Citation Nr: 18145946 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-29 727 DATE: October 30, 2018 ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for sinusitis is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for heart disease is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. In a final decision issued in August 2005, the Board denied service connection for a respiratory disability, to include sinusitis, and heart disease. 2. Evidence associated with the record since the final August 2005 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating a claim of entitlement to service connection for sinusitis. 3. Evidence associated with the record since the final August 2005 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating a claim of entitlement to service connection for heart disease. 4. GERD is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. 5. OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The August 2005 Board decision that denied service connection for a respiratory disability, to include sinusitis, and heart disease is final. 38 U.S.C. § 7104(b) (West 2002) [(2012)]; 38 C.F.R. § 20.1100 (2005) [(2017)]. 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for sinusitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received to reopen a claim of entitlement to service connection for heart disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1951 to January 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his August 2015 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge; however, in September 2015, his representative withdrew the request for a hearing. 38 C.F.R. §§ 20.704(e). In August 2017, the Board remanded the case for additional development and it now returns for further appellate review. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for sinusitis. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for heart disease. By way of background, the Veteran filed his original claim for service connection for a respiratory disability in June 1981. In a July 1981 rating decision, the Agency of Original Jurisdiction (AOJ) considered the Veteran’s service treatment records and post-service treatment records, and denied service connection for such disability, characterized as bronchitis. In this regard, the AOJ found that, while the Veteran’s service treatment records reflect treatment for a respiratory disability, to include bronchitis in March 1953, no chronic disability or residuals thereof were present at the time of the Veteran’s separation from service. Thereafter, in an April 1994 rating decision, the AOJ found that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for bronchitis and denied service connection for sinusitis. At such time, the AOJ considered the Veteran’s service treatment records, a certificate showing that he completed a course of instruction in chemical, biological, and radiological defense in February 1953, and post-service private and VA treatment records. The AOJ noted that the Veteran contended that he was exposed to chlorine gas in March 1953 during training at Fort Sherman, Panama Canal Zone, and at Fort Amadora, California, and developed bronchitis and sinusitis as a result of such exposure. The AOJ noted that the record reflected current diagnoses of sinusitis and bronchitis; however, such failed to show that such disorders were related to his military service. In a May 2002 rating decision, the AOJ denied service connection for a respiratory disability and heart disease, and the Veteran appealed such denial to the Board. In an October 2004 decision, the Board reopened a claim for service connection for a respiratory disability, to include sinusitis, and remanded such, as well as the claim for service connection for heart disease, for further development. In an August 2005 decision, the Board denied such claims. The evidence of record at the time of the August 2005 Board decision included the Veteran’s service treatment records, clinical records from various VA and private medical providers dating from August 1954, VA examinations and medical opinions dated in March and December 2004, a February 2001 private medical opinion, and a treatise from the Department of the Army detailing the effects of exposure to chlorine gas. The evidence of record also included statements from the Veteran reporting that he was treated for sinusitis and bronchitis during service and was exposed to chlorine gas during chemical, biological, and radiological training in Panama in February 1953. In its decision, the Board found that the weight of the evidence was against a finding that the Veteran had a chronic respiratory disability during service or that any current respiratory disability was otherwise related to active service. The Board noted that service treatment records documented treatment for sinusitis in September 1951 and bronchitis in March 1953, but found that these conditions were acute and not chronic. Similarly, while the Veteran reported a history of sinusitis during the January 1954 separation examination, physical examination of his sinuses, lungs, and chest, as well as X-rays, were normal at that time. The Board therefore concluded that the Veteran did not have a chronic respiratory disability during service. The August 2005 Board decision also considered the post-service evidence and concluded that it did not establish a respiratory disability was etiologically related to any incident of active service, including the Veteran’s reported exposure to chlorine gas. The Board found that the earliest post-service evidence of a respiratory condition was dated in May 1959, at least five years after the Veteran’s discharge. The Board also found that the February 2001 private medical opinion in support of service connection was outweighed by the more probative March 2004 and December 2004 VA medical opinions, as well as a treatise from the Department of the Army indicating there was little or no long-term sequelae from a single incident of exposure to chlorine gas. Thus, the Board acknowledged the Veteran was treated for acute episodes of sinusitis and bronchitis during service and conceded his possible exposure to chlorine gas, but found the weight of the evidence was against service connection for the claimed respiratory disabilities. Further, as pertinent to the Veteran’s claim for service connection for heart disease, the Board found that there was no evidence that he had heart disease during service, or within one year of separation from service. In fact, the Board noted that the Veteran had not alleged service connection on a direct basis. The Board further found that there was no evidence that the Veteran’s heart disease was related to his only service-connected disability of residuals of a right knee injury. Rather, the Veteran had claimed that his heart disease was secondary to his respiratory disability; however, as service connection for such had been denied in the same decision, service connection for such disorder as secondary to a respiratory disability was likewise not warranted. In August 2005, the Veteran was advised of the Board’s decision and his appellate rights, and appealed the denial to the United States Court of Appeal for Veterans Claims (Court). However, the Court affirmed the Board’s decision in September 2007. Furthermore, no relevant service department records have since been associated with the record. Therefore, the August 2005 Board decision is final. 38 U.S.C. § 7104(b) (West 2002) [2012]; 38 C.F.R. § 20.1100 (2005) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, 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 means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In December 2014, the Veteran filed his current application to reopen claims for service connection for a respiratory disability and heart disease. The evidence received since the August 2005 Board decision includes additional records of VA and private treatment for respiratory complaints and heart disease. The record also contains statements from the Veteran contending his sinusitis began during active duty service and/or was the result of exposure to toxic substances during service, specifically chlorine gas, and his heart disease is secondary to such disorder. Additionally, in his October 2018 Written Brief Presentation, the Veteran’s representative included citation to articles discussing the use of chlorine gas in gas chamber training. Also of record is a February 2015 VA examination in which the examiner found that the Veteran had a documented history of chronic sinusitis beginning in the mid to late 1990’s, but could not locate evidence of treatment for chronic sinusitis during military service. In this regard, she noted that X-rays from September 1951 showed no evidence of sinusitis, but observed that the Veteran indicated he had sinusitis in January 1954. Further, post-service treatment records reflected treatment for sinusitis in 1960, but chronic sinusitis was not diagnosed until the mid to late 1990’s. Further, in connection with the August 2017 remand, an addendum opinion addressing the etiology of the Veteran’s sinusitis was obtained in October 2017. In this regard, the examiner opined that the Veteran’s sinusitis was less likely than not incurred in or caused by any instance of his military service. In support of such opinion, the examiner noted a complete review of the Veteran’s service treatment records and post-service treatment records, as well as consideration of pertinent medical literature pertaining to sinusitis. She specifically considered the Veteran’s treatment for sinusitis in September 1951 as well as his report of sinusitis in 1954; however, the Veteran’s X-rays in 1951 revealed that his sinuses were normal, and his physical examination was normal in 1954. In this regard, the examiner indicated that a subjective report alone is insufficient to establish a diagnosis of sinusitis. She further found that there was no objective evidence of intercurrent complaints, evaluations, or treatments of a sinus condition from 1954 to 1959, at which time a sinus film showed some evidence of sinusitis and he was thereafter treated for sinusitis in 1960. The Board finds that the evidence received since the August 2005 Board decision is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for sinusitis and heart disease. In this regard, while the new VA and private treatment records document the progressive nature and treatment of the Veteran’s sinusitis and heart disease, they do not provide any evidence of a link between the diagnosed conditions and any incident of active duty service. Furthermore, none of his treatment providers offered a medical opinion in support of the claims or otherwise commented on a service-related etiology for the Veteran’s disabilities. In fact, the February 2015 and October 2017 VA examiners concluded that the Veteran’s sinusitis was unrelated to his military service. Furthermore, the Veteran’s statements pertaining to the etiology of his sinusitis and heart disease are cumulative and redundant of those previously considered by the Board in August 2005. Also, while the Veteran’s representative has cited to additional articles in support of chlorine gas use in training exercises, such fact was previously of record and considered by the Board in August 2005. Therefore, new and material evidence has not been received to reopen claims of entitlement to service connection for sinusitis or heart disease. Thus, the Veteran’s appeal as to such matters must be denied. 3. Entitlement to service connection for GERD, to include as secondary to a respiratory disability and/or sinusitis. 4. Entitlement to service connection for OSA. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the record reflects current diagnoses of GERD and OSA. However, the Veteran’s service treatment records are negative for any complaints, treatment, or diagnoses referable to such disorders. Furthermore, there is no competent evidence that such are related to any instance of the Veteran’s military service or, in the case, of his GERD, a service-connected disability. In this regard, the Board notes that the Veteran has not been provided with a VA medical examination and/or opinion regarding his claims for service connection for GERD or OSA; however, the Board finds that such is not necessary in the instant case. Specifically, there no indication that his GERD or OSA is related to any aspect of his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, the Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claims. Furthermore, to the extent that the Veteran has generally alleged that his GERD and OSA are related to his military service, he is not competent to offer an opinion on such matters since he does not possess the requisite medical knowledge to do so. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology his GERD and/or OSA, and, consequently, his opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, while the Veteran has alleged that his GERD is related to a respiratory disability and/or sinusitis, and the medical evidence of record reflects that such have aggravated his GERD, he is not service-connected for a respiratory disability or sinusitis. Consequently, as service connection is not in effect for the disability claimed by the Veteran to have proximally caused his GERD, service connection on a secondary basis is not available under the law. Therefore, service connection for GERD and OSA is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for entitlement to service connection for GERD and OSA. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 8 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson