Citation Nr: 18154484 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 15-31 311A DATE: November 30, 2018 ORDER The application to reopen the previously denied claim for service connection for allergic rhinitis is granted. Entitlement to service connection for rhinitis is granted. The application to reopen the previously denied claim for service connection for PTSD is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. In a July 2014 rating decision, the RO denied the Veteran's claim of entitlement to service connection for allergic rhinitis. The Veteran did not appeal and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the July 2014 rating decision relates to the basis for the prior denial for allergic rhinitis and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether current rhinitis had its onset in service. 4. In a May 2013 rating decision, the RO denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran did not appeal and new and material evidence was not received within the one-year appeal period. 5. Evidence received since the May 2013 rating decision relates to the basis for the prior denial for PTSD and raises a reasonable possibility of substantiating the claim. 6. The evidence is at least evenly balanced as to whether there is credible supporting evidence for the military stressor underlying the current PTSD diagnosis. CONCLUSIONS OF LAW 1. The July 2014 rating decision that denied the claim of entitlement to service connection for allergic rhinitis is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b). 2. The evidence received since the July 2014 rating decision is new and material as to the issue of service connection for allergic rhinitis and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for rhinitis are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.380. 4. The May 2013 rating decision that denied the claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b). 5. The evidence received since the May 2013 rating decision is new and material as to the issue of service connection for PTSD and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2015 and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified during a hearing at the Board before the undersigned Veterans Law Judge. The transcript from the hearing has not yet been associated with the file, but as the benefits sought are being granted in full, the transcript is not necessary for a decision in this case. I. Petitions to reopen Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the 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). (a) Allergic Rhinitis In July 2014, the RO denied service connection for allergic rhinitis. The Veteran did not appeal the decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the July 2014 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In the July 2014 rating decision, the RO cited an absence of a nexus to service or service-connected disability as the reason for the denial. It cited the July 2014 VA medical opinion as evidence weighing against a nexus. Since the July 2014 rating decision, the Veteran submitted an October 2015 letter from private specialist stating that the service-connected deviated nasal septum aggravated his current rhinitis. Then, November 2015 VA primary care records included reports that rhinitis symptoms started when the Veteran broke his nose in service. Notably, the Veteran is competent to report his history of readily observable symptoms, such as those associated with rhinitis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). His reports are presumed credible for purposes of reopening. Justus, 3 Vet. App. at 513. There is also a March 2016 VA medical opinion weighing against the secondary service connection contention for this claim. In sum, the newly received items of evidence relate to the basis for the prior denial to suggest a military or secondary nexus for this disability. The additional evidence raises a reasonable possibility of substantiating the claim. The Board considers it to be new and material. Reopening of the allergic rhinitis claim is therefore warranted. (b) PTSD In May 2013, the RO denied service connection for PTSD. The Veteran did not appeal the decision, nor did he submit new and material evidence within the remaining appeal period. The Board notes that the Veteran identified a July 2013 VA Gulf War examination in August 2013 correspondence. Review of the July 2013 examination report does not include any new and material evidence for the PTSD claim. See Turner v. Shulkin, 29 Vet. App. 207 (2018) (holding that sufficiently identified VA treatment records within the appeals periods may be subject to constructive receipt). Accordingly, the May 2013 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In the May 2013 rating decision, the RO cited an absence of a military event as the reason for the denial. It cited the service records as evidence weighing against a military event. Since the May 2013 rating decision, the Veteran submitted September 2014 and November 2014 statements from two fellow service members. They served with the Veteran aboard the USS Simon Lake. They attested that the Veteran had a serious accident as crane operator aboard this ship. The Veteran was initially blamed for the accident, but subsequently investigation found his supervisor to be at fault. The accident caused significant property damage and endangered others. They remembered having to undergo additional training due to this accident. For reopening purposes, the reports are presumed credible. Justus, 3 Vet. App. at 513. Then, an August 2015 VA PTSD examination report confirmed a PTSD diagnosis due to the stressor detailed in the September 2014 and November 2014 supporting lay statements. In sum, the newly received items of evidence relate to the basis for the prior denial to suggest the occurrence of a military stressor that underlies the current PTSD diagnosis. The additional evidence raises a reasonable possibility of substantiating the claim. The Board consider it to be new and material. Reopening of the PTSD claim is therefore warranted. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (a) Entitlement to service connection for rhinitis, to include as secondary to service connected deviated septum. Supplementary regulations apply to this claim. As relevant, seasonal and other acute allergic manifestations subsiding on the absence or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380. Service treatment records (STRs) include a December 1988 Report of Medical History. As relevant, the Veteran denied having a history of ear, nose or throat trouble, sinusitis or hay fever. Contemporaneous physical examination was normal. STRs from May 1990 showed that the Veteran sought medical treatment for a nose injury. He was struck on the nose by a basketball. The clinician found a mild deviation of the nasal septum and assessed soft tissue pain to the nose. In August 1990 and July 1991 Dental Reports of Medical History, the Veteran endorsed having hay fever. In a July 1992 Dental Report of Medical History, the Veteran endorsed having sinus problems. In his March 1993 Report of Medical History for separation, the Veteran reported that he did not know if he had a hay fever history. Although the handwriting is not entirely clear, the examiner appears to reference seasonal allergies. Contemporaneous physical examination was within normal limits. In July 2010, K.B. reported that she knew the Veteran since 1992. She observed that the Veteran had noticeable nasal and sinus problems. In May 2013, the Veteran was afforded a VA rhinitis examination. The examiner confirmed an allergic rhinitis diagnosis with a 1991 onset and noted the current treatment. She reports that the Veteran believed the obstruction caused by the service-connected nasal septum aggravated his rhinitis. In July 2014, a VA examiner provided a negative addendum medical opinion. She stated that the medical literature did not support a nexus between traumatic deviated nasal septum and allergic rhinitis. She cited genetic predisposition and allergen sensitization as alterative causes. In October 2015, Dr. B.D. furnished a letter in support of the claim. He reported that the Veteran’s allergic rhinitis and nasal congestion were aggravated by the service-connected deviated nasal septum. November 2015 VA primary care records included reports that the Veteran had a longstanding history of chronic sinusitis and allergic rhinitis that had been treated by a private medical provider. The Veteran reported that these symptoms started with a military nose injury. In March 2016, another VA examiner provided a negative medical opinion for this claim. She noted the May 1990 nose injury and October 2015 letter from the private allergist. She cited the medical literature weighing against a relationship and alternative causes of genetic predisposition and immune response to allergens. The Veteran contends service connection is warranted for rhinitis either on a direct basis or as secondary to service-connected deviated septum. As explained below, the evidence is at least in a state of relative equipoise with regard to direct service connection and the Board will grant the claim on this basis. Consideration of the secondary theory of entitlement is therefore not necessary. As an initial matter, the Board finds that the allergic rhinitis is accurately characterized as a disease. Applicable 38 C.F.R. § 3.380 specifically contemplates seasonal or other acute allergic manifestations subsiding on the absence or removal of the allergen as acute diseases. The medical definition of allergic rhinitis is “an inflammation of the nasal passages caused by reaction to airborne substances.” https://medical-dictionary.thefreedictionary.com/allergic+rhinitis. The medical definition of disease is “an interruption, cessation, or disorder of a body, system, or organ structure or function.” See https://medical-dictionary.thefreedictionary.com/disease. These definitions also indicate that allergic rhinitis is properly characterized as a disease. There is also some question as to whether the Veteran’s rhinitis is allergic or vasomotor. The Veteran reports include assertions that he had a history of rhinitis symptoms and continuous symptoms beginning in service. 38 C.F.R. § 3.303(d). In this regard, the definition of current disability for VA compensation purposes is broad and includes diseases with intermittent manifestations, such as allergic rhinitis. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 303 (2013); 38 C.F.R. § 3.380. As these symptoms are readily observable, the Veteran is competent to report on them. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). STRs provide support to his assertions. At entrance, he denied any nose, sinus or hay fever problems. He then had a documented nose injury and made several reports of a history of hay fever or sinus problems in service medical history questionnaires. Then, the May 2013 VA examiner described an allergic rhinitis diagnosis with a 1991 onset and November 2015 VA primary care records indicate a longstanding history of allergy symptoms from service. The Board considers the Veteran’s reports of longstanding allergic rhinitis type symptoms from service credible due to the consistency of his reports dating to service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (medical evidence not always required to establish an etiology); 38 U.S.C. § 1154(a). In this case, the Board finds these reports probative evidence that the symptoms are sufficiently recurring to constitute a chronic disability that started in service as opposed to an acute disease. Id.; 38 C.F.R. §§ 3.303(d), 3.380 (service incurrence for allergic type disease must be based on the whole evidentiary showing). The evidence against the claim consists of the VA medical opinions indicating non-service causal factors are responsible for the current allergic rhinitis. The Board does not find these VA examination reports sufficiently probative to outweigh the Veteran’s competent and credible reports. Id.; Caluza, 7 Vet. App. at 506. The VA examiners do not provide an explanation to reject the Veteran’s competent and credible reports of rhinitis symptoms starting in service or provide an explanation for why the Veteran’s allergic rhinitis more closely resembles an acute disease process. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). For the foregoing reasons, the Board resolves reasonable doubt in favor of the Veteran and finds that a nexus to service is demonstrated for the current rhinitis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for rhinitis is therefore warranted. (b) Entitlement to service connection for posttraumatic stress disorder (PTSD) Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The diagnostic criteria, including those related to stressors for mental disorders, set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5) have been adopted by VA. 38 C.F.R. § 4.125. A diagnosis of PTSD requires exposure to a traumatic event and a response involving intense fear, helplessness, or horror. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and the person's response involved intense fear, helplessness or horror. See Cohen, 10 Vet. App. 128. The sufficiency of a stressor is a medical determination and is presumed when there is a medical diagnosis of PTSD. Id. For stressors unrelated to combat, credible supporting evidence is necessary in order to grant service connection. "Credible supporting evidence" of a non-combat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). The Court has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996). However, it does not require that such corroboration must come from service records. Id. at 166. Service personnel records showed that the Veteran was assigned to the USS Simon Lake from January 1990 to February 1992 and that he worked with cranes in October 1990. In March 2012, the Veteran reported a military stressor occurring sometime in June or July 1990 aboard the USS Simon Lake. He was using a crane to lift a heavy object and the pallets broke. The dropped object damaged the boat and almost caused fatal injuries. He was distressed over this accident and the subsequent investigation. In September 2014, a fellow service member stated that he served with the Veteran on the USS Simon Lake. He recalled working with the Veteran in October 1990. He remembered the Veteran being very distressed over a lift accident where the pallet broke and the falling object nearly killed two people below. He stated that the Veteran reported the accident was caused by his following a direct order from his supervisor. The service member also remembered that the investigation cleared the Veteran and that their whole department had to undergo additional safety training following the accident. In November 2014, another service member reported that he served with the Veteran aboard the USS Simon Lake. He recalled an October 1990 incident with the Veteran because he had heard that they were threatening to court martial the Veteran over the property damage and risk of fatal injury. He remembered undergoing additional training due to the unsecure loading accident that involved the Veteran. He stated that the Veteran was terrified because he did not know he could get into trouble for following orders. In August 2015, the Veteran underwent a VA PTSD examination. As relevant, the VA examiner diagnosed PTSD and attributed it to the military crane loading accident. In May 2016, Dr. W issued a letter in support of the claim. He confirmed that the Veteran had PTSD. January 2018 Defense Personnel Records Information Retrieval System (DPRIS) response reported that the 1990 command history for the USS Simon Lake was negative for the accident. It recommended a deck log search with another researcher. In February 2018, the researcher identified in the January 2018 DPRIS report provided an unclear response and stated that no further responses would be forwarded due to the sensitivity and classification of the request. The Veteran contends service connection is warranted for PTSD. The August 2015 VA examination report establishes a current PTSD diagnosis due to a military crane accident stressor. The issue in dispute is the occurrence of this stressor. The crane accident stressor is unrelated to combat or hostile military activity. Accordingly, the Veteran’s reports or those relayed to clinicians, standing alone, cannot be considered credible supporting evidence as to the occurrence of this stressor. Dizoglio, 9 Vet. App. at 164. In this case, the Board considers the September 2014 and November 2014 lay statements in conjunction with the personnel records to be credible supporting evidence of the crane accident stressor underlying the current PTSD diagnosis. Available service department records confirm that the Veteran served aboard the USS Simon Lake during the period in question and specifically worked with a ship crane in October 1990. The lay reports from September 2014 and November 2014 come from individuals that served with the Veteran. Their reports about the stressor are plausible and are generally consistent with the circumstances of the Veteran’s service as shown in service department records. Caluza, 7 Vet. App. at 506. The Board considers the September 2014 and November 2014 lay reports to be credible supporting evidence for the stressor’s occurrence. Dizoglio, 9 Vet. App. at 166; id. The August 2015 VA examiner premised the PTSD diagnosis on this stressor. For these reasons, service connection for PTSD is warranted. In sum, there is a valid diagnosis of PTSD based on the claimed in-service stressor and the evidence is at least evenly balanced as to whether there is credible supporting evidence that the stressor occurred. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD is warranted. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel