Citation Nr: 18158168 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-41 611 DATE: December 14, 2018 ORDER The application to reopen a claim of entitlement to service connection for rhinitis, secondary to sleep apnea, is granted. Entitlement to service connection for hypertension, as secondary to service-connected disabilities, is granted. REMANDED The underlying claim of entitlement to service connection for rhinitis, secondary to sleep apnea, is remanded. FINDINGS OF FACT 1. A January 2008 regional office (RO) decision earlier considered and denied the claim of entitlement to service connection for rhinitis, and the Veteran did not timely appeal that decision. 2. But additional evidence since received was not considered in that prior decision and relates to an unestablished fact needed to substantiate this claim. 3. The evidence is at least evenly balanced as to whether the Veteran’s hypertension is caused or being aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The RO’s January 2008 denial of service connection for rhinitis is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence since has been received, however, to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for hypertension, on a secondary basis to service-connected disabilities, are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2014 and October 2015 rating decisions. A. Rhinitis By way of background, a January 2008 rating decision denied reopening of the previously denied claim of service connection for rhinitis. The Veteran did not appeal that decision and no new and material evidence was received within one year of that decision. As such, that decision is a final and binding determination. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means 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 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). When determining whether a claim should be reopened, the credibility of the newly-submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record. In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination and opinion. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In this case, when previously adjudicating this claim, the RO considered service treatment records (STRs), service personnel records (SPRs), various other medical records and statements of the Veteran in the January 2008 rating decision. The RO denied reopening of the previously denied claim of service connection as there was no evidence then of record tending to show the Veteran’s military service had aggravated his pre-existing rhinitis. A December 2013 VA treatment record since received, however, indicates the Veteran had surgery to repair his nasal septum but that he still got swelling in his nose. In the report of a July 2016 VA examination, the examiner documented the Veteran’s report that he had nasal surgery on both of his nostrils in 2001 due to a complete blockage and that, after the surgery, he was diagnosed with sleep apnea and that his rhinitis has gotten worse since then. This evidence that has been added to the Veteran’s claims file since the January 2008 rating decision is new since it has not been previously considered. This new evidence also relates to unestablished facts necessary to substantiate the claim for service connection for rhinitis on a secondary basis. Accordingly, because this evidence addresses elements of the Veteran’s claim that were not addressed in January 2008, it also is material and therefore reason to reopen this claim. 38 C.F.R. § 3.156(a). B. Hypertension Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection also is warranted for any increase in severity, i.e., aggravation of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). In a December 2015 male reproductive organ conditions disability benefits questionnaire (DBQ), the commenting physician attributed the Veteran’s erectile dysfunction (ED) to service by way of his hypertension. Specifically, the commenting physician opined that the Veteran’s hypertension is being aggravated by his service-connected disabilities and that his hypertension caused his ED. In a contemporaneous December 2015 hypertension DBQ, the examiner opined that it was more likely than not that the Veteran’s hypertension is being aggravated by his service-connected disabilities. Although the examiner did not provide a detailed explanation, the examiner noted that he has seen the Veteran several times in regard to hypertension and has reviewed his treatment records. In the report of a July 2016 VA examination, the examiner opined that the Veteran’s hypertension is less likely than not due to or the result of his service- connected sleep apnea. The examiner reasoned that the sleep apnea could not have caused hypertension because the Veteran’s hypertension pre-dated his sleep apnea. The Board finds fault with the July 2016 VA examiner’s opinion as to secondary service connection. Although the examiner provided a negative opinion as to whether sleep apnea caused the Veteran’s hypertension, the examiner failed to discuss whether the Veteran’s sleep apnea aggravates his hypertension. Consequently, this opinion ultimately is of little probative value in this specific respect. Conversely, the December 2015 examiners’ opinions are probative evidence in support of the claim for secondary service connection. Indeed, the December 2015 examiners have related the Veteran’s hypertension to his service-connected disabilities. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The examiners’ opinions are uncontroverted as to whether the Veteran’s hypertension is being aggravated by his service-connected disabilities. Thus, the Board concludes the evidence is at least evenly balanced as to whether hypertension is secondary to the Veteran’s service-connected disabilities. While the Board could remand this claim for yet another attempt to obtain an etiological opinion, the evidence discussed is sufficient to decide this claim. A remand could therefore be construed as obtaining additional evidence for the sole purpose of denying this claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for hypertension, as secondary to service-connected disabilities, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran raised the issue of entitlement to service connection on a secondary basis, asserting that his service-connected sleep apnea had caused or is aggravating his rhinitis. The Veteran was afforded a VA examination in July 2016. Regarding whether the Veteran’s rhinitis is secondary to his service-connected sleep apnea, the examiner opined that the sleep apnea is less likely than not proximately due to or the result of the Veteran’s sleep apnea. As rationale for that opinion, the examiner reasoned that the Veteran’s rhinitis predated service-connected sleep apnea. Examiner’s reasoning also attributed the Veteran’s rhinitis to exposure to dust by living in a house with carpet, plant, bookcases, and feather pillows. The examiner also reasoned that the Veteran did not take allergy shots. That notwithstanding, although the examiner opined that the Veteran’s rhinitis is not caused by or a result of the service-connected sleep apnea and suggested that the Veteran’s rhinitis is attributable instead to dust and failure to take allergy shots, the examiner provided no opinion or rationale on whether the Veteran’s service-connected sleep apnea alternatively is aggravating his rhinitis. Secondary service connection is a two-part issue that involves analysis of both causation and aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b) (providing that “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected”). Moreover, when the Secretary provides the claimant with a VA medical examination or opinion, he must ensure that the examination or opinion provided is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA medical examination or opinion is adequate if it is “thorough and contemporaneous,” considers the veteran’s prior medical examinations and treatment, and “describes the disability... in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Further, a “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the Board finds that the VA examiner did not sufficiently address the second element of secondary service connection – namely, aggravation. Thus, the July 2016 examination report is inadequate for rating purposes and a remand is required for a new medical examination and opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (stating that a medical opinion that focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition). Accordingly, this claim is REMANDED for the following action: Arrange for the Veteran to undergo a VA examination for rhinitis by an appropriate clinician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician, and the examination report should reflect full consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all results furnished to the examining clinician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should take a detailed history from the Veteran regarding his claimed rhinitis. Then, following examination of the Veteran, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s rhinitis had its onset during the Veteran’s active duty service or is otherwise related or attributable to his service. In responding, the examiner must consider and discuss all in- and post-service medical and other objective evidence, as well as all lay assertions. The examiner is advised that the Veteran is competent to report his symptoms and history. If the Veteran’s lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner is also advised that the absence of evidence of treatment for the claimed disability in the Veteran’s service treatment records should not, standing alone, serve as the basis for a negative opinion.   If the examiner concludes that it is less likely than not that the Veteran’s rhinitis is directly attributable to service, the examiner should provide an opinion, consistent with sound medical principles, as to whether it at least as likely as not (i.e., a 50 percent or greater probability) that rhinitis (a) was caused, OR (b) is or has been aggravated (worsened beyond natural progression) by the Veteran’s service-connected sleep apnea. *In short, opinions are needed concerning direct and secondary service connection, and regarding the latter both in the context of causation AND aggravation. (Continued on the next page)   The examiner is reminded that that merely stating that it is his/her opinion that rhinitis was not caused or aggravated by the Veteran’s service-connected sleep apnea is not sufficient. An explanation is required that takes into account the record and pertinent medical principles and the examiner’s rationale should include citation to pertinent evidence and/or medical principles relied upon to form that opinion. If an opinion cannot be made without resorting to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Keith W. Allen Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel