Citation Nr: 18153249 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-39 120 DATE: November 27, 2018 ORDER New and material evidence having been submitted, the Veteran’s claim for entitlement to service connection for vertigo is reopened. New and material evidence having been submitted, the Veteran’s claim for entitlement to service connection for sinusitis is reopened. New and material evidence having been submitted, the Veteran’s claim for entitlement to service connection for allergic rhinitis is reopened. REMANDED Entitlement to service connection for vertigo, to include dizziness and motion sickness, is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for allergic rhinitis is remanded. FINDINGS OF FACT 1. Evidence received since the March 2009 rating decision denying service connection for vertigo to include dizziness and motion sickness is neither cumulative nor redundant of the evidence of record at the time of the March 2009 final decision, and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 2. Evidence received since the March 2009 rating decision denying service connection for sinusitis is neither cumulative nor redundant of the evidence of record at the time of the March 2009 final decision, and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 3. Evidence received since the March 2009 rating decision denying service connection for allergic rhinitis is neither cumulative nor redundant of the evidence of record at the time of the March 2009 final decision, and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. CONCLUSIONS OF LAW 1. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for vertigo to include dizziness and motion sickness based on new and material evidence have been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for sinusitis based on new and material evidence have been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for allergic rhinitis based on new and material evidence have been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from October 1989 to August 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota (Agency of Original Jurisdiction (AOJ)). New and Material Evidence Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, “new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Whether new and material evidence has been received to permit reopening the Veteran’s claim for entitlement to service connection for vertigo to include dizziness and motion sickness The Veteran filed a claim for service connection for vertigo in November 2008, contending it is associated with the motion sickness he experienced in the military that is a recurring condition. At that time, VA treatment records documenting vertigo were part of his claims file. He also submitted a statement indicating he experiences vertigo and dizziness even when he is not doing anything. A VA examination was conducted in February 2009 for bilateral hearing loss and tinnitus, which included a notation from the audiologist stating, “he reported…vertigo for which he reported he was discharged from the US Navy for 2 sea sickness episodes. He denied any true spinning…” The Veteran provided nothing else in the form of medical records or lay statements pertaining to his claim for vertigo. The AOJ denied the Veteran’s claim for service connection vertigo in a March 2009 rating decision, indicating that while the Veteran was treated for dizziness and motion sickness in service, there did not appear to be permanent residuals or a chronic disability demonstrated by the evidence. The Veteran was provided notice of this decision and his appellate rights by letter dated March 27, 2009. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). Evidence submitted since the March 2009 final AOJ rating decision includes additional VA treatment records that documented in July 2012 and again around March 2014, the Veteran endorsed experiencing vertigo and dizziness. One such note from June 2014 says the Veteran requested medication “due to chronic recurrent vertigo since the military.” The Board finds that the information provided and evidence associated with the Veteran’s claims file is sufficient to permit reopening his claim for entitlement to service connection for vertigo. Specifically, the new evidence of record suggests a possible positive nexus between his in-service vertigo and a present condition, which raises the possibility of substantiating his claim. Additionally, these treatment notes indicate his condition seemingly did not resolve and it could be a chronic condition. Therefore, the Board finds that the evidence of record submitted since March 2009 pertaining to the Veteran’s vertigo/dizziness is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. 2. Whether new and material evidence has been received to permit reopening the Veteran’s claim for entitlement to service connection for sinusitis The Veteran filed a claim for service connection for a sinus condition and loss of smell in January 1994. At that time, a VA examination conducted in July 1994 was part of his claims file, documenting endorsements from the Veteran of frequent sinus drainage and occasional episodes of sinus pain, as well as intermittent loss of smell. The examiner diagnosed the Veteran with allergic rhinitis/sinusitis and noted a history of bacterial sinusitis with intermittent partial loss of smell. The Veteran provided nothing else in the form of medical records or lay statements pertaining to his claim for a sinus condition. The AOJ denied the Veteran’s claim for service connection for a sinus condition and loss of smell in an August 1994 rating decision, indicating that the Veteran’s sinus condition existed prior to service and aggravation of his condition was not shown. Furthermore, service records did not reveal complete and permanent loss of sense of smell, nor was it shown on the VA examination. The Veteran was provided notice of this decision and his appellate rights by letter dated August 29, 1994. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). In February 2008, the Veteran filed another claim for a sinus condition – this time, he claimed entitlement to service connection for allergic rhinitis. He contended that he takes medication all-year-round, including prescription medicine and an inhaler. He suggests his allergic rhinitis may have been aggravated while working on board a ship around engine fuels and chemicals in the military. He continued to report significant decrease in his ability to smell. Additional VA treatment records were associated with the file, documenting treatment for his sinus condition. Nonetheless, the AOJ denied the Veteran’s claim for service connection for a sinus condition in a March 2009 rating decision, indicating that the Veteran did not submit evidence that was new or material to permit reopening his claim. The Veteran was provided notice of this decision and his appellate rights by letter dated March 27, 2009. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). Evidence submitted since the March 2009 final AOJ rating decision includes additional VA treatment records and a new VA examination. The June 2014 examiner recorded a diagnosis of chronic sinusitis with a loss of sense of smell. He also noted he has had this condition since 1991, the year the Veteran was discharged. The Board finds that the information provided and evidence associated with the Veteran’s claims file is sufficient to permit reopening his claim for entitlement to service connection for sinusitis. Specifically, the new evidence of record suggests that the Veteran’s condition may have begun while he was in service as opposed to before enlistment, which raises the possibility of substantiating his claim. Therefore, the Board finds that the evidence of record submitted since March 2009 pertaining to the Veteran’s sinusitis is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. 3. Whether new and material evidence has been received to permit reopening the Veteran’s claim for entitlement to service connection for allergic rhinitis The Veteran filed a claim for service connection for a sinus condition and loss of smell in January 1994, which the AOJ has construed to encompass the claims of both sinusitis and allergic rhinitis currently before the Board on appeal. At that time, a VA examination conducted in July 1994 was part of his claims file, documenting endorsements from the Veteran of frequent sinus drainage and occasional episodes of sinus pain, as well as intermittent loss of smell. The examiner diagnosed the Veteran with allergic rhinitis/sinusitis and noted a history of bacterial sinusitis with intermittent partial loss of smell. The Veteran provided nothing else in the form of medical records or lay statements pertaining to his claim for a sinus condition. The AOJ denied the Veteran’s claim for service connection for a sinus condition and loss of smell in an August 1994 rating decision, indicating that the Veteran’s sinus condition existed prior to service and aggravation of his condition was not shown. Furthermore, service records did not reveal complete and permanent loss of sense of smell, nor was it shown on the VA examination. The Veteran was provided notice of this decision and his appellate rights by letter dated August 29, 1994. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). In February 2008, the Veteran filed another claim for a sinus condition – this time, he claimed entitlement to service connection for allergic rhinitis. He contended that he takes medication all-year-round, including prescription medicine and an inhaler. He suggests his allergic rhinitis may have been aggravated while working on board a ship around engine fuels and chemicals in the military. He continued to report significant decrease in his ability to smell. Additional VA treatment records were associated with the file, documenting treatment for his sinus condition. Nonetheless, the AOJ denied the Veteran’s claim for service connection for allergic rhinitis/sinusitis in a March 2009 rating decision, indicating that the Veteran did not submit evidence that was new or material to permit reopening his claim. The Veteran was provided notice of this decision and his appellate rights by letter dated March 27, 2009. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). Evidence submitted since the March 2009 final AOJ rating decision includes additional VA treatment records and a new VA examination. The June 2014 examiner recorded a diagnosis of chronic rhinitis. He also noted he has had this condition since 1991, the year the Veteran was discharged. The Board finds that the information provided and evidence associated with the Veteran’s claims file is sufficient to permit reopening his claim for entitlement to service connection for allergic rhinitis. Specifically, the new evidence of record suggests that the Veteran’s condition may have begun while he was in service as opposed to before enlistment, which raises the possibility of substantiating his claim. Therefore, the Board finds that the evidence of record submitted since March 2009 pertaining to the Veteran’s allergic rhinitis is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. REASONS FOR REMAND 1. Entitlement to service connection for vertigo, to include dizziness and motion sickness, is remanded. The Board notes that in March 2016, a VA opinion was sought for the Veteran’s vertigo prior to his appeal coming before the Board. The examiner suggested that the Veteran’s motion sickness was acute and transitory, while also remarking on a June 2014 clinical note that suggested postural hypotension, indicating it is a physiologic phenomenon and not a disease. He opined the Veteran’s claimed dizziness, vertigo, and motion sickness is neither caused by nor aggravated by service. The Board finds the examiner’s opinion to be inadequate. Throughout the record, the Veteran’s VA treatment records have recorded that he has a diagnosis of vertigo. Additionally, these records suggest that he takes medication for his condition. It should be noted that the Veteran has not received an examination for his condition since August 2014. To afford due process and to obtain a more adequate etiology opinion, the Board will remand for a new examination for the Veteran’s vertigo. 2. Entitlement to service connection for sinusitis is remanded. 3. Entitlement to service connection for allergic rhinitis is remanded. Though the Veteran has received a VA examination for his sinusitis, a medical opinion as to its etiology has not been provided. The Board will therefore remand to determine the nature and etiology of the Veteran’s sinusitis. While an examination and opinion has been provided for the Veteran’s allergic rhinitis, the examiner did not provide any rationale for this determination. The Board will remand for clarifying opinion as to whether the Veteran’s allergic rhinitis was aggravated by service. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from April 2016 to the present. 2. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his claimed vertigo. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate the appropriate diagnosis or underlying cause for the Veteran’s reported vertigo symptoms, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current disorder occurred in or is otherwise etiologically related to the Veteran’s military service, to include whether it is the same disorder as the inservice treatment for motion sickness. Additionally, whether it is at least as likely as not that the Veteran’s disorder causing vertigo symptoms is proximately due to service-connected tinnitus, or aggravated beyond the normal progress of the disorder by service-connected tinnitus. The examiner should consider the following: • a March 1990 report of dizziness in connection with treatment for upper respiratory infection (URI), allergic rhinitis and bronchitis; • a June 1991 evaluation for motion sickness unresolved by medication • an August 1991 Report of Medical History wherein the Veteran denied a history of dizziness or fainting spells, but a description of motion sickness aboard ship since October 1990; • a November 2008 VA audiology examination noting a history of frequent ear infections with vertigo but no true spinning; • the February 2009 VA examination, documenting complaints of vertigo; • the Veteran’s January 2009 Statement in Support of Claim; • the August 2014 VA examination; • VA treatment records including November 2002 and January 2007 report of cold symptoms with dizziness, a February 2007 evaluation of mild positional vertigo with mild orthostatic hypotension and a June 2014 evaluation; and • the March 2016 VA physician’s opinion. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his sinus conditions, to include sinusitis and allergic rhinitis. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has sinusitis and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such sinusitis occurred in or is otherwise etiologically related to the Veteran’s military service. The examiner is also asked to provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s preexisting allergic rhinitis was aggravated (any increase in disability) beyond the natural progress by the Veteran’s service. The examiner should provide a rationale for this conclusion based on symptoms before and after service, the types of treatment provided, and the known natural course of the disorder. The examiner should consider the following: • a June 1989 enlistment examination wherein the Veteran reported a history of hay fever treated with Beconase, and an examiner notation of moderate seasonal hay fever; • the 1989 and 1990 isoniazid (INH) treatment and surveillance; • treatment in March 1990 for upper respiratory infection (URI), allergic rhinitis and bronchitis; • an August 1990 follow up for URI and bronchitis, and a prescription of Seldane for allergic rhinitis; • an October 1990 asbestos surveillance questionnaire; • An August 1991 Report of Medical Examination reflecting a normal clinical examination of the nose and sinuses noting the Veteran’s report of hay fever since arriving in the U.S. from the Philippines in 1983, and an August 1991 Report of Medical History wherein the Veteran reported a history of hay fever, but denied a history of sinusitis; • the Veteran’s service treatment records; • the July 1994 VA examination; • the August 2014 VA examination; • the March 2016 VA physician’s opinion; and • VA treatment records. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel