Citation Nr: 21064464 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 20-27 233 DATE: October 20, 2021 ORDER New and material evidence has been received to reopen the claim for service connection for rhinitis, claimed as irritation of the nostrils, and to this extent only the appeal is granted. New and material evidence has been received to reopen the claim for service connection for a sleep disorder, to include sleep apnea, and to this extent only the appeal is granted. REMANDED Entitlement to a compensable (higher than zero percent) rating for scar residuals of a right breast operation is remanded. Entitlement to service connection for rhinitis, claimed as irritation of nostrils, is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea, including as secondary to claimed rhinitis, is remanded. Entitlement to service connection for a skin condition, other than tinea pedis and onychomycosis, to include eczema, is remanded. FINDINGS OF FACT 1. An unappealed September 2014 rating decision denied service connection for rhinitis. The Veteran did not appeal that decision or submit additional evidence within the following year, and it became final. 2. Evidence received subsequent to the September 2014 decision is new and is material to the claim for service connection for rhinitis 3. An unappealed September 2014 rating decision denied service connection for a sleep disorder. The Veteran did not appeal that decision or submit additional evidence within the following year, and it became final. 4. Evidence received subsequent to the September 2014 decision is new and is material to the claim for service connection for a sleep disorder. CONCLUSIONS OF LAW 1. The criteria for reopening the finally denied claim for service connection for rhinitis have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for reopening the finally denied claim for service connection for a sleep disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1962 to January 1964. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at a hearing conducted in July 2021. A transcript is of record. Requests to Reopen Claims for Service Connection Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). 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 evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 3 8 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for rhinitis, claimed as irritation of the nostrils The Veteran's claim for service connection for rhinitis, addressed as irritation of the nostrils as a result of asbestos exposure, was previously denied by the VA Regional Office (RO) by a September 2014 decision based on absence of evidence of an event, injury, or disease in service to which to link a current disability. The RO specifically denied the claim based on absence of evidence of a disability characterized by irritation of the nostrils which began in service or was related to asbestos exposure. The Veteran did not appeal this denial or submit relevant evidence within the appeal period, and hence it became final. At his July 2021 hearing before the undersigned, the Veteran testified to self-medicating for his rhinitis with over-the-counter medications since service, and that he began to see a doctor in 1965. The Board finds that this testimony constitutes evidence that is both new and material as it potentially supports a relationship between rhinitis and service or onset of rhinitis in service. Reopening of the claim is therefore warranted. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a sleep disorder The Veteran's claim for service connection for a sleep disorder, including possible sleep apnea, was previously denied in a September 2014 rating decision based on absence of evidence of an event, injury, or disease in service to which to link any current sleep disorder. The Veteran did not appeal this denial or submit relevant evidence within the appeal period, and hence it became final. Evidence since the September 2014 decision includes evidence of current sleep apnea, including a sleep study in 2016. At his July 2021 hearing, the Veteran did not testify explicitly to having a sleep disorder in service, but he did testify to seeing a Dr. S. in approximately 1977 and receiving pills to help with his sleep, and before that taking over-the-counter medications for his sleep. He also then alluded to a belief that his sleep problems were related to his claimed rhinitis, noting that his sleep difficulties began after his rhinitis. The Board finds that this testimony constitutes evidence that is both new and material as it potentially supports a relationship between a sleep disorder and service or his claimed rhinitis. Reopening of the claim is therefore warranted. REASONS FOR REMAND 1. Entitlement to a compensable (higher than zero percent) rating for scar residuals of a right breast operation is remanded. The Veteran testified to the effect that the right breast scar was not tender or painful and did not have skin breakdown or unstable scar, but that he had some tightness or tenderness in that area when he lifted his arms performing work overhead. He explained that this was not a new phenomenon, and hence the absence of tenderness as endorsed at the VA examination in 2018 reflected the usual status of the scar, when he was not performing overhead work. He submitted a photograph in conjunction with the hearing which supported the presence of the scar. Upon VA skin examination in May 2018, the examiner observed a 5.5 centimeter linear surgical scar beneath the right breast. The scar was healed, stable, not tender, and not painful. The scar was noted to have been from surgery in 1962. No skin breakdown was observed. The examiner found that both upper extremities were unaffected. However, this finding does not preclude the possibility that movement of the upper extremities above the head affected scar tissue or underlying tissue. There is no indication that the examiner was apprised of the Veteran's report as provided at his hearing that he experienced discomfort when performing overhead work. A new examination is therefore warranted to assess whether the Veteran experiences more than minimal discomfort in the area of his scar when performing overhead work, to include whether such discomfort is attributable to the surgical scar. 2. Entitlement to service connection for rhinitis, claimed as irritation of nostrils, is remanded. The Veteran testified to buying over-the-counter medications for his rhinitis ever since service, and that he began seeing a doctor for the condition in 1965, when a doctor observed redness and some blockage and prescribed medication. The Veteran added that he had seen multiple doctors over the years since that time, but that those doctors were all dead and he could not obtain records from them, except for the recent doctor whose records he submitted. The Veteran added that treatment which began within 12 months of service separation included a nasal spray prescribed by a doctor, and that treatment in subsequent years consisted only of nasal spray. The Veteran submitted a July 2018 private medical opinion by H. S., DO, a primary care physician, stating that it was "more than likely that the allergic rhinitis [...] existed during active duty and to this day." However, the physician provided no rationale to support this opinion. In March 2020, a VA examiner reviewed the record and opined that it was not at least as likely as not that any current rhinitis condition was related to the Veteran's condition of itchy nose or allergic rhinitis in service in February 1962. However, in the provided rationale, the examiner failed to address the Veteran's self-reported history of symptoms and treatment for rhinitis. The examiner is thus considered to have not given due consideration to the Veteran's self-reported history, which is competent lay evidence of symptoms of rhinitis from service. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). Absent such consideration, the examination cannot be valid. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinion must be supported by adequate analysis of relevant evidence). Accordingly, regrettably, the claim must be remanded for an addendum with an opinion adequately considering the Veteran's self-reported history, including as addressed in testimony before the undersigned. Upon remand examination, the examiner should also consider the Veteran's post-service work including in a shipyard and in a carpet business, and associated exposures, as possible intercurrent causes of current rhinitis. 3. Entitlement to service connection for a sleep disorder, to include sleep apnea, including as secondary to claimed rhinitis, is remanded. At the Veteran's hearing, the Veteran's representative pointed out that a statement by the Veteran's spouse in 2018 stated that the Veteran snored. The representative also noted that they were married in October 1967. The Veteran then testified that his spouse had also stated that he sounded like he was choking or gasping for air. However, this submitted statement and the Veteran's second-hand testimony fail to establish that the Veteran's spouse observed the Veteran to appear to be choking or gasping for air in service or in years proximate to service. The statement by the Veteran's spouse in 2018 does not assert this, and neither did the Veteran in his testimony. The Veteran did testify that fellow soldiers never told him that he snored and then went silent or that he was choking or gasping for air. He also testified that he went to see a Dr. S. in perhaps 1977 for his sleep, and before then he took over-the-counter medication for his sleep. He explained that he was having difficulty with sleeping and his wife said that he snored. The Veteran's representative noted that sleep apnea was suspected in 2014 and that a sleep study was performed in 2016. The Veteran testified to currently using a CPAP machine, and having problems with feeling overwhelmingly sleepy and tired during the day or struggling to stay awake. He added that when he was working, he had difficulty with feeling very sleepy and tired, and that he pushed through to get through the day. He also testified that when he worked at the shipyard or when he opened his carpet business, sometimes he would sit down during the day, or at lunch, and would doze off. He added that using a CPAP has helped him some but that he still has difficulty with sleep and being tired. Because the Veteran references going to a doctor in 1977 and before that taking over-the-counter medications for his sleep, it appears possible that the Veteran's claim encompasses sleep difficulty beyond sleep apnea. The claim submitted in April 2018 which is the subject of the current appeal list simply "sleep disorder." VA cannot require a layperson to comprehend the precise nature of his claimed disability, and hence a broader claim for service connection for a sleep disorder, to include sleep apnea, is properly recognized. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (finding that a claim is not necessarily limited in scope to a single or particular diagnosis). Additionally, in a statement in support of claim submitted in February 2018 the Veteran explained that he never had a sleep problem prior to his irritation of the nostrils. Thus, he appears to claim a sleep disorder as secondary to claimed rhinitis. According, the Board adjusts the scope of claim to a sleep disorder more broadly, and to include on a secondary basis. Based on testimony and other supportive evidence, remand is warranted for an examination addressing the etiology related to service. 4. Entitlement to service connection for a skin condition other than tinea pedis and onychomycosis, to include eczema, is remanded. Following a May 2018 RO decision denying service connection for a skin condition, the Veteran appealed by a notice of disagreement submitted in September 2018. In September 2018, the Veteran also submitted a private medical opinion linking current eczema to service. The claim was incompletely granted by a Decision Review Officer (DRO) decision in March 2020, with the grant of service connection for tinea pedis and onychomycosis. By a December 2017 statement the Veteran informed that his skin condition manifested by peeling skin was now "over my entire body." The Statement of the Case (SOC) issued in March 2020 did not include the skin condition claim beyond that granted by the March 2020 DRO decision. By a Form 9 submitted in June 2020, the Veteran continued his appeal for a skin condition with "peeling of the feet and body." Because the March 2020 DRO decision was not a complete grant of the benefit sought, the Veteran was entitled to an SOC addressing the broader skin disorder claim. AB v. Brown, 6 Vet. App. 35 (1993); 38 C.F.R. § 19.26. Remand is now warranted for this purpose. Godfrey v. Brown, 7 Vet. App. 398 (1995) and Manlincon v. West, 12 Vet. App. 238 (1999). See also 38 C.F.R. § 19.9(a). The matters are REMANDED for the following actions: 1. Following any necessary development, issue a statement of the case (SOC), as well as notification of appellate rights on the issue of entitlement to service connection for a skin condition other than tinea pedis and onychomycosis, to include eczema. The Veteran is reminded that to vest the Board with jurisdiction over the issue, a timely VA Form 9, or substantive appeal, must be filed. 38 C.F.R. § 20.202. If the Veteran perfects the appeal as to this claim, the case must be returned to the Board for appellate review. 2. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the remanded claims. 3. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran's authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran should be appropriately notified. 4. Thereafter, schedule the Veteran for an in-person examination to address the nature and severity of his scar residuals of right breast surgery. The claims file should be reviewed in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results reported in detail. The examiner should be advised that the examination is necessary because at his July 2021 hearing the Veteran testified to having discomfort in the area of his right breast surgical scar when performing overhead work. The examiner should ascertain the extent of any such disability associated with his right breast surgical scar, to include whether the Veteran has in fact ever performed overhead work during the claim period and the extent to which the right breast surgical scar impairs functioning, including work capacity. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should provide a complete explanation for any opinions the examiner expresses. 5. Obtain an addendum to the March 2020 VA rhinitis examination, to address the nature and etiology of claimed rhinitis or claimed itchy nose. The examiner should be advised that the prior examination opinion in March 2020 was inadequate because it failed to provide a rationale which considered the Veteran's self-reported history of rhinitis symptoms. The examiner should again review the record, which now includes the Veteran's July 2021 hearing testimony, as well as a July 2018 private medical opinion by H.S., DO. The examiner must also document and consider the Veteran's own statements regarding his disability, including both hearing testimony and statements made to the examiner, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. For any rhinitis present during the claim period, provide an opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the rhinitis began in service or is otherwise causally related to service. The rationale for this opinion must include consideration of the Veteran's self-reported history as well as the July 2018 medical opinion of H.S., DO. The rationale should also consider potential post-service causes of the Veteran's rhinitis, to include any exposures in his post-service work in a shipyard and in a carpet business. The examiner should provide a complete explanation for any opinions the examiner expresses. 6. Then, schedule the Veteran for an in-person examination to address the nature and etiology of any sleep disorder present during the claim period, to include any sleep apnea. The claims file should be reviewed in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results reported in detail. The examiner must also document and consider the Veteran's own statements regarding his disability, including both July 2021 hearing testimony and statements made to the examiner, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. For each sleep disorder, to include sleep apnea, present during the claim period, provide a separate opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the disorder began in service or is otherwise causally related to service. The rationale for this opinion must include consideration of the Veteran's self-reported history as well as the July 2018 medical opinion of H.S., DO. Also, for each sleep disorder, to include sleep apnea, present during the claim period, provide a separate opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the disorder was caused or aggravated (worsened) by any rhinitis. Separate opinions and rationales must be provided for causation and aggravation. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The rationales for these opinions must include consideration of the Veteran's self-reported history as well as the July 2018 medical opinion of H.S., DO. The examiner should provide a complete explanation for any opinions the examiner expresses. (Continued next page) 7. Thereafter, readjudicate the appealed claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.