Citation Nr: 1808100 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-17 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for a bilateral ear condition. 4. Entitlement to an acquired psychiatric disorder, to include PTSD. 5. Entitlement to an evaluation in excess of 10 percent for chronic sinusitis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had an active period of honorable service from February 1991 to February 1997, and a period of service from February 1997 to December 2002, where he was discharged under other than honorable conditions, which serves as a bar for VA benefits purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California. The Veteran appeared at a videoconference hearing before the undersigned in August 2017. A transcript of the hearing is of record. The issues of entitlement to service connection for asthma; entitlement to service connection for a bilateral ear condition; and the newly reopened claim of service connection for PTSD, now expanded to an acquired psychiatric disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The RO denied entitlement to service connection for PTSD in June 2004. The Veteran was notified of this decision that same month and did not perfect his appeal nor was evidence received within the proscribed period which would have allowed the claim to remain open. 2. Evidence received since the denial of entitlement to service connection for PTSD raises a reasonable possibility of substantiating the claim. 3. Throughout the course of the appeal, near constant sinusitis is characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge, with almost continuous use of anti-biotics has been demonstrated. CONCLUSIONS OF LAW 1. The June 2004 rating determination denying service connection for PTSD became final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of service connection for PTSD has been received. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). 3. For the entire appeal period, a 50 percent rating for the Veteran's chronic sinusitis is warranted. 38 U.S.C. §§ 1155, 5013, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's original claims folder has been deemed unavailable; his current record is a rebuilt folder. The rebuilt folder does not appear to contain all service treatment records from his first period of service. VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). New and Material Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a). "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." Id. The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id. In a June 2004 rating determination, the RO denied the Veteran's claim for PTSD noting that although the Veteran was diagnosed in service in February 2002, with PTSD, the period of service from February 1997 to December 2002, was considered dishonorable for VA rating purposes, and any injuries, illnesses or diseases incurred during this period of service were not eligible for service connection. Evidence added to the record subsequent to the denial includes treatment records and reports, and statements and testimony from the Veteran. Treatment records added to the record continue to demonstrate diagnoses of PTSD as well as other psychiatric disabilities. Moreover, in an August 2014 letter from R. L., M.S., MFT, it was indicated that the Veteran's diagnosis of PTSD was based upon physical and emotional abuse incurred from his former spouse between 1996 and 2002. The date of onset reported would be within the period of service that would be eligible for VA benefits. The Veteran has also provided in-depth statements as to the abuse he sustained and the timeframe in which it occurred. The basis for the prior denial was that the onset of the Veteran's PTSD occurred in a period of time that would not allow for payment of VA benefits. The newly added treatment records continue to demonstrate a diagnosis of PTSD with a reported date of onset of 1996, which would be during the Veteran's period of honorable service. The newly received evidence relates to previously unestablished elements of the claim of a current disability and a possible link between the current disability and service, and provides a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the evidence received since the June 2004 rating determination is new and material to reopen service connection for PTSD. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The reopened issue will be addressed in the remand section below. Sinusitis Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran maintains that the symptomatology associated with his sinusitis warrants an evaluation higher than that which is currently assigned. Under Diagnostic Code 6513, a noncompensable disability evaluation is warranted when sinusitis is detected by x-ray only. A 10 percent disability evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The next and highest schedular rating of 50 percent is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. In the note section following the criteria, an incapacitating episode was defined as one requiring bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513 (2017). As it relates to the Veteran's claim for an increased evaluation, the Board notes that the Veteran has undergone several sinus surgeries, to include a nasal septoplasty in July 2010 and functional endoscopic sinus surgery in March 2016, and also that he was scheduled for revision guided sinus surgery, revision septoplasty, and a possible turbinate reduction in the latter part of 2017 based upon treatment records received in conjunction with his claim. Treatment records associated with the Veteran's claim reveal almost monthly treatment for sinusitis from the date he requested his increased evaluation, with antibiotics being issued on almost every occasions. The Veteran has also reported and testified as to having near constant headaches, pain and tenderness of the affected sinus, and purulent discharge. The Veteran has further testified as to missing numerous days from work as a result of his sinusitis and has provided several physician's notes indicating that he has had to miss days of work as a result of his sinusitis. The record also contains numerous diagnoses of acute and chronic sinusitis. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 50 percent evaluation for chronic sinusitis have been met for the entire appeal period. The Veteran has reported that his symptoms are perennial throughout the course of the appeal. Moreover, he has been seen for sinus problems on an almost continuous basis and has been treated with antibiotics on almost every occasion. The Veteran has also reported having headaches throughout the course of the appeal. While treatment records do not note any non-incapacitating episodes, the Board finds the Veteran's reports of having to miss work, which are bolstered by his submission of physician's treatment records showing excused absences, to be credible. Accordingly, and resolving any remaining reasonable doubt in the Veteran's favor, as required, the Board concludes that the requirements for a 50 percent rating are warranted for the Veteran's service-connected sinusitis, which is the maximum schedular rating for sinusitis. ORDER New and material evidence having been received, the petition to reopen the previously denied claim for service connection for PTSD is granted. A 50 percent evaluation for chronic sinusitis is granted. REMAND As it relates to the claim of service connection for fluid in the ears, also claimed as otitis media, the Board notes that the Veteran has indicated that it is his belief that his current fluid in the ear, also claimed as otitis media, is caused and/or aggravated by his service-connected sinusitis. Although the Veteran was afforded a VA examination in August 2013 which provided a medical opinion as to the etiology of the ear disability, indicating it was not related to the Veteran's period of service, and the examiner also checked the box indicating that it was less likely than not caused or aggravated by a service-connected disability, the rationale given as to the secondary service connection claim indicated that exposure to noise did not cause otitis media nor fluid in ears and that fluid in ears and/or otitis was commonly caused by bacterial infection, viral infection, or eustachian tube dysfunction. It did not address what impact, if any, the Veteran's sinusitis had upon the otitis media. Given the foregoing, the Veteran should be afforded a VA examination to determine what relationship, if any, exists between his service-connected sinusitis and any fluid in the ear/otitis media. As to the newly expanded issue of service connection for a psychiatric disorder, to include PTSD, as this matter has been reopened, the Veteran should be afforded a VA examination to determine the etiology of any current psychiatric disorder, to include PTSD, and its relationship, if any, to his period of honorable service from February 1991 to February 1997. As it relates to the claim of service connection for asthma, the Veteran's post-service treatment records contain diagnoses and treatment for asthma. While the Veteran's treatment records for his second period of service, deemed ineligible for VA compensation purposes, contain diagnoses of asthma, the Veteran has testified as to having been treated for asthma during his first period of service. As noted above, it appears that a portion of the Veteran's service treatment records for his period of service are missing through no fault of the Veteran. As such, the Veteran should be afforded a VA examination to determine the etiology of any current asthma, and it relationship, if any, to his first period of service. Accordingly, the case is REMANDED for the following action: 1. As this matter is in remand status, once again attempt to obtain additional service treatment records from all possible sources for the Veteran's first period of service from February 1991 through February 1997. If no further records are found, a report should be prepared detailing what attempts were made, with notice being given to the Veteran along with an opportunity to provide any service treatment records which may be in his possession. 2. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder(s), including PTSD, which may be present. The entire record should be made be available for review by the examiner in conjunction with the examination. The examiner is requested to render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran currently has PTSD related to his period of honorable service from February 1991 to February 1997. If a diagnosis of PTSD is rendered, the examiner should identify the claimed stressor that serves as the basis for the diagnosis of PTSD. Alternatively, if PTSD is not found on examination, the examiner must delineate all diagnoses reached to account for the Veteran's psychiatric symptomatology. The examiner must also express an opinion as to whether any psychiatric disorder(s) found on examination, is/are related to the Veteran's period of honorable service from February 1991 to February 1997. The examiner is advised that the Veteran's period of service from February 1997 to December 2002 may not be used to serve as a basis for his current diagnosis of PTSD or any other psychiatric disability which may be present. Complete detailed rationale must be provided for any opinion that is rendered. 4. Schedule the Veteran for the appropriate VA examination to assist in determining the nature and etiology of any current fluid in the ears/otitis media. The entire record should be made available to the examiner in conjunction with the examination. All necessary tests should be performed. The examiner is requested to identify all current ear disorders. The examiner is requested to offer the following opinions (a) Is it at least as likely as not (50 percent probability or greater) that any current fluid in the ears/otitis media is caused by the service-connected sinusitis? (b) If not, is it at least as likely as not (50 percent probability or greater) that any current fluid in the ears/otitis media is aggravated by the service-connected sinusitis? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for any opinion that is rendered. 5. Schedule the Veteran for the appropriate VA examination to assist in determining the nature and etiology of any current asthma. The entire record should be made available to the examiner in conjunction with the examination. All necessary tests should be performed. The examiner is requested to offer the following opinion: Is it at least as likely as not (50 percent probability or greater) that any current asthma had its onset in or is otherwise related to his first period of service? The examiner is advised that the Veteran's period of service from February 1997 to December 2002 may not be used to serve as a basis for his current diagnosis of asthma which may be present. Complete detailed rationale is requested for any opinion that is rendered. 6. Thereafter, the RO should review the record to ensure that all of the foregoing requested development has been completed. The RO should review the requested examination report to ensure that it is responsive to and in complete compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 7. After the above development has been completed, the RO should readjudicate the remaining issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs