Citation Nr: 18157298 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-53 884 DATE: December 12, 2018 ORDER As new and material evidence having been received to reopen a claim for service connection for a sinus condition, the claim is reopened. REMANDED Entitlement to service connection for sleep apnea (OSA), to include as secondary to service-connected migraines and a right ankle disability is remanded. Entitlement to service connection for a sinus condition is remanded. FINDINGS OF FACT 1. The March 2011 Board decision denied the Veteran’s claim of entitlement to service connection for sinusitis and it was not appealed. 2. Evidence associated with the claims file since the March 2011 Board decision is new and material raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a sinus condition. CONCLUSIONS OF LAW 1. The March 2011 Board decision denying service connection for sinusitis is final. 38 U.S.C.§ 7104 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1104 (2018). 2. Evidence received since the March 2011 Board decision is new and material, and therefore, the claim of entitlement to service connection for a sinus condition is reopened. 38 U.S.C.§ 5107, 5108, 7104 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to December 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2014 and March 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Jackson, Mississippi and Des Moines, Iowa, respectively. The rating decision of June 2014 declined to reopen the Veteran’s claim for service connection for sinusitis, finding no new and material evidence had been presented. The rating decision of March 2015 denied the Veteran’s claim for service connection for OSA. The issues were previously before the Board in February 2016 and were remanded for further development. As the requested development has been completed, the matter is properly returned to the Board for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). New and Material evidence has been received to reopen a claim for service connection for a sinus condition In October 2006, the AOJ denied the Veteran’s claim for service connection for sinusitis. He perfected his appeal to the Board, and in March 2011, the Board considered his service treatment records, post-service VA treatment records, VA examination of 2009 and accompanying X-rays of October 2009, DRO hearings of June 2009 and August 2010, and a September 2010 Board hearing, before denying the claim. The Board in its denial cited that the Veteran did not currently have sinusitis but rather, vasomotor rhinitis. The Veteran did not appeal the March 2011 Board decision. When a rating decision issued by the AOJ is affirmed by the Board, that determination is considered final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1100, 20.1104 (2018). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means 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) (2018). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases where the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). New evidence raises a reasonable possibility of substantiating the claim when considered with the evidence already of record, triggers the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). In March 2013, the Veteran petitioned to reopen his claim for sinusitis. The evidence received since the March 2011 Board decision includes more recent VA treatment records showing complaints of sinus congestion and headaches, a June 2014 diagnosis of sinusitis, a letter from C. B-L. stating that as office manager for Dr. A. B. B., she remembers the Veteran being treated since 1972, and statements from Veteran citing additional symptoms associated with sinusitis. The Board finds that the evidence since the March 2011 Board decision is new, and material, and when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The additional evidence constitutes new and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a sinus condition. Therefore, new and material evidence has been received to reopen the finally disallowed claim. 38 U.S.C. § 5107 (2012); Annoni v. Brown, 5 Vet. App. 463 (1993). REASONS FOR REMAND 1. Entitlement to service connection for OSA, to include as secondary to service-connected migraine headaches and a right ankle disability, is remanded The Veteran contends that he has OSA as a result of service, and alternately, due to his service-connected migraine headaches or right ankle disability. The Veteran was afforded a VA examination in March 2015. The VA examiner only addressed the causation prong of a secondary service connection theory and concluded that the Veteran’s obesity is the cause of his OSA. The Board herein finds the VA opinion inadequate for adjudication purposes. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. Atencio v. O’Rourke, 30 Vet. App. 74 (2018). The Board notes that since the March 2015 VA medical opinion, the Veteran asserted that his obesity is a result of his service-connected migraine headaches and right ankle disability, which in turn, caused or aggravated his OSA. Obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. 3.310(a). VAOPGCPREC 1-2017. A supplemental medical opinion is, therefore, requested to address this new theory of the case, as well as, both prongs of a secondary service connection claim. 2. Entitlement to service connection for sinusitis is remanded As new and material evidence having been received for the claim for entitlement to service connection for a sinus condition, the appeal is allowed to that extent. The Veteran’s claim for service connection for a sinus condition having been reopened, the Board finds that additional evidentiary development is necessary. The Veteran asserts that his currently diagnosed sinusitis was incurred in service and has continued since service. His STRs show possible sinusitis infection in February 1971. His separation physical in September 1971, notes sinusitis but also that it was “asymptomatic.” The Veteran’s post-service VA treatment record shows complaint sinus issues and a diagnosis of sinusitis in June 2014. A VA examination is required to determine the nature and etiology of his sinus condition. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The record indicates that the Veteran’s sinusitis symptoms are worsened in the spring and summer months. The Veteran has also argued that his examination should be conducted during said months. Therefore, the RO in scheduling the VA examination should ensure that the examination is conducted during the spring and/or summer months. Accordingly, these matters are REMANDED for the following action: 1. Provide the Veteran’s claim file to a suitable clinician so that a supplemental opinion may be provided addressing the etiology of his OSA. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. September 2010 dated statement of his wife, M. W., who states that when the Veteran is in pain, he cannot work or exercise. b. September 2014 statement from the Veteran that he has experienced OSA ever since service, starting in Basic Training. c. April 2014 Ankle Conditions DBQ noting the Veteran’s ankle disability limits his ability to walk and stand. d. April 2012 VA examination noting the Veteran’s difficulty with standing/walking for prolonged periods; need to frequently rest with his feet-elevated; inability to bear weight on the ankle; and use of an ankle brace and cane. The examiner should then address the following: a. Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s OSA was incurred in service. b. Whether it is at least as likely as not that the Veteran’s OSA was proximately due to or the result of service-connected migraine headaches and/or a right ankle disability. c. Whether it is at least as likely as not that the Veteran’s OSA has been aggravated (increased in severity beyond the natural progression of the disorder) by his service-connected migraine headaches and/or a right ankle disability. d. Do the Veteran’s service-connected migraines and/or right ankle disability cause obesity? e. If the answer to (d) is “yes,” then was the obesity a substantial factor in causing OSA? f. If the answer to (e) is “yes,” determine whether OSA would not have occurred but for the obesity caused by the service-connected migraines and/or right ankle disability. 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 a conclusion. 2. Schedule the Veteran for a VA examination, to be conducted during the spring or early summer months if possible, with an appropriate clinician to assess the etiology of his sinus condition. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. February 1971 STR entry noting sinus tenderness and “possible sinus” infection. b. September 1971 separation physical noting sinusitis but “asymptomatic at this time.” The examiner should then provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s sinus condition is a result of service. 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 a conclusion. 3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel