Citation Nr: A20007339 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190812-19298 DATE: April 30, 2020 ORDER Whether new and relevant evidence has been submitted to reopen a previously denied claim for service connection for asthma is granted. Whether new and relevant evidence has been submitted to reopen a previously denied claim for service connection for chronic sinusitis is granted. Whether new and relevant evidence has been submitted to reopen a previously denied claim for service connection for positive purified protein derivative result (PPD) with isonicotinic acid hydrazide (INH) therapy is granted. Whether new and relevant evidence has been submitted to reopen a previously denied claim for service connection for vision loss of the left eye is granted. Whether new and relevant evidence has been submitted to reopen a previously denied claim for service connection for vision loss of the right eye with scleral abrasions is granted. Service connection for a left eye disability characterized by dry eyes and corneal sensitivity is granted. Service connection for a right eye disability characterized by dry eyes and corneal sensitivity is granted. REMANDED Service connection for asthma is remanded. Service connection for chronic sinusitis is remanded. Service connection for positive PPD with INH therapy is remanded. FINDINGS OF FACT 1. A September 1993 rating decision denied service connection for asthma. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. The evidence associated with the file subsequent to the September 1993 rating decision is new and relevant to the issue of entitlement to service connection for asthma. 2. A September 1993 rating decision denied service connection for chronic sinusitis. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. The evidence associated with the file subsequent to the September 1993 rating decision is new and relevant to the issue of entitlement to service connection for chronic sinusitis. 3. A February 2014 rating decision declined to reopen a previously denied claim for entitlement to service connection for positive PPD with INH therapy. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. The evidence associated with the file subsequent to the September 1993 rating decision is new and relevant to the issue of entitlement to service connection for a current lung disability. 4. A February 2014 rating decision declined to reopen a previously denied claim for entitlement to service connection for vision loss of the left eye. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. The evidence associated with the file subsequent to the September 1993 rating decision is new and relevant to the issue of entitlement to service connection for a current disability or the left eye. 5. A February 2014 rating decision declined to reopen a previously denied claim for entitlement to service connection for vision loss of the right eye. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. The evidence associated with the file subsequent to the September 1993 rating decision is new and relevant to the issue of entitlement to service connection for a current disability or the right eye with scleral abrasions. 6. A medical nexus hast been established between an in-service incurrence and a left eye disability characterized by dry eyes and corneal sensitivity. 7. A medical nexus has been established between an in-service incurrence and a right eye disability characterized by dry eyes and corneal sensitivity. CONCLUSIONS OF LAW 1. New and relevant evidence sufficient to readjudicate the claim for entitlement service connection for asthma has been received. 38 U.S.C. §§ 101, 5108; 38 C.F.R. § 3.2501. 2. New and relevant evidence sufficient to readjudicate the claim for entitlement service connection for chronic sinusitis has been received. 38 U.S.C. §§ 101, 5108; 38 C.F.R. § 3.2501. 3. New and relevant evidence sufficient to readjudicate the claim for entitlement service connection for positive PPD with INH therapy has been received. 38 U.S.C. §§ 101, 5108; 38 C.F.R. § 3.2501. 4. New and relevant evidence sufficient to readjudicate the claim for entitlement service connection for vision loss of the left eye has been received. 38 U.S.C. §§ 101, 5108; 38 C.F.R. § 3.2501. 5. New and relevant evidence sufficient to readjudicate the claim for entitlement service connection for vision loss of the right eye with scleral abrasions has been received. 38 U.S.C. §§ 101, 5108; 38 C.F.R. § 3.2501. 6. The criteria for service connection for a left eye disability characterized by dry eyes and corneal sensitivity have been met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 7. The criteria for service connection for a right eye disability characterized by dry eyes and corneal sensitivity have been met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Air Force from June 1980 to November 1992. This appeal arises from an August 2019 notice of disagreement (NOD) appealing a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) issued in August 2019. In the August 2019 NOD, the Veteran chose the Direct Review docket. Therefore, the Veteran does not desire a personal hearing before the Board, and the record on appeal closed on August 5, 2019; the date the Veteran was notified of the August 2019 decision. New and Relevant Evidence “If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record.” 38 U.S.C. § 5108(a). “New evidence is evidence not previously part of the actual record before agency adjudicators.” 38 C.F.R. § 3.2501. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim... [and] includes evidence that raises a theory of entitlement that was not previously addressed.” Id. 1. Whether new and relevant evidence has been received to reopen a previously denied claim for service connection for asthma is granted. At issue is whether or not new and relevant evidence has been received to reopen a previously denied claim for service connection for asthma. New and relevant evidence having been received, the Veteran’s claim for service connection for asthma is deemed reopened. The Veteran first filed for service connection for asthma in December 1992, and, in September 1993, the RO denied the Veteran’s claim. The RO noted that the Veteran had reported a history of asthma on November 22, 1982, but that, at the time, the Veteran was asymptomatic. The RO also indicated that a VA examiner indicated that the Veteran’s chest was currently normal. The RO concluded that the evidence did not establish that an asthmatic condition began in-service. The decision became final one year later after the Veteran failed to file additional evidence or a NOD within one year of notification of the decision. The Veteran filed a supplemental claim in June 2019, and, in August 2019, the RO found that new and relevant evidence to reopen the Veteran’s claim had not been submitted, because the evidence of record did not establish that asthma began in-service or continuity of symptomology since separation from service. The Veteran filed a NOD challenging the decision in August 2019. Prior to the December 1992 rating decision, the medical evidence of record – although establishing that the Veteran had a history of asthma – did not establish that the Veteran was experiencing either asthma or a condition with similar symptoms during the pendency of the claim. Medical evidence received by VA since the 1992 rating decision includes recent treatment records which indicate that the Veteran was being prescribed an albuterol inhaler. Albuterol inhalers are prescribed to treat asthma or conditions that present similar symptoms. See Medline Plus Medical Encyclopedia, https://medlineplus.gov/druginfo/meds/a6821 45.html (last visited April 27, 2020). In August 2016 moreover, the results of a sleep study indicated that the Veteran was manifesting spontaneous arousals and suggested that the Veteran be tested for asthma as a possible cause of this symptomology. This evidence is new, because it was not contained within the record prior to December 1992. This evidence is relevant, because it is probative of whether or not the Veteran manifested asthma or a disability with similar symptomology during the pendency of the appeal. A current disability or a disability during the pendency of the appeal is the cornerstone for a claim for service connection. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). 2. Whether new and relevant evidence has been received to reopen a previously denied claim for service connection for chronic sinusitis is granted. At issue is whether or not new and relevant evidence has been received to reopen a previously denied claim for service connection for chronic sinusitis. New and relevant evidence having been received, the Veteran’s claim for service connection for chronic sinusitis is deemed reopened. The Veteran first filed for service connection for asthma in December 1992, and, in September 1993, the RO denied the Veteran’s claim. The RO noted that the Veteran had been treated for sinusitis in June 1990, but that the results of a recent VA examination indicated that the Veteran’s sinuses were without tenderness to palpation. The RO concluded that the Veteran’s sinusitis had resolved. The decision became final one year later after the Veteran failed to file additional evidence or a NOD within one year of notification of the decision. The Veteran filed a supplemental claim in June 2019, and, in August 2019, the RO found that new and relevant evidence to reopen the Veteran’s claim had not been submitted, because the evidence of record did not establish that chronic sinusitis began in-service or continuity of symptomology since separation from service. The RO did, however, make a favorable finding that the acute complaints of frontal sinusitis that the Veteran made on June 21, 1990 constituted a qualifying event, disease, or injury during a period of service. The Veteran filed a NOD challenging the decision in August 2019. Prior to the December 1992 rating decision, the medical evidence of record – although establishing that the Veteran sought treatment for an acute incident of sinusitis during service – did not establish that the Veteran was experiencing either sinusitis or symptoms associated with sinusitis during the pendency of the claim. Medical evidence received by VA since the 1992 rating decision includes recent VA treatment records that the Veteran manifested nasal symptoms severe enough to refer the Veteran to a private specialist in May 2018. This evidence is new, because it was not contained within the record prior to December 1992. This evidence is relevant, because it is probative of whether or not the Veteran manifested chronic sinusitis or a disability with similar symptomology during the pendency of the appeal. A current disability or a disability during the pendency of the appeal is the cornerstone for a claim for service connection. See Degmetich. 3. Whether new and relevant evidence has been received to reopen a previously denied claim for service connection for positive PPD with INH therapy is granted. At issue is whether or not new and relevant evidence has been received to reopen a previously denied claim for service connection for positive PPD with INH therapy. New and relevant evidence having been received, the Veteran’s claim for service connection for positive PPD with INH therapy is deemed reopened. The Veteran first filed for service connection for positive PPD with INH therapy in December 1992, and, in September 1993, the RO denied the Veteran’s claim. The RO noted that the Veteran did undergo INH therapy after a positive PPD in April 1983. The RO denied the Veteran’s claim, because positive PPD is a laboratory finding and, therefore, not a disability; and the Veteran did not have tuberculosis or another lung disability. The decision became final one year later after the Veteran failed to file additional evidence or a NOD within one year of notification of the decision. The Veteran filed a claim to reopen the previously denied claim in August 2013, and, in February 2014, the RO found that new and material evidence sufficient to reopen the Veteran’s claim had not been received, because the Veteran had failed to submit evidence substantiating that the Veteran was manifesting an active disease; rather than a merely a history of a positive PPD. The decision became final one year later after the Veteran failed to file additional evidence or a NOD within one year of notification of the decision. The Veteran filed a supplemental claim in June 2019, and, in August 2019, the RO found that new and relevant evidence to reopen the Veteran’s claim had not been submitted, because a positive PPD was not a disability for VA purposes; and the evidence did not establish that the Veteran had a current lung disability. The Veteran filed a NOD challenging the decision in August 2019. Prior to the February 2014 rating decision, the medical evidence of record – although establishing that the Veteran underwent INH therapy after a positive PPD – did not establish that the Veteran was experiencing either a lung disability during the pendency of the claim. Medical evidence received by VA since the 1992 rating decision includes recent treatment records which indicate that the Veteran was being prescribed an albuterol inhaler. Albuterol inhalers are prescribed to treat lung disabilities. See Medline Plus Medical Encyclopedia, https://medlineplus. gov/druginfo/meds/a682145.html (last visited April 27, 2020). This evidence is new, because it was not contained within the record prior to February 2014. This evidence is relevant, because it is probative of whether or not the Veteran manifested a lung disability during the pendency of the appeal. A current disability or a disability during the pendency of the appeal is the cornerstone for a claim for service connection. See Degmetich 4. 5. Whether new and relevant evidence has been received to reopen a previously denied claim for service connection for vision loss, left eye remains is granted, and whether new and relevant evidence has been received to reopen a previously denied claim for service connection for vision loss, right eye with scleral abrasions is granted. At issue is whether or not new and relevant evidence has been received to reopen previously denied claims for service connection for bilateral vision loss with scleral abrasions. New and relevant evidence having been received, the Veteran’s claim for service connection for bilateral vision loss with scleral abrasions is deemed reopened. The Veteran first filed for service connection for bilateral vision loss with scleral abrasions in December 1992, and, in September 1993, the RO denied the Veteran’s claim. The RO noted that fuel and soap were splashed in the Veteran’s eyes during his period of service. The RO denied the Veteran’s claim, because a recent VA examination did not indicate that the Veteran had vision loss or a current eye disability. The decision became final one year later after the Veteran failed to file additional evidence or a NOD within one year of notification of the decision. The Veteran filed a claim to reopen the previously denied claims in August 2013, and, in February 2014, the RO found that new and material evidence sufficient to reopen the Veteran’s claims had not been received, because the Veteran’s vision difficulties were consistent with natural aging. The decision became final one year later after the Veteran failed to file additional evidence or a NOD within one year of notification of the decision. The Veteran filed a supplemental claim in June 2019, and, in August 2019, the RO found that new and relevant evidence to reopen the Veteran’s claim had not been submitted, because the evidence of record did not establish that vision problems began in-service or continuity of symptomology since separation from service. The RO did, however, make a favorable finding that the Veteran was splashed with hazardous liquids, including fuel and battery acid, in his eyes multiple times throughout his period of service. The Veteran filed a NOD challenging the decision in August 2019. Prior to the February 2014 rating decision, the medical evidence of record – although establishing that the Veteran sustained acute injuries to both of his eyes and manifested current eye disabilities – did not indicate that the Veteran’s eye disabilities related to a period of service; but were rather part of the natural aging process. Medical evidence received by VA since the February 2014 rating decision includes recent treatment records which indicate that the Veteran is still manifesting multiple eye disabilities. This evidence is new, because it was not contained within the record prior to February 2014. This evidence is relevant, because it is probative of whether or not the Veteran manifested an eye disability during the pendency of the appeal. A current disability or a disability during the pendency of the appeal is the cornerstone for a claim for service connection. See Degmetich. The Board notes that the new and relevant evidence standard, unlike the previous standards for reopening claims for service connection, does not require that additional evidence related to a previously unestablished fact. (CONTINUED ON NEXT PAGE) 6. 7. Service connection for a left eye disability characterized by dry eyes and corneal sensitivity is granted, and service connection for a right eye disability characterized by dry eyes and corneal sensitivity is granted. At issue is whether the Veteran is entitled to service connection for bilateral eye disabilities. The weight of the evidence indicates that the Veteran is entitled to service connection a bilateral eye disability characterized by dry eyes and corneal sensitivity. The weight of the evidence indicates that the Veteran is not entitled to service connection for any other eye disability to include vision loss and lattice retinal degeneration. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like diseases of the nervous system, when manifested to a compensable degree within a year of separation from service or there is continuity of symptomology since separation from service. 38 C.F.R. §§ 3.307, 3.309. As previously noted, an August 2019 rating decision made a favorable finding that the Veteran was splashed with hazardous liquids, including fuel and battery acid, in his eyes multiple times throughout his period of service. The Veteran’s service treatment records are silent for a diagnosis of or treatment for vision loss or lattice retinal degeneration. The record is silent for decades thereafter. The Veteran’s current treatment records indicate that the Veteran is being treated for corneal abrasions and itchy eyes. The Veteran underwent a VA examination in July 2013. The examiner noted that the Veteran was splashed in the eyes with jet fuel in 1983 and 1989 and hydraulic fluid and battery acid in 1985, but that in each case was treated and caused no permanent scarring to the external tissue or damage to vision. The Veteran indicated that thereafter he began to manifest mild dry eye irritation that was mediated by artificial tears. The Veteran also indicated that his vision has gotten worse. The Veteran’s uncorrected distance vision was 20/100 in the right eye and 20/70 in the left eye; and the Veteran’s uncorrected near vision was 20/40 in the right eye and 20/70 in the left eye. The examiner diagnosed the Veteran with multiple occurrences of superficial conjunctival abrasion (indicating that it manifested in 1983, 1985, and 1989); dry eye syndrome dating back to 1983; and lattice retinal degeneration dating to 2011. The examiner opined that the Veteran’s eye conditions are not likely to be caused by the incidents that occurred while in the service. The examiner indicated that the injuries experienced in-service were treated appropriately leading to no permeant loss of function or disability, because the heightened sensitivity to the corneas caused by the injuries sustained in-service was mild at most and could be palliated with minor treatment. The examiner indicated that dry eye could be due to hypersensitivity of the conjunctiva due to his in-service injuries, but that this is not debilitating, scarring, or disfiguring. The examiner also indicated that the Veteran’s vision difficulties were consistent with normal aging, and that the Veteran’s lattice retinal degeneration was not related to military service. The weight of the evidence indicates that the Veteran is entitled to service connection for a bilateral eye disability characterized by dry eyes and heightened corneal sensitivity. Both the July 2013 VA examination and the Veteran’s current treatment records indicate that the Veteran manifested and is being treated for dry eyes and corneal symptoms. The RO has already made a favorable finding that the Veteran sustained injuries to his eyes during a period of service, and the Board is bound by that determination. Additionally, favorable finding is more than corroborated by the evidence of record including the Veteran’s service treatment records. Finally, the July 2013 VA examination established a medical nexus between the Veteran’s current dry eyes and corneal symptoms and an in-service incurrence. The Board notes that, on its face, the July 2013 VA examination is clearly a negative medical opinion, but, when one reviews the substance of the examiner’s rationale, the examiner concedes: that the Veteran is currently manifesting dry eyes and corneal sensitivity, that the Veteran’s dry eyes began to manifest in 1983 during the Veteran’s period of service, and that corneal sensitivity is a residual of the Veteran’s in-service injuries. The examiner appears to be arguing that the conditions are unrelated to service, because the Veteran’s dry eyes and corneal sensitivity are unrelated to service, because the conditions are not particularly severe. The severity of a disability, however, is different from the existence and etiology of a disability. Therefore, the Board finds that the underlying medical determinations contained within the July 2013 VA examination are sufficient to support a grant of service connection for a bilateral eye disability characterized by dry eyes and corneal sensitivity; the overall negative character of the examination notwithstanding. The weight of the evidence indicates that the Veteran is not entitled to service connection for any other eye disability to include vision loss or lattice retinal degeneration. The Veteran’s service treatment records are silent for a diagnosis of or treatment for bilateral vision loss or lattice retinal degeneration. The Veteran did not begin to manifest either of these conditions until years after separation from service. Finally, a July 2013 VA examination indicated that the Veteran’s vision loss was a natural part of the aging process and that lattice retinal degeneration was unrelated to military service. Therefore, the Veteran does not meet the criteria for service connection for bilateral vision loss or lattice retinal degeneration. Here, the weight of the probative evidence of record demonstrates that the Veteran has manifested a current bilateral eye disability characterized by dry eyes and corneal sensitivity that was related to a period of service. Therefore, the evidence in this case is evenly balanced enough so as to allow the application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a bilateral eye disability characterized by dry eyes and corneal sensitivity is granted. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 1. 2. 3. Service connection for asthma is remanded; service connection for chronic sinusitis is remanded; and service connection for positive PPD with INH therapy is remanded. At issue is whether the Veteran is entitled to service connection for asthma, chronic sinusitis, and positive PPD with INH therapy. As discussed above, new and relevant evidence has been received sufficient to reopen these claims for service connection, and unfortunately, this matter must be remanded for further development in order to ensure that VA complies with its duty to assist the Veteran in substantiating his claim raised by the evidence contained within the record on appeal. In supplemental claims, the Veteran’s duty to assist is based on new and material evidence received by the RO during the record on appeal. 38 C.F.R. § 3.2501. As discussed above, the treatment records submitted by the Veteran is new and material, because the treatment records were not previously considered by VA; and the treatment records demonstrated that the Veteran was manifesting symptomology suggesting that the Veteran was manifesting asthma, chronic sinusitis, or a lung disability. As discussed above, the RO made a favorable finding that the Veteran had a in-service incurrence of acute sinusitis, and that the Veteran underwent INH therapy during a period of service after a positive PPD result. Additionally, the symptomology associated with the Veteran’s claimed asthma may merely be the symptoms of an entirely different lung disability potentially related to the Veteran’s positive PPD result during service. Taken together, the evidence indicates that the Veteran mas manifesting symptomology suggestive both disabilities disability; sustained in-service incurrences; and that there was a possible connection between them. This is sufficient to trigger VA’s duty to provide the Veteran with a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, these issues need to be remanded for an examination to address these concerns.   The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination in order to determine the nature and etiology of the Veteran’s claimed asthma and any symptomology or medical history associated with the Veteran’s claim. The examiner should proffer an opinion as to whether the Veteran’s asthma is at least as likely as not (i.e. probability of 50 percent or greater) etiologically related to the Veteran’s military service. 2. Arrange to provide the Veteran with a VA examination in order to determine the nature and etiology of the Veteran’s claimed chronic sinusitis and any symptomology or medical history associated with the Veteran’s claim. The examiner should proffer an opinion as to whether the Veteran’s sinusitis is at least as likely as not (i.e. probability of 50 percent or greater) etiologically related to the Veteran’s military service. 3. Arrange to provide the Veteran with a VA examination in order to determine the nature and etiology of the Veteran’s claimed residuals of a positive PPD result with INH therapy and any symptomology or medical history associated with the Veteran’s claim. The examiner should proffer an opinion as to whether the Veteran’s residuals of positive PPD result with INH therapy is least   as likely as not (i.e. probability of 50 percent or greater) etiologically related to the Veteran’s military service. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.