Citation Nr: 18152078 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-41 671 DATE: November 21, 2018 ORDER New and material evidence having not been received, the claim to reopen service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for a chronic sinusitis is denied. Service connection for a thyroid disorder, to include hypothyroidism and Hashimoto's disease, is denied. REMANDED Entitlement to service connection for a sinus disorder other than chronic sinusitis, to include rhinitis, is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) last denied service connection for PTSD in an April 2010 rating decision, and although the Veteran filed a timely notice of disagreement with that rating decision, the Veteran did not complete appeal by submitting a timely substantive appeal, VA Form 9, with the April 2011 statement of the case; the April 2010 rating decision is therefore final. 2. The evidence received since the April 2010 rating decision is either redundant evidence, or is not material insofar as it does not relate to unestablished facts necessary to substantiate the claim of service connection for PTSD. 3. The Veteran’s chronic sinusitis did not have onset in service or for many years thereafter, and is not otherwise due to military service. 4. The Veteran’s current thyroid disability did not have onset in service or for many years thereafter, and there was no relevant in-service disease or injury. CONCLUSIONS OF LAW 1. The April 2010 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection for PTSD are not met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 3.303, 3.307, 3.309. 3. The criteria for service connection for a chronic sinusitis are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a thyroid disorder, to include hypothyroidism and Hashimoto's disease, are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1990 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On appeal, the Board has broadened the Veteran’s sinusitis and Hashimoto’s disease claims to encompass claims for any sinus disorder, including rhinitis, and any thyroid disorder, including hypothyroidism, in order to more accurately characterize the scope of those claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the need to remand the rhinitis claim for an additional medical opinion, as discussed below, the Board has subsequently split that issue as noted above. Reopening Service Connection for PTSD To be entitled to service connection for PTSD, as opposed to another mental health disorder, the record must include (1) medical evidence establishing a diagnosis of the condition under the Diagnostic and Statistical Manual 5 (DSM-V) in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). 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 unaddressed new and material evidence is received during the appeal period of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and of the substantive appeal. 38 C.F.R. § 20.204(c). 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. 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). 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). Historically, the Veteran filed his initial claim of service connection for PTSD in December 2009, and the AOJ denied service connection for PTSD in an April 2010 rating decision, as there was no diagnosis of PTSD. The Veteran submitted a timely notice of disagreement with the April 21010 rating decision in May 2010; however, following the issuance of an April 2011 statement of the case respecting the PTSD issue, the Veteran did not submit a timely substantive appeal, VA Form 9. Consequently, the Veteran did not complete appeal of the April 2010 rating decision, and it therefore became final. See 38 C.F.R. §§ 20.200, 20.202, 20.1103. New and material evidence is therefore required to reopen the claim of service connection for PTSD. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. Several private treatment records, VA treatment records, and the Veteran’s service treatment records were of record at the time of the April 2010 rating decision. The Veteran’s service treatment records did not demonstrate any treatment for or diagnosis of any psychiatric disorders during military service, and although the VA and private treatment records documented psychiatric disorders, those records and examiners did not diagnose the Veteran with PTSD. In fact, in a March 2010 VA psychiatric examination, that VA examiner specifically did not meet the criteria for a diagnosis of PTSD under the DSM-IV. In order to find new and material evidence has been submitted in this case, the evidence of record since the last final April 2010 rating decision must demonstrate the existence of a current disability; in other words, there must be evidence of a diagnosis of PTSD in order to reopen this claim. VA treatment records received since the April 2010 rating decision document that the Veteran is treated for a psychiatric disability, for which service connection has already been established. The VA treatment records, however, do not demonstrate that the Veteran has ever been assessed as having or diagnosed with PTSD by any medical professional. Although the Board acknowledges that those records document statements from the Veteran that he has PTSD, the Board reflects that the Veteran has not submitted any evidence of a diagnosis of PTSD to support those statements and he is not otherwise competent to render a psychiatric diagnosis, as he lacks the requisite medical experience and expertise in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board therefore does not find that the Veteran’s statements that he has PTSD contained in the VA treatment records are competent evidence. Furthermore, the VA medical professionals’ transcription of the Veteran’s statements in this case are also not competent evidence of a diagnosis of PTSD in this case. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a bare transcription of a lay history is not transformed into “competent medical evidence” merely because the transcriber happens to be a medical professional). Additionally, the Veteran has submitted private treatment records since the April 2010 rating decision; those records, generally, pertain to the Veteran’s other claims on appeal, addressed below. Regardless, those records do not demonstrate that the Veteran has been assessed with PTSD under the DSM-5. Finally, the Board additionally notes that the Veteran underwent VA psychiatric examinations in March 2014 and June 2018; neither of those VA examiners found that the Veteran warranted a diagnosis of PTSD under the DSM-5 criteria. Likewise, the Veteran submitted a private September 2014 psychiatric Disability Benefits Questionnaire (DBQ0 from Dr. H.H.; Dr. H.H. also did not diagnose the Veteran with PTSD under the DSM-5 criteria at that time. Accordingly, the Board finds that although there is new evidence in this case, none of that evidence is material in this case, as none of that evidence demonstrates that the Veteran has been assessed as having PTSD under the DSM-5, nor does it necessitate obtaining a medical opinion in this case. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Chronic Sinusitis A review of the Veteran’s service treatment records documents that he had treatments in service for bronchitis in August 1991; he also had treatments for several instances of sinus congestion, rhinorrhea, and other complaints assessed as upper respiratory infections (URIs) in February 1990, January 1991, February 1991, March 1991, October 1991, May 1992, December 1992, May 1993, June 1993. The Board, however, notes that in a May 1991 examination during service and during his September 1993 separation examination, the Veteran’s sinuses were found to be normal. He denied any ear, nose or throat trouble, chronic of frequent colds, sinusitis, or hay fever during his reports of medical history with those examinations; the Veteran did report a chronic cough during those examinations, although the September 1993 examiner found that such was related to the Veteran’s smoking. The Veteran’s first notation of any sinus problems after discharge from service is in a private treatment records with Dr. M.N.K. in January 2011. In those records, the Veteran was noted to have nasal polyps in August 2010. Dr. M.N.K. found that the Veteran had chronic sinusitis at that time and the Veteran underwent a sinus surgery at that time. The Veteran was seen for follow-up appointments by Dr. M.N.K. through April 2011. His VA treatment records document continued treatment for chronic sinusitis throughout the appeal period. The Veteran underwent a VA examination in February 2014, at which time he was diagnosed with sinusitis and rhinitis. The examiner noted that the Veteran had 9 episodes of URIs over 3.5 years in the service, which was less than 3 per year and that he was never placed on antibiotics or diagnosed with a sinus infection during service. The examiner further noted that the Veteran denied any ear, nose, and throat trouble, sinusitis, and hay fever during his separation examination. The Veteran reported during that time that his since trouble because “a few years before seeing” Dr. M.N.K. in January 2011; the examiner noted that such was 12 years after the Veteran’s discharge from service. The examiner further noted Dr. M.N.K.’s findings as well as the Veteran’s history of sinus surgery in January 2011; the examiner also noted the history of 2-3 sinus infections per year prior to the surgery and his continued history of less severe sinus infections 2-3 times a year. The examiner noted that the Veteran also had a lot of rhinorrhea and post-nasal drainage, but had never tried an allergy pill but had used a nasal steroid spray for a short time. After examination, the examiner opined as follows: [The Veteran] had a normal number of URI episodes during active duty (less than 3 per year), without any diagnosis of sinusitis. In his own words today, he said, “I don't think this started when I was in the military.” He says it started a few years before he saw Dr. [M.N.K.], which was in 2011. Based on those facts, in my opinion it is less likely than not that he had sinusitis while in the military and less likely than not that his subsequent sinusitis was due to military service or related to the URI's he had while in military service. Based on the foregoing evidence, the Board finds that the Veteran had noted URIs in service and has a current sinusitis disability. Therefore, the first two elements of service connection are met in this case. This case turns on a nexus to military service; the Board finds that such a nexus does not exist in this case. The Board initially reflects that first notation of any chronic sinusitis was not shown to be during military service, but many years after discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). It appears that the Veteran’s own statements during his February 2014 VA examination confirm that his sinusitis began several years after military service and has not been chronic and continuous since military service; those statements are additionally borne out by the contemporaneous evidence of record in this case, including the Veteran’s report of medical history on separation from service. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Insofar as the Veteran has asserted that his sinusitis began in or is otherwise related to military service, the Board finds that the Veteran is not competent to render any medical opinion with regards to etiology of his sinusitis in this case, as he lacks the requisite medical experience and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the sole competent evidence regarding a nexus in this case is the February 2014 VA examiner’s opinion; that examiner’s opinion found that the Veteran’s chronic sinusitis was not related to military service, to include the noted URIs during service, and is based upon a review of the evidence of record, including the Veteran’s lay statements in this case. It is therefore the most probative evidence of record in this case and is not refuted by any other evidence of record at this time. Accordingly, as the evidence of record does not demonstrate that the Veteran’s current sinusitis disability was incurred in or otherwise due to military service, the Board must deny service connection for chronic sinusitis based on the evidence of record at this time. See 38 C.F.R. § 3.303. Thyroid Disorder/Hashimoto’s Disease The Board reflects that the Veteran was diagnosed with hypothyroidism, “likely Hashimoto’s” disease, in a July 2012 VA treatment record. The other private and VA treatment records do not demonstrate any specific finding of Hashimoto’s disease throughout the appeal period. In light of the finding of hypothyroidism, however, the Board finds that a current thyroid disability exists in this case and the first element of service connection has been met. Next, throughout the appeal, aside from generally claiming service connection for a thyroid disability, the Veteran has not offered any specific contentions with regard to service connection for his thyroid disability in this case. A review of the Veteran’s service treatment records does not demonstrate any complaints of, treatment for, or diagnosis of hypothyroidism, Hashimoto’s disease, or any other thyroid problems or dysfunction during military service. In fact, in a May 1991 examination and in his September 1993 separation examination, the Veteran’s endocrine system was found to be normal; the Veteran denied any thyroid problems in the reports of medical history that accompany those examinations. In short, the Veteran’s thyroid disability is not shown to manifest during military service or for many years thereafter. See Maxson, supra. Moreover, there is no evidence during military service of any disease, event, or injury with respect to his endocrine system, generally, or thyroid, particularly; nor is there any other evidence of any dysfunction on which to predicate a finding of service connection in this case. The Board reflects that the Veteran has not been afforded a VA examination in this case with regards to his claimed thyroid disability, although in light of the above regarding the lack of any in-service disease, injury, or event in this case to predicate a claim of service connection, the Board finds that the low threshold for obtaining a medical examination and opinion have not been met in this case. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In short, although the Veteran has a current thyroid disability in this case, such is not shown to have been incurred in service or for many years thereafter, and there is no in-service disease, injury or event on which to predicate a claim of service connection in this case. Accordingly, the Board must deny service connection for a thyroid disorder, to include hypothyroidism and Hashimoto’s disease, based on the evidence of record at this time. See 38 C.F.R. § 3.303. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran was also diagnosed with rhinitis by the February 2014 VA examiner. As noted by that examiner, he had several instances of URIs during service, as well as some treatment for rhinorrhea and “seasonal allergies.” That examiner’s opinion, however, focused completely on sinusitis and did not address the diagnosed rhinitis disorder. Consequently, the Board finds that a remand is necessary in order to obtain an addendum opinion which addresses whether the Veteran’s rhinitis is related to military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Milwaukee VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. The AOJ should ensure that the claims file is provided to an appropriate examiner for an addendum opinion as to whether the Veteran’s rhinitis at least as likely as not (50 percent or greater probability) either began during or was otherwise related to military service, to include any treatment for rhinorrhea, seasonal allergies, or URIs therein. (Continued on the next page)   The examiner should also consider any lay statements of record regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel