim was previously denied for a lack of evidence showing a diagnosis of sinusitis. The Veteran has since submitted evidence showing complaints of sinus related symptoms. This new evidence was neither cumulative nor redundant, as the assessment of “scant sinus disease” by the April 2015 MRI reviewer relate to the reason for which the claim for sinusitis was originally denied in February 2014. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the additional medical evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for sinusitis. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the sinusitis claim, i.e. whether the Veteran has the necessary medical condition, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previously denied sinusitis claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The petition to reopen the claim for entitlement to service connection for sleep apnea In an unappealed April 2015 decision, the RO denied service connection for sleep apnea, claimed as due to undiagnosed illness, because the sleep apnea had a known diagnosis, precluding service connection under 38 U.S.C. § 3.317, and because the sleep apnea was not incurred in or a result of injury in service. The Veteran did not timely disagree with that decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. In June 2016, the RO received a request from the Veteran which it considered as a claim to reopen the issue of entitlement to service connection for sleep apnea, which it denied reopening based on lack of new and material evidence in a November 2016 decision. The Veteran submitted a timely notice of disagreement (NOD) and VA Form 9. In reviewing the November 2016 decision, the Board has determined that a new and material evidence analysis is proper for the sleep apnea claim on appeal, as it was clearly adjudicated by the April 2015 decision. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA’s analysis must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries,” or whether it is evidence tending to substantiate an element of the previously adjudicated matter). The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). In the present case, some of the Veteran’s STRs have been unavailable to the examiners. A new request for further development for the missing STRs was initiated, but it is unclear if the request was completed. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final April 2015 rating decision. Specifically, the Veteran’s claim was previously denied for lack of nexus with active service and for having a clear diagnosis and thus, not being an undiagnosed illness. The Veteran has since submitted a statement that he has had sleep apnea symptoms since deployment in active service. This new evidence was neither cumulative nor redundant, as the possible development of sleep apnea during active service relates to the reason for which the claim was originally denied in April 2015. And, since the Veteran’s STRs are incomplete, the lay statement is particularly relevant. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that the Veteran’s attorney has argued in his addendum to the Form VA-9 that the Veteran essentially has an undiagnosed illness or medically unexplained chronic multisymptom illness whose symptoms are the development of sleep apnea, sinus issues, erectile dysfunction, and headaches. The Board finds that the additional evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for sleep apnea. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the sleep apnea claim, i.e. whether the Veteran developed the condition in active service, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previously denied sleep apnea claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, to include as due to undiagnosed illness is remanded. The Board notes that the Veteran’s attorney has argued in his addendum to the Form VA-9 that the Veteran essentially has an undiagnosed illness or medically unexplained chronic multisymptom illness whose symptoms are the development of sleep apnea, sinus issues, erectile dysfunction, and headaches. Additionally, some of the Veteran’s STRs are missing. It appears that a request to attempt to locate these missing records again was made in September 2016. It does not appear that the results of those searches were mailed to the Veteran in a notice letter. The Veteran has also specifically noted treatment at Tripler Base in Hawaii when he was hospitalized in September 1989 with symptoms that included fatigue and headaches. Development should request these records directly from Tripler Base. The Board also must consider direct service connection for the Veteran’s erectile dysfunction claim, and the VA examination provided thus far has referenced undiagnosed illness but not a specific VA examination for erectile dysfunction. The medical records show that the Veteran has a reported history of erectile dysfunction and has been taking medication for that condition. The Veteran should be provided a VA examination for erectile dysfunction. 2. Entitlement to service connection for migraine headaches, to include as due to undiagnosed illness is remanded. Some of the Veteran’s STRs are missing. It appears that a request to attempt to locate these missing records again was made in September 2016. It does not appear that the results of those searches were mailed to the Veteran in a notice letter. The Veteran has also specifically noted treatment at Tripler Base in Hawaii when he was hospitalized in September 1989 with symptoms that included fatigue and headaches. Development should request these records directly from Tripler Base. An addendum opinion should be provided that includes reference to any missing STRs, the Veteran’s October 2017 lay statement, and any additional medical evidence discovered with additional development. In addition, the Veteran’s attorney has argued in his addendum to the Form VA-9 that the Veteran essentially has an undiagnosed illness or medically unexplained chronic multisymptom illness whose symptoms are the development of sleep apnea, sinus issues, erectile dysfunction, and headaches. The addendum opinion should address this contention. 3. Entitlement to service connection for sinusitis, to include as due to undiagnosed illness is remanded. Some of the Veteran’s STRs are missing. It appears that a request to attempt to locate these missing records again was made in September 2016. It does not appear that the results of those searches were mailed to the Veteran in a notice letter. The Veteran has also specifically noted treatment at Tripler Base in Hawaii when he was hospitalized in September 1989 with symptoms that included fatigue and headaches. Development should request these records directly from Tripler Base. An addendum opinion should be provided that includes reference to any missing STRs, the Veteran’s October 2017 lay statement, and any additional medical evidence discovered with additional development. In addition, the Veteran’s attorney has argued in his addendum to the Form VA-9 that the Veteran essentially has an undiagnosed illness or medically unexplained chronic multisymptom illness whose symptoms are the development of sleep apnea, sinus issues, erectile dysfunction, and headaches. The addendum opinion should address this contention.   4. Entitlement to service connection for sleep apnea, to include as due to undiagnosed illness is remanded. Some of the Veteran’s STRs are missing. It appears that a request to attempt to locate these missing records again was made in September 2016. It does not appear that the results of those searches were mailed to the Veteran in a notice letter. The Veteran has also specifically noted treatment at Tripler Base in Hawaii when he was hospitalized in September 1989 with symptoms that included fatigue and headaches. Development should request these records directly from Tripler Base. An addendum opinion should be provided that includes reference to any missing STRs, the Veteran’s October 2017 lay statement, and any additional medical evidence discovered with additional development. In addition, the Veteran’s attorney has argued in his addendum to the Form VA-9 that the Veteran essentially has an undiagnosed illness or medically unexplained chronic multisymptom illness whose symptoms are the development of sleep apnea, sinus issues, erectile dysfunction, and headaches. The addendum opinion should address this contention. The matters are REMANDED for the following action: 1. Undertake appropriate action to attempt to obtain copies of the Veteran’s missing service treatment records. Follow the procedures set forth in 38 C.F.R. § 3.159 with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. The RO should create a negative finding memorandum if efforts to locate the missing STRs are exhausted. The RO should send the Veteran a notice letter with the results of the search that informs the Veteran if STRs cannot be located and include alternate sources for missing STRs. 2. With any necessary authorization from the Veteran, request medical records directly from Tripler Army Base in Hawaii, including but not limited to, dates in and around September 1989. 3. After the above development has been completed, schedule the Veteran for a VA examination for erectile dysfunction. The examiner should respond to the following inquiries: (a.) Does the Veteran have a current diagnosis of erectile dysfunction that is at least as likely as not (50% probability) incurred in active service? (b.) Does the Veteran have a current diagnosis of erectile dysfunction that itself is a symptom of an undiagnosed illness or a chronic medically unexplained chronic multisymptom illness? 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s sleep apnea. The examiner should respond to the following inquiries: (a.) whether the Veteran’s sleep apnea is at least as likely as not (50% probability) incurred during active service. Please reference the Veteran’s lay statement, e.g. dated October 2017, that he developed symptoms during active service. Please make note if any of the Veteran’s service treatment records are not available for review. (b.) Does the Veteran have a diagnosis of sleep apnea that is itself a symptom of an undiagnosed illness or a chronic medically unexplained chronic multisymptom illness? 5. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s claimed sinus condition. The examiner should respond to the following inquiries: (a.) whether the Veteran has a sinus condition diagnosis; (b.) If the Veteran has a diagnosis of a sinus condition, is it at least as likely as not (50% probability) incurred during active service. Please make note if any of the Veteran’s service treatment records are not available for review. (c.) Does the Veteran have a diagnosis of sinus condition that is itself a symptom of an undiagnosed illness or a chronic medically unexplained chronic multisymptom illness? 6. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s claimed migraine headache condition. The examiner should respond to the following inquiries: (a.) Whether the Veteran has a current migraine headache diagnosis; (b.) If the Veteran has a diagnosis of a migraine headache condition, is it at least as likely as not (50% probability) incurred during active service. Please reference the Veteran’s lay statement, e.g. dated October 2017, that he developed symptoms during active service. Please make note if any of the Veteran’s service treatment records are not available for review. (c.) Does the Veteran have a diagnosis of migraine headache condition that is itself a symptom of an undiagnosed illness or a chronic medically unexplained chronic multisymptom illness? DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)