Citation Nr: 20004545 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-50 866 DATE: January 21, 2020 ORDER New and material evidence having been introduced, the claim for entitlement to service connection for a sinus condition is reopened. REMANDED Entitlement to service connection for a sinus condition is remanded. Entitlement to service connection for a headache condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a gastrointestinal condition is remanded. Entitlement to service connection for a low back condition is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a sinus disorder was denied in a March 2003 rating decision. The Veteran was informed of that and her appellate rights, but did not appeal or submit new and material evidence with respect to either rating decision within one year of issuance. 2. Evidence received into the record since the March 2003 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a sinus disorder. CONCLUSION OF LAW 1. The March 2003 rating decision denying entitlement to service connection for a sinus disorder is final. 38 U.S.C. § 1705 (c); 38 C.F.R. § 20.1103 (2018). 2. The evidence received since the March 2003 rating decision is new and material, and the claim of entitlement to service connection for a sinus disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to February 1994, and from February 1996 to March 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether new and material evidence has been introduced to reopen a claim for entitlement to service connection for a sinus condition Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran’s claim for service connection for a skin disorder was originally denied in March 2003. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the decision became final. Since that time, the Veteran has advanced additional evidence, including medical treatment records and lay statements in support of her claim that shed additional light on her service and the nature of her condition. The Board finds this evidence “new,” because it postdates the aforementioned rating decisions. The Board also finds the new evidence “material,” because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claim. Consequently, the claim of service connection for a sinus disorder is reopened. REASONS FOR REMAND 1. The claims for entitlement to service connection for a sinus condition, a headache condition, a bilateral knee condition, a gastrointestinal condition, and a low back condition are remanded. The Veteran’s service connection claims require additional development before they can be finally adjudicated. First, with respect to the Veteran’s low back, gastrointestinal condition, and knee condition, service treatment records reflect in-service complaints related to each, although they do not reflect diagnoses of chronic conditions, and the record does not as yet objectively demonstrate continuity of symptomatology. The VA examiner with whom the Veteran met in August 2018 made note of these in-service episodes, but explained that in each case, there is no evidence of an ongoing chronic condition since service. In so concluding, the Board does not believe the examiner has afforded due consideration to the Veteran’s lay statements regarding continuity of symptomatology, nor furnished any alternative provenance for the Veteran’s current symptoms. Finally, the Veteran has averred in a November 2018 statement in support of her claims that she does not believe her VA examinations to have been adequate, explaining that her examiner admitted to her he had not had the opportunity to review her medical records prior to her examination. The Board acknowledges the examiner’s notation that records were reviewed; however, the timing of their review, assuming that review took place after the examinations, deprived the examiner of the opportunity to address the questions noted above with the Veteran at the examination. Thus, the Board finds the examinations inadequate; on remand, new VA examinations must be conducted that cure the deficiencies noted herein. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, schedule the Veteran for a VA examination to explore the etiology of her sinus disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Please identify by medical diagnosis the Veteran’s sinus disorder or disorders. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 3. Schedule the Veteran for a VA examination to explore the etiology of her headache disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Please identify by medical diagnosis the Veteran’s headache disorder or disorders. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 4. Schedule the Veteran for a VA examination to explore the etiology of her knee disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Please identify by medical diagnosis any disorder of either knee that may be present. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 5. Schedule the Veteran for a VA examination to explore the etiology of her gastrointestinal disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Please identify by medical diagnosis the Veteran’s gastrointestinal disorder or disorders. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 6. Schedule the Veteran for a VA examination to explore the etiology of her low back disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Please identify by medical diagnosis the Veteran’s low back disorder or disorders. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 7. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues remaining on appeal. If any benefit sought on appeal is not granted, the Veteran and her representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Zahraie, Associate Counsel 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.