Citation Nr: 1815667	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO.  14-16 523	)	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 a claim of entitlement to service connection for recurrent epistaxis with a loss of the sense of smell (hyposmia).  
 
2.  Entitlement to service connection for recurrent epistaxis with hyposmia.  
 
 
REPRESENTATION
 
Appellant represented by:  The American Legion
 
 
ATTORNEY FOR THE BOARD
 
Harold A. Beach, Counsel
 


INTRODUCTION
 
The Veteran served on active duty from February 1988 to March 1992.
 
This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  
 
The issue of entitlement to service connection for recurrent epistaxis with hyposmia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
 
 
FINDINGS OF FACT
 
1.  In an unappealed September 2005 rating decision VA denied entitlement to service connection for recurrent epistaxis, claimed as recurring nosebleeds with a loss of the sense of smell.  
 
2.  Evidence associated with the record since the RO's September 2005 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for recurrent epistaxis with hyposmia. 
 
 
CONCLUSIONS OF LAW
 
1. The September 2005 rating decision denying entitlement to service connection for recurrent epistaxis, claimed as recurring nosebleeds with a loss of the sense of smell, is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
 
2.  New and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for recurrent epistaxis with hyposmia.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
 
 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
 
A review of the record discloses that this is not the Veteran's first claim of entitlement to service connection for recurrent epistaxis.  In a September 2005 rating decision VA noted that the Veteran had nosebleeds prior to service but that they had not been aggravated during service.  The Veteran was notified of that decision, as well as his appellate rights, however,  he did not file a notice of disagreement with which to initiate an appeal.  Therefore, that decision became final under the law and regulations then in effect.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  In September 2011, the Veteran filed an application to reopen his claim of service connection for epistaxis.  
 
Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered.  38 U.S.C. § 7105.  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 which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.
 
When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156.  Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality.  Justus v. Principi, 3 Vet. App. 510, 512 (1992).  

New evidence means existing evidence not previously submitted to VA 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. 
 
Evidence added to the record since the September 2005 rating decision includes a VA physician's opinion, dated August 22, 2013.  The VA physician opined that the Veteran's pre-service epistaxis had more likely than not been aggravated by his use of non-steroidal anti-inflammatory drugs for musculoskeletal problems inservice and elevated blood pressure readings associated with his service-connected posttraumatic stress disorder.  Such evidence is new in the sense that it has not previously been before the VA.  It is also material in that it relates to an unestablished fact necessary to substantiate the claim.  It is neither cumulative nor redundant of the evidence of record in September 2005, and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for recurrent epistaxis.  Therefore, it is sufficient to reopen the claim.  To that extent, the appeal is granted.
 
 
ORDER
 
New and material evidence having been presented, the claim of entitlement to service connection for recurrent epistaxis, with a loss of the sense of smell, is reopened.  
 
 
REMAND
 
As new and material evidence has been presented, the Board may proceed to evaluate the merits of the claim only after insuring that the duty to assist the Veteran in the development of his claim has been fulfilled.  See Elkins v. West, 12 Vet. App. 209 (1999).
 
The September 2005 rating decision shows that the available service treatment records were substantially more complete than those which currently are associated with the electronic claims file.  For example, only the back page of the Veteran's medical history from his service entrance examination is currently on file.  Moreover, unlike the state of the paper claims file in September 2005, the current electronic claims file does not contain the report of the Veteran's March 1992 service separation examination.  As such, the Board finds further development to be required.
 
In addition, the Veteran has not been examined by VA to determine if the Veteran's recurrent epistaxis is a symptom of a disability or a disability in and of itself.  
 
In light of the foregoing, additional development of the record is warranted prior to further appellate consideration.  Accordingly, the case is REMANDED for the following action:
 
1.  Have the Veteran's paper claims file rescanned to ensure that all available service treatment records and the full reports of his service entrance and separation examinations are associated with the electronic claims file.  All efforts to secure any missing service treatment records must be carefully documented.
 
2.  When the foregoing action is completed, schedule the Veteran for an examination by an otolaryngologist to determine the nature and etiology of any diagnosed hyposmia and epistaxis.  The Veteran's VBMS and Virtual VA files, as well as a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 

Following the examination the examiner must address whether the appellant currently suffers from hyposmia, and if so whether it is at least as likely as not that hyposmia is related to the appellant's active duty service.  

The examiner must also address whether the appellant currently suffers from recurrent epistaxis.  If so, the examiner must state whether epistaxis is a symptom of a disability or a disability in and of itself.  The examiner must further address the nature of any relationship between hyposmia and epistaxis.  

If recurrent epistaxis is a distinct disability the examiner must opine whether it is at more likely than not that the disorder had its onset prior to service.  If so, is it at least as likely as not that epistaxis was aggravated inservice?   With respect to aggravation of a pre-service condition, the examiner must address the VA physician's opinion of August 22, 2013.  

If epistaxis is a distinct disability but did not exist prior to service, is it at least as likely as not that epistaxis is related to the Veteran's active duty service.  If not, the examiner must opine whether it is at least as likely as not that epistaxis is caused or aggravated by a disability for which service connection has already been established, to include due to a service connected musculoskeletal disorder or posttraumatic stress disorder.   If the examiner found that hyposmia is related to service the examiner must also address whether epistaxis is caused or aggravated by hyposmia.  

A complete and fully explanatory rationale must be provided for any opinion offered.  If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

3.  Then, after undertaking any other indicated development conduct a de novo review of the record and adjudicate the issue of entitlement to service connection for recurrent epistaxis with hyposmia.  
 
If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a supplemental statement of the case and afforded an opportunity to respond.  Thereafter, if in order, the case should be returned to the Board for further appellate action. 
 
By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue.  
 
The Veteran need take no action unless he is notified to do so.  However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the AOJ.  Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. §§ 5109B, 7112 (2012).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs