Citation Nr: 18148983 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-03 855A DATE: November 8, 2018 ORDER The petition to reopen the claim of service connection for allergic rhinitis or sinusitis based on new and material evidence is granted. Service connection for tonsillectomy is denied. REMANDED Service connection for allergic rhinitis or sinusitis is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the February 2010 denial of his petition to reopen the claim of service connection for rhinitis and new and material evidence was not received within one year of that decision. He has since submitted new evidence pertinent to his claim. 2. New service department records relevant to the claim of service connection for tonsillectomy were received since the prior denial of that claim. 3. The weight of the evidence is against finding any current residual disability from the Veteran’s tonsillectomy in service. CONCLUSIONS OF LAW 1. The ¬¬February 2010 RO denial of the petition to reopen the claim for service connection for rhinitis became final, and new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156 (2017). 2. The criteria for service connection for tonsillectomy have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection 1. Petition to Reopen a Claim for Service Connection for Rhinitis Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Regional Office (RO) originally issued a rating decision denying the Veteran’s claim of service connection for rhinitis with nasal obstruction and enlarged turbinates in December 1986. The basis for the denial was that the evidence failed to show that service permanently aggravated the Veteran’s pre-existing rhinitis. The Veteran did not appeal. In October 1994, the RO denied the Veteran’s request to reopen his claim. The Veteran filed a notice of disagreement to this October 1994 rating decision and a Statement of the Case (SOC) was issued in March 1995. The Veteran did not perfect his appeal. He again requested to reopen his claim, and the RO denied his petition to reopen in February 2010. The Veteran was informed of his right to appeal but did not do so. Furthermore, new and material evidence was not received within one year of the rating decisions. Therefore, the rating decisions became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.202. At the time of the February 2010 denial, the evidence included service treatment records, statements from the Veteran, private treatment records, and a VA examination. The Veteran reported a history of headaches and seasonal hay fever during his entrance examination but no disability was found on examination. Private treatment records from the 1980s showed treatment for severe headache and nasal congestion with the reported onset of 1976. In August 1983, the Veteran was diagnosed with allergic sinusitis. During the September 1986 VA examination, the Veteran reported trouble breathing through his nose and seasonal congestion; he was observed with soft tissue density in the base of the right maxillary sinus. The examiner diagnosed rhinitis with nasal obstruction and enlarged turbinates. Since the February 2010 denial, the record includes VA treatment records and statements from the Veteran. In his statements, the Veteran asserted that his rhinitis was due to contaminated water while he served at Camp Lejeune and alternatively that his sinusitis and rhinitis difficulties began in Spring of 1978 when he was exposed to a gas bomb and gas cloud with no protective gear. In the context of reopening, evidence generally presumed to be credible. Justus, 3 Vet. App. at 513. Therefore, to the extent that this evidence suggests an in-service etiology, the Board finds that the reported exposure to gas and contaminated water are sufficient to meet the low threshold for reopening a claim based on new and material evidence. See Shade, 24 Vet. App. at 118. 2. Petition to Reopen Claim for Service connection for a Tonsillectomy The claim of service connection for tonsillectomy was also denied in rating decisions in December 1986 and February 2010. However, since those decisions, VA appears to have received new service department records relevant to the Veteran’s claim. Specifically, records from March and May 1978 from the Naval Regional Medical Center at Camp Lejeune show treatment for chronic tonsillitis and tonsillectomy. A review of the February 2010 rating decision indicates that these records were not available for review at that time. Therefore, VA will reconsider the Veteran’s claim of service connection for tonsillectomy pursuant to 38 C.F.R. § 3.156(c). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to report symptoms and experiences observable by his senses but not to diagnose a throat disability or determine its cause as this requires specialized training to understand this complex body system. See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The weight of the evidence does not show a current, residual disability from the tonsillitis and tonsillectomy in service. As noted, treating providers from March 1978 recorded the Veteran’s history of chronic tonsillitis and recommended tonsillectomy. On May 2, 1978, the Veteran underwent a tonsillectomy. On May 3, he was released from the hospital with convalescent leave through May 8. The records indicate that the Veteran “tolerated the procedure well,” “left the operating room in good condition,” and had a “benign postoperative course.” There is no indication in the service treatment records of any complications or lingering disability after the surgery. The Veteran’s June 1978 separation examination revealed a normal mouth and throat. During the September 1986 VA examination, the Veteran complained of occasional throat irritation. The examiner diagnosed throat irritation after tonsillectomy probably from mouth breathing. During the same examination, the examiner noted that the Veteran had trouble breathing through is nose and diagnosed rhinitis with nasal obstruction and enlarged turbinates. In May 2015 VA treatment, the Veteran reported his belief that the tonsillectomy causes him problems clearing his throat. VA and private treatment records show complaints of and treatment for allergic rhinitis and sinusitis. However, treating providers have never indicated any residual effects of the tonsillectomy. While the Board has considered the Veteran’s reports that the tonsillectomy caused throat irritation and problems clearing his throat, the Board finds that the September 1986 examiner’s indication that throat problems were related to mouth breathing more probative in light of the examiner’s medical expertise and the other evidence of record. The weight of the evidence is against finding a current, residual disability from the in-service tonsillitis and tonsillectomy. Additionally, the Board notes that the Veteran’s reports of throat trouble may be considered with his pending claim for allergic rhinitis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a tonsillitis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for allergic rhinitis or sinusitis is remanded. The Veteran contends he has allergic rhinitis/sinusitis related to service. At the time of his April 1974 entrance examination, the Veteran reported a history of headaches and seasonal hay fever. The examiner, however, did not record any disability and noted that the Veteran’s seasonal hay fever was not considered disabling. Therefore, the Veteran is presumed to have been in sound condition at entrance into service, and VA may only rebut this presumption with clear and unmistakable evidence. See 38 C.F.R. § 3.304(b). After acceptance to active duty, service treatment records do not show complaints of or treatment for allergy or sinus problems. Nevertheless, a private treatment record from November 1982 notes severe headaches and nasal congestion with reported onset in 1976. In his February 2016 substantive appeal, the Veteran reported having severe headaches as a result of rhinitis in service and that the condition flared up terribly when he was in Hawaii. In an August 2014 correspondence, the Veteran also asserted that his rhinitis was due to contaminated water at Camp Lejeune. His service records confirm that he was in Camp Lejeune in 1978, during the period of water contamination. See 38 C.F.R. § 3.307(a)(7). Although rhinitis/sinusitis is not a disability presumed to be caused by exposure, the Veteran may still prevail in his claim by showing his specific disability is related to the contaminated water. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994); 38 C.F.R. § 3.309(f). Current VA treatment records from March and October 2016 show treatment and medication for sinus congestion and diagnosis of chronic sinusitis. A VA medical examination and etiology opinion are needed to determine whether the Veteran’s current sinus conditions are related to his reported nasal congestion in service or alternatively, to exposure to contaminated water. As a third theory to entitlement, the Veteran contends that around March to May 1978, he was exposed to a gas bomb and gas cloud without protective gear and that when he breathed in the gas, his throat, tonsils, and glands started swelling. In his August 2009 statement, he wrote that he was hospitalized for several weeks after this incident and the hospital took out his tonsils specifically because of the swelling. He indicated that this was also when his headaches, sinusitis, and rhinitis difficulties began. The Veteran’s service treatment records from March and May 1978 note a history of chronic tonsillitis as the precipitating factor leading to his tonsillectomy. There is no mention of this gas incident or weeks-long hospitalization. The Board, therefore, finds that this theory of entitlement lacks the necessary credibility to warrant a VA medical opinion. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disability. Finally, given the time that will elapse on remand, updated VA treatment records should be obtained. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from March 2016 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for a VA examination and medical opinion for his allergic rhinitis/sinusitis claim. The examiner should review the relevant evidence and assume that the Veteran was sound upon entrance to service without any preexisting allergic rhinitis/sinusitis disability unless the examiner can provide clear and unmistakable evidence that the condition preexisted service and was not aggravated by service. The examiner should address the following: a. Did the Veteran’s current chronic sinusitis, documented in October 2016 treatment records, at least as likely as not have its onset in service? The examiner should also consider private treatment records from the 1980s and the Veteran’s reports therein of onset in 1976. b. Is the Veteran’s current chronic sinusitis at least as likely as not related to his presumed exposure to contaminated water at Camp Lejeune? Any opinion expressed should be accompanied by a supporting rationale. The examiner must provide a complete rationale for all opinions and conclusions reached. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.P. Armstrong