Citation Nr: 20028820 Decision Date: 04/27/20 Archive Date: 04/27/20 DOCKET NO. 17-42 646 DATE: April 27, 2020 ORDER The previously denied claim of entitlement to service connection for allergies (diagnosed as allergic rhinitis) is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for allergies (diagnosed as allergic rhinitis) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to allergies, is remanded. FINDINGS OF FACT 1. In a November 2015 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina denied service connection for allergies (diagnosed as allergic rhinitis); the RO mailed notification of its decision and of the Veteran’s appellate rights to his address of record. 2. The Veteran did not initiate an appeal of the RO’s November 2015 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. New evidence since the time of the RO’s November 2015 decision, when considered with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran’s claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s November 2015 decision denying service connection for allergies (diagnosed as allergic rhinitis) is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim for service connection for allergies (diagnosed as allergic rhinitis). 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1984 to November 2003, to include service in Southwest Asia. His decorations include the Southwest Asia Service Medal and the Kuwait Liberation Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by a VARO. In January 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In its November 2016 rating decision, the RO found that new and material evidence had been received to reopen the Veteran’s claims for service connection for allergies (diagnosed as allergic rhinitis) and sleep apnea. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board notes that the RO previously denied the Veteran’s claim for service connection for sleep apnea in November 2015 and April 2016 rating decisions. In March 2016 (within a year of the November 2015 rating decision), the Veteran submitted a lay statement from his wife pertaining to his claim for service connection for sleep apnea. In its April 2016 rating decision, the RO considered the Veteran’s claim to be reopened, but confirmed its prior denial. The Board finds that the lay statement constituted new and material evidence pertaining to the Veteran’s claim for service connection for sleep apnea and, as such, that the November 2015 rating decision as it pertains to sleep apnea did not become final. See 38 C.F.R. § 3.156(b). Given that the Veteran submitted a valid notice of disagreement (NOD) in January 2017, within a year of the April 2016 rating decision, his appeal with respect to sleep apnea is most properly viewed as emanating from an original claim, rather than a claim to reopen. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for allergies (diagnosed as allergic rhinitis). The Veteran first filed a claim for service connection for allergies in May 2015. A November 2015 rating decision denied the claim. The RO mailed notification of the decision, and of the Veteran’s appellate rights, by letter dated that same month. In March 2016, the Veteran requested that the RO reconsider his claim of entitlement to service connection for allergies, but he did not submit any new and material evidence. As noted above, he submitted a lay statement from his wife in March 2016, but the statement does not pertain to his claim of service connection for allergies. The RO reconsidered the claim and issued another rating decision in April 2016, confirming its previous denial. The RO mailed notification of the decision, and of the Veteran’s appellate rights, by letter dated in May 2016. In September 2016, the Veteran again requested that the RO reconsider his claim of entitlement to service connection for allergies. He stated that his allergies were worse, and that he had enclosed medical documentation to support his claim. The Board has reviewed the evidence submitted, but notes that it is duplicative, and that it was previously considered by the RO in its November 2015 rating decision. No new and material evidence was received during the one-year period following mailing of notice of the November 2015 decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s November 2015 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 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, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 11 (2010). Here the Board finds that new and material evidence has been received with respect to the claimed condition. In February 2020, the Veteran submitted a letter and a disability benefits questionnaire (DBQ) from a private treatment provider. This evidence relates to whether there is a link between a current disability and an in-service incurrence, which relates to a previously unestablished fact and, when its credibility is presumed, raises a reasonable possibility of substantiating the claim for service connection for allergies (diagnosed as allergic rhinitis). It is therefore new and material. The claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for allergies (diagnosed as allergic rhinitis) is remanded. The Veteran contends that his allergies were incurred in service. He contended in a September 2016 statement in support of claim that he did not have the condition prior to entering service, and he stated in his January 2017 NOD that he developed allergic rhinitis while in the Gulf War from being around oil burn pits. At his January 2020 hearing, he indicated he was also exposed to sand and windstorms during the first Gulf War, and that he had respiratory attacks during that time frame. The Veteran also testified that he had allergies prior to service, but that they were under control with medication. He added that exposure to burn pits and oil field fires impacted his breathing and caused coughing and sneezing, that there was always dust in the air, and that most of the time he kept his face wrapped up. Finally, the Veteran testified that the doctors who treat him have stated that his allergy issues and his sleep apnea are correlated. The Veteran was afforded a VA Gulf War examination in October 2015 in connection with his claim. The examiner diagnosed allergic rhinitis, noting the date of diagnosis as 2013. She noted that the Veteran was stationed in Saudi Arabia from November 1998 to November 1999, and that he reported being exposed to blowing sand and dust. The examiner offered a negative nexus opinion, reasoning that the Veteran did not indicate any sinus/rhinitis, or allergic symptoms in a January 1999 post-deployment health questionnaire. She opined that his rhinitis was not due to service in Southwest Asia or the result of exposure to environmental hazards, and that there was no evidence in his service treatment records (STRs) that provided a nexus of the claimed condition due to a specific or aggregate of exposure in Southwest Asia. She also stated that there was no evidence to support chronicity of the claimed condition during military service. The Board finds that the October 2015 examiner did not adequately cite to the record or address the Veteran’s lay contentions. After reviewing the claims file, the Board is unable to find any records which indicate that the Veteran has a current diagnosis of allergic rhinitis. While post-service medical records indicate that the Veteran has seasonal allergies for which he is prescribed medications, it is unclear whether he has a diagnosis of a chronic allergic disability, to include allergic rhinitis. Additionally, the examiner did not address the Veteran’s contention that his allergies were incurred in service generally, aside from his contention that they first developed in Southwest Asia. Still further, the examiner did not address the Veteran’s contention that there is a correlation between his allergic rhinitis and his sleep apnea. Finally, she identified the post-deployment questionnaire as being from January 1999, when it is in fact from November 1999. Under the circumstances, the Board will seek an addendum opinion. In February 2020, the Veteran submitted a letter and DBQ from his private treatment provider, S. A., M.D. Dr. A. stated that he had been asked to write a statement in support of the Veteran’s claim that his sleep apnea was secondary to his long history of chronic rhinitis. He stated that he personally reviewed the Veteran’s medical records and noted his military service, to include recurrent episodic treatment for rhinitis and nasal congestion. He added that prior to the Veteran’s diagnosis of OSA in 2015, he experienced recurrent episodic treatment for rhinitis and nasal congestion and that he had been treated for many years. He further stated that prior to enlistment into military service the Veteran did not exhibit signs or symptoms of chronic rhinitis, and that the condition had insidious onset during the course of his military career. The Board finds the February 2020 letter and DBQ from Dr. A. inadequate, at present, to support of an award of service connection. Dr. A.’s findings and conclusions are inconsistent with the rest of the medical evidence of record, which is silent for any treatment, complaints, or diagnosis of allergic, chronic, or even acute rhinitis. None of the available medical records indicate that the Veteran has a long history of chronic rhinitis, as indicated by Dr. A. His statement that the Veteran’s records include recurrent episodic treatment for rhinitis and nasal congestion is also inconsistent with the Veteran’s STRs. The Veteran’s STRs show treatment for upper respiratory infections in May 1985, July 1988, February 1995, and January 2003. They also show he complained of a cough and sneezing in December 1998, was diagnosed with pharyngitis in January 2001, with bronchitis in February 2001, and with post-nasal drip in January 2003. While acknowledging that Dr. A. might have been referring to these STRs when he stated that the Veteran has had recurrent episodic treatment for rhinitis and nasal congestion, the Board finds Dr. A.’s statement to be at best unclear. STRs and post-service medical treatment records are devoid of any mention of rhinitis. Notably, Dr. A.’s own records do not indicate a diagnosis or treatment for rhinitis or nasal congestion. The Board notes that the most recent treatment records from Dr. A. in the claims file are from July 2015. On remand, efforts should be made to procure updated records. The Board also notes that the most recent VA treatment records in the file are from April 2019. Updated records of any VA treatment should also be procured. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Entitlement to service connection for OSA, to include as secondary to allergies, is remanded. The Veteran contends that his OSA was incurred in or caused by service. At his February 2020 hearing, the Veteran testified that he did not have problems sleeping prior to service, that they started in service, and that they started while he was deployed to the Gulf region with all of the respiratory attacks. He added that he was exposed to burn pits and oil fields and that he started to have breathing issues. As noted above, he also raised the theory that his allergic rhinitis and his OSA were correlated. In a March 2016 lay statement, the Veteran’s wife stated that she married the Veteran in 1986 and had observed his sleeping patterns since that time. She noted that she observed abnormal sleeping patterns almost immediately, including that the Veteran would stop breathing for several seconds and then let out a small gasp and begin to breathe again. She stated that this happened consistently and frequently throughout the night, and that his abnormal sleeping patterns had persisted since she first observed them and had continued to today. The October 2015 VA Gulf War examination addressed the Veteran’s claim of entitlement to service connection for OSA. The examiner noted a diagnosis of OSA in May 2015 but offered a negative nexus opinion. She reasoned that the Veteran was diagnosed with OSA approximately twelve years after separation from the military. She recorded the important risk factors of OSA as advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities, with additional risk factors identified in some studies that include smoking, nasal congestion, menopause, and family history. She noted that the Veteran did not indicate any sleep issues on his January 1999 post-deployment health questionnaire or on his periodic physicals. She opined that his OSA was not due to service in Southwest Asia or as a result of exposure to environmental hazards. The Board finds the October 2015 VA Gulf War examination as it pertains to the Veteran’s claim for entitlement to service connection for OSA inadequate. While noting various general risk factors for OSA, the examiner did not apply them to the Veteran’s case specifically. Additionally, she identified the post-deployment questionnaire as being from January 1999, when it is in fact from November 1999. Still further, the examiner was unable to consider the Veteran’s theory that his OSA is secondary to his rhinitis, which was raised subsequent to the examination. She was also unable to address the March 2016 lay statement of the Veteran’s wife, as it was also submitted subsequent to the examination. Under the circumstances, the Board will seek an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has also considered the February 2020 letter and DBQ of Dr. A., but finds that they are inadequate for an award of service connection for OSA at present. Dr. A. opined that the Veteran did not exhibit signs or symptoms of OSA prior to enlistment, and that it had insidious onset during the course of the Veteran’s military career. He also opined that it was more likely than not that the Veteran’s OSA was due to the Veteran’s long history of rhinitis, and that in his personal experience and in medical literature, it is known that OSA is due to obstruction in the upper airways and that chronic rhinitis causes obstruction of the upper airways. At the outset, the Board notes that the Veteran is not currently service-connected for rhinitis; thus, service connection for OSA as secondary to rhinitis cannot, at present, be established. Additionally, Dr. A.’s positive nexus opinion regarding OSA is based on the premise that the Veteran has a long history of treatment for chronic rhinitis, both during and after service. As noted above, that premise is inconsistent, at present, with the Veteran’s STRs and with available post-service medical treatment records. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, updated records from Dr. A. at Pinehurst Medical Clinic in Fayetteville, North Carolina, and any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA and/or service department facility treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA examiner who evaluated the Veteran in October 2015. The examiner should review the expanded record and to prepare an addendum opinion. Specifically, the examiner should be asked to clarify where she derived the information used in her October 2015 report, particularly with respect to her finding that the Veteran was diagnosed with allergic rhinitis in 2013. If she is unable to identify where she derived that information, she should offer an addendum opinion with respect to the nature and etiology of the Veteran’s allergies, taking into account only that evidence which is actually or constructively of record. In so doing, the examiner should consider and address the various STRs indicating treatment for upper respiratory infections. She should also consider the November 1999 post-deployment health questionnaire and the February 2020 DBQ from Dr. A. The examiner should also review the expanded record and prepare an addendum regarding the Veteran’s claim of entitlement to service connection for OSA. After reviewing the expanded record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s OSA had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider the March 2016 lay statement of the Veteran’s wife. If the examiner finds that the Veteran has allergies (to include allergic rhinitis) that are service related, she should also provide an opinion as to whether it is at least as likely as not that the Veteran’s OSA has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by any service-connected allergic disability, to include allergic rhinitis. In so doing, the examiner should consider the February 2020 DBQ from Dr. A. If the October 2015 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete rationale for all opinions expressed must be provided. 4. If, as a result of the development sought in paragraph (3), the examiner identifies evidence of a diagnosis of allergic rhinitis in 2013, undertake any development necessary to obtain that evidence and associate it with the claims file. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.