Citation Nr: 20002017 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 17-22 251 DATE: January 9, 2020 ORDER New and material evidence having been received, the claim for service connection for sinusitis is reopened. Service connection for sinusitis and rhinitis is granted. FINDINGS OF FACTS 1. In an April 2010 decision, the RO denied entitlement to service connection for sinusitis. The Veteran did not appeal. 2. The evidence added to the record since the April 2010 RO decision was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for sinusitis. 3. The Veteran’s sinusitis and rhinitis are etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The April 2010 rating decision that denied entitlement to service connection for sinusitis is final. 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for sinusitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for sinusitis and rhinitis are met. 38 U.S.C. §§ 1110, 1131, 1507 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to May 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision. The Veteran testified before the undersigned in November 2019. A transcript of the hearing is associated with the claims file. The evidence in the record suggests that the Veteran has been diagnosed with more than one sinus condition; therefore, the Board will broadly construe the issue as a claim for service connection for a sinus disability however diagnosed. The issue has been recharacterized accordingly as noted on the title page. See Clemons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000).   1. New and material evidence having been received, the claim for service connection for sinusitis is reopened. The Veteran petitions to reopen his previously denied service connection claim for sinusitis. For the following reasons, the Board finds that reopening is warranted. Service connection for sinusitis was previously denied in an April 2010 rating decision because the RO found that the condition was not incurred in or aggravated by the Veteran’s military service. The Veteran was notified of the April 2010 decision and his appellate rights in a letter dated April 7, 2010, but he did not initiate an appeal within one year of notification of the decision. Accordingly, the April 2010 rating decision is final. See 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a). The new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the April 2010 rating decision, a new VA examination with an opinion for the Veteran’s claim was obtained in December 2016. There is also a June 2015 Disability Benefits Questionnaire (DBQ) of record diagnosing the Veteran with chronic sinusitis. The Board finds that this evidence is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). As noted above, the credibility of the evidence is also presumed. Therefore, the claim is reopened. 2. Service connection for sinusitis and rhinitis is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b) (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that his sinus disability had its onset during his active service. A review of the service treatment records reveals an April 1988 Dental Health Questionnaire reflects that the Veteran reported “Yes” in response to sinus problems. A December 1992 service treatment record notes that the Veteran had a history of sinusitis. A February 1998 Dental Health Questionnaire shows the Veteran reported “Don’t Know” in response to sinus problems. Furthermore, he was seen numerous times during active service for nasal and sinus symptoms, which included treatments for sinusitis. His February 2002 Report of Medical History shows that the Veteran reported sinusitis. The report notes that the Veteran had frequent complaints of nasal congestion and that he experienced itchy and watery eyes. The report also notes that the Veteran had been treated for sinusitis, and that he had experienced chronic nasal congestion. Finally, the report documents the comment, “Suspect rhinitis.” Post service, a June 2015 DBQ, diagnosed the Veteran with chronic sinusitis and allergic rhinitis. Furthermore, a July 2009 treatment note reports that the Veteran experiences chronic recurring sinusitis symptoms that started during active duty. The Veteran was afforded a VA examination in December 2016, and a Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ was completed. The DBQ noted diagnoses of allergic rhinitis and an episode of acute sinusitis that resolved with no sequela. The examiner provided a negative opinion with respect to direct service connection and chronic sinusitis and provided a rationale stating that the Veteran did not have a diagnosis of chronic sinusitis. The Board declines to accept this opinion because although the examiner found that the Veteran’s sinusitis was acute, the medical record, as highlighted above, suggests otherwise. Furthermore, the examiner also did not elicit and document a complete history of the Veteran’s subjective symptoms within the examination report, which could be useful in establishing a chronicity of symptoms. The Board further observes that the December 2016 VA examiner did not comment on the June 2015 diagnosis of chronic sinusitis in light of the finding that the Veteran’s sinusitis had been an acute condition that resolved without sequela. Finally, although the examiner diagnosed the Veteran with allergic rhinitis, no opinion with supporting rationale was offered with respect to that diagnosis. As a result, based on the foregoing, the Board concludes that the Veteran’s sinusitis and rhinitis originated during his active service. The Board finds that the Veteran’s statements that he has experienced chronic recurring sinus symptoms that started during active duty to be competent and credible. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). For example, the July 2009 treatment note documenting that the Veteran has experienced chronic recurring sinusitis symptoms since active service is supported by the Veteran’s service treatment records, which document a long history of such symptoms, and the contemporaneous medical record, which continues to show diagnoses of sinusitis and rhinitis. Accordingly, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for sinusitis and rhinitis is warranted. 38 U.S.C. § 5107 (b) (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.