Citation Nr: 21071432 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-08 599 DATE: November 30, 2021 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for prostatitis. New and material evidence has been received to reopen a claim for entitlement to service connection for hypertension. New and material evidence has been received to reopen a claim for entitlement to service connection for allergic rhinitis. New and material evidence has been received to reopen a claim for entitlement to service connection for chronic sinusitis. REMANDED Entitlement to service connection for prostatitis is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for chronic sinusitis is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for sleep apnea syndrome is remanded. FINDINGS OF FACT 1. A November 2004 rating decision, which denied service connection for prostatitis, hypertension, allergic rhinitis, and chronic sinusitis, is final. The Veteran did not file a notice of disagreement with this rating decision or submit any relevant evidence related to this claim within a year of this rating decision. 2. New and material evidence has been received since the November 2004 rating decision that is neither cumulative nor redundant of the evidence previously of record, and relates to an unestablished fact necessary to reopen the claims for service connection for prostatitis, hypertension, allergic rhinitis, and chronic sinusitis. CONCLUSIONS OF LAW 1. The November 2004 rating decision, which denied service connection for prostatitis, hypertension, allergic rhinitis, and chronic sinusitis, is a final and binding determination based on the evidence then of record. 38 U.S.C. § 5108, 7103, 7104, 7105 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104. 2. Since the November 2004 rating decision, new and material evidence has been received, and the service connection claims for prostatitis, hypertension, allergic rhinitis, and chronic sinusitis are reopened. 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in November 2020, and a transcript of that hearing is of record. 1. New and material evidence has been received to reopen a claim for entitlement to service connection for prostatitis 2. New and material evidence has been received to reopen a claim for entitlement to service connection for hypertension 3. New and material evidence has been received to reopen a claim for entitlement to service connection for allergic rhinitis 4. New and material evidence has been received to reopen a claim for entitlement to service connection for chronic sinusitis The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1383 -84 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review it. 38 U.S.C. § 5108 (2012). New evidence means evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156 (a). Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384; see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claims for entitlement to service connection for prostatitis, hypertension, allergic rhinitis and chronic sinusitis. In this case, the Veteran's service connection claims for the aforementioned issues were initially denied in November 2004. That rating decision denied these claims because there was no evidence showing treatment and/or diagnosis until many years after separating from military service. The Veteran did not file a notice of disagreement with this rating decision or submit any relevant evidence related to this claim within a year of this rating decision. Therefore, this rating decision is final. 38 C.F.R. § § 20.1103. The evidence associated with the Veteran's claims file since the November 2004 rating decision includes voluminous private treatment records, to include private treatment records dated from 1999-2012, with earlier records from George Washington University Health Care Science. This evidence is new, as it was not received by the RO at the time the November 2004 rating decision was rendered. It is also material for it documents treatment/diagnosis provided for prostatitis, hypertension, rhinitis and sinusitis. For these reasons, the Board finds that new and material evidence sufficient to reopen the Veteran's claims have been received, and these claims are reopened. See 38 C.F.R. § § 3.156. However, as will be further discussed below, additional development is needed on these claims prior to appellate review. REASONS FOR REMAND 1. Entitlement to service connection for prostatitis is remanded. The Veteran contends that his service treatment records document urinary frequency. He further testified having been first diagnosed with prostatitis after complaining of pain in the groin area in August 1974, but also relayed his belief that he was misdiagnosed and improperly treated for this condition in service. It is not in question that the Veteran has a current disability, as he has been diagnosed with prostatitis during the appeal period. His August 1973 and December 1983 service treatment records include a complaint of problem with urination and urinary frequency, and August 1974 service treatment records contains a provisional diagnosis of prostatitis. Pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA's duty to assist in obtaining a VA examination is triggered when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The requirement that the evidence of record "indicates" that a disability, or persistent or recurrent symptoms of a disability, "may be associated" with the Veteran's service establishes "a low threshold." McLendon, 20 Vet. App. at 83. The Veteran's statements are accepted as credible for the purpose of determining whether an examination is needed (the credibility of those statements will be assessed when adjudicating the merits of the claim). The Board finds that the competent evidence of record is not adequate to address whether service connection for prostatitis is warranted on a direct service basis. Thus, the Board finds that the McLendon elements have been satisfied, and a VA examination is warranted for addressing direct service connection. 2. Entitlement to service connection for hypertension is remanded. The Veteran testified during the Board hearing that he had frequent abnormal blood pressure readings in service, and that he was due to have a blood pressure follow up every 3-4 months in service, which never occurred. He testified that he was diagnosed with a history of hypertension and was treated for this condition in 1992. He further adds that he was treated for this condition post-service since 1985 (1985 to 1991) from Dr. Vlalukin, who has since passed away and from whom the treatment records are no longer available; and claims that he subsequently received treatment from George Washington University Health Care Sciences, and thereafter from Dr. H. Washington (primary care physician). His service treatment records include multiple high blood pressure readings (see i.e., April 1982 service treatment records showing blood pressure of 150/100; September 1982 service treatment records showing blood pressure of 140/90, "[Veteran] for follow up on hypertension"). The Board finds that the competent evidence of record is not adequate to address whether service connection for hypertension is warranted on a direct service basis. Thus, a medical nexus opinion that addresses direct service connection must be obtained on remand, as there is insufficient competent evidence of record to adjudicate this issue. McLendon, 20 Vet. App. 79, 84-86 (2006). 3. Entitlement to service connection for chronic sinusitis is remanded. 4. Entitlement to service connection for allergic rhinitis is remanded. The Veteran contends that he sought multiple in-service treatment for chronic sinusitis and allergic rhinitis. He also argues that these conditions were not properly diagnosed while in service. He testified that his service treatment records document multiple complaints of headaches, sinus pain, nasal congestion and post-nasal drip, as well as a diagnosis of "allergic rhinitis." He further adds that he has been treated for this condition post-service since 1985 (1985 to 1991 from Dr. Vlalukin, who has since passed away and from whom his treatment records are no longer available), and subsequently from other facilities, to include from George Washington University Health Care Sciences (which are now already of record). The Veteran has current disabilities relating to the alleged conditions, as he has been diagnosed with chronic sinusitis and allergic rhinitis during the appeal period. His service treatment records document complaint of runny nose/sneezing (September 1978 service treatment records), stuffy sinuses (February 1976 service treatment records), headaches (February 1973 service treatment records), sinus pressure (September 1980 service treatment records), stuffy head and drainage, accompanied with diagnosis of allergic rhinitis (May 1983 service treatment records), and nasal congestion/post-nasal drip (September 1983 service treatment records). The Board finds a medical nexus opinion that addresses direct service connection must be obtained on remand, as there is insufficient competent evidence of record to adjudicate this issue. McLendon, 20 Vet. App. 79, 84-86 (2006). 5. Entitlement to service connection for sleep apnea syndrome is remanded. The Veteran claims that he complained of fatigue and lethargy in service and believes that it was either undiagnosed or went misdiagnosed in service likely due to the lack of understanding of apnea at the time. The Veteran submitted a statement from his private primary care physician (Dr. H. Washington) that the Veteran "has a long history of disrupted sleep dating back to the late 1970s. He was diagnosed with severe OSA in November 2001. OSA is a chronic condition which people usually experience symptoms for many years prior to diagnosis." See April 2007 correspondence. The Veteran also submitted multiple lay statements in September 2016 (his former spouse and his fellow servicemen, providing their observations as to the Veteran's symptoms of sleep apnea from the time he was in service; relaying the Veteran's statement that no matter how much he sleeps, he always feels like he needed more and feels as if his head was full of cotton; relaying the lay witness's own belief that the Veteran seems to have developed his current sleep apnea condition in service). See December 2007, October 2008, October 2012 lay statements. It is not in question that the Veteran has a current disability, as he has been diagnosed with OSA during the appeal period. The Veteran's August 1982 service treatment records also include a complaint of fatigue and episodes of lethargy. However, there is no medical nexus opinion addressing direct service connection opinion. Per McLendon, the Board finds that remand is required also for a direct service connection opinion. Moreover, while the Veteran testified currently receiving treatment from Dr. H. Washington (private primary care physician)subsequent to his treatment at the George Washington University Health Care Sciencesit appears there are records from Dr. H. Washington only until December 2007 in the claims file. Thus, the Board finds it necessary to remand for obtaining treatment from January 2008 and onward. The Veteran alternatively believes his current sleep apnea condition is secondary to his allergic rhinitis and chronic sinusitis. To the extent that his service connection claims for allergic rhinitis and chronic sinusitis are being remanded at this time, the Board finds remand for a secondary service connection opinion for sleep apnea is necessary, IF AND ONLY IF the Veteran is granted service connection for allergic rhinitis and chronic sinusitis. The matters are REMANDED for the following action: 1. Ask the Veteran to provide, or authorize VA to obtain, complete records of his treatment by Dr. H. Washington from 2007 to the present. All development efforts should be documented, and any negative responses should be associated with the claims file. 2. DO NOT SCHEDULE THE EXAMINATION until all the above records have been obtained to the extent possible. 3. Schedule examinations for prostatitis, hypertension, allergic rhinitis, chronic sinusitis, and sleep apnea. The examiners must review the complete claims file, including this remand. Then, the examiners must address the following, with full supporting rationales: (a.) Opine whether the Veteran's current prostatitis, is at least as likely as not related to an in-service injury, event, or disease. In doing so, the examiner should specifically address the following: August 1973 service treatment records (complaint of problem with urination), December 1983 service treatment records (complaint of urinary frequency), and August 1974 service treatment records (a provisional diagnosis of prostatitis). (b.) Opine whether the Veteran's current hypertension, is at least as likely as not related to an in-service injury, event, or disease. In doing so, the examiner should specifically address the following: April 1982 service treatment records (showing blood pressure of 150/100); September 1982 service treatment records (showing blood pressure of 140/90, "[Veteran] for follow up on hypertension") (c.) Opine whether the Veteran's current allergic rhinitis and chronic sinusitis are at least as likely as not related to an in-service injury, event, or disease, to include his in-service diagnosis of allergic rhinitis. In doing so, the examiner should address the following: complaint of runny nose/sneezing (September 1978 service treatment records), complaint of stuffy sinus (February 1976 service treatment records), complaint of headaches (February 1973 service treatment records), complaint of sinus pressure (September 1980 service treatment records), complaint of stuffy head and drainage, and a diagnosis of allergic rhinitis (May 1983 service treatment records), and complaint of nasal congestion/post-nasal drip (September 1983 service treatment records). (d.) Opine whether the Veteran's current sleep apnea disability is at least as likely as not related to an in-service injury, event, or disease. In doing so, the examiner should specifically address August 1982 service treatment records (complaint of fatigue and episodes of lethargy); December 2007, October 2008, and October 2012 lay statements; and April 2007 correspondence from Dr. H. Washington. 4. IF AND ONLY IF the Veteran is granted service connection for allergic rhinitis and chronic sinusitis, opine whether it is at least as likely as not that the Veteran's sleep apnea disability was caused or aggravated (even if episodically) by service-connected allergic rhinitis and chronic sinusitis. The examiner should understand that "aggravation" means any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, regardless of its permanence. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain whether additional information is needed or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.