Citation Nr: 21006763 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 18-15 308 DATE: February 5, 2021 ORDER As new and material evidence has been received, the claim for service connection for allergic rhinitis (also claimed as allergies and sinus condition) is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for allergic rhinitis (also claimed as allergies and sinus condition) is remanded. FINDINGS OF FACT 1. In a final January 2009 rating decision, the RO denied entitlement to service connection for allergies and sinus condition; the Veteran did not submit a Notice of Disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final January 2009 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for allergic rhinitis. CONCLUSIONS OF LAW 1. The January 2009 rating decision that denied the claims for service connection for allergies and sinus condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for allergic rhinitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 16, 2000 to May 16, 2005, which is considered honorable for VA purposes. He also had a period of active duty service from May 17, 2005 to June 8, 2007, which is considered dishonorable for VA purposes. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned in January 2021. A transcript has not yet been associated with the claims file, but will be added to the Veteran’s file under the normal course of business.  Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Given the Board’s favorable disposition of the issue of whether new and material evidence has been received sufficient to reopen the claim for entitlement to service connection for allergic rhinitis , the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished. 1. Whether new and material evidence has been received sufficient to reopen the claim for entitlement to service connection for allergic rhinitis. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is 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 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117 – 18. In the January 2009 rating decision, the RO denied the claims for service connection for sinus condition and allergies, the latter of which was considered in connection with the former, and COPD because it found that the evidence did not show that there was a connection between the Veteran’s currently diagnosed allergic rhinitis and in-service episodes of sinusitis. The RO specifically noted that the Veteran had sinusitis in March 2006 (within the period of active service considered dishonorable for VA purposes). The Veteran did not file a timely NOD and new and material evidence was not received within one year of the January 2009 rating decision. That decision is final. The Board also acknowledges that if additional, pertinent service records are associated with the file, VA will reconsider the claim according to 38 C.F.R. § 3.156 (c). Here, while service medical records were added to the record after the January 2009 rating decision, the January 2009 rating decision clearly indicates that these records were considered in the initial adjudication of the Veteran’s claims for service connection for sinus condition and allergies. Thus, the service connection claim for allergic rhinitis need not be considered under 38 C.F.R. § 3.156 (c). Additional, service personnel records were added to the record after the January 2009 decision; however, these records are not pertinent to the question of entitlement to service connection for allergic rhinitis. Thus, the claim need not be considered under 38 C.F.R. § 3.156 (c). Since the Veteran’s prior final denial in January 2009, the record includes private treatment records indicating that the Veteran had sinusitis in February 205, within the period of active service considered honorable for VA purposes) and the Veteran’s statements at the January 2021 hearing that he had had sinusitis since service, which was seasonal and always occurred in the warmer months. The Board finds that these pieces of evidence are new as they were not previously of record and tend to relate to previously unestablished facts necessary to substantiate the underlying claim of service connection. Consequently, the claim of entitlement to service connection for allergic rhinitis is reopened REASONS FOR REMAND 1. Entitlement to service connection for allergic rhinitis (also claimed as allergies and sinus condition) is remanded. In April 2018, VA attempted to schedule the Veteran for a VA examination for sinusitis/rhinitis, which was cancelled because he did not respond. At the January 2021 hearing, the Veteran stated that he had not responded because the notification had been sent to his old address. He indicated that his current address was now of record and that he was willing to attend a VA examination. The Board finds that good cause has been shown for the Veteran’s failure to appear at his scheduled VA examination. 38 C.F.R. § 3.655. As such, a new VA examination is warranted. Additionally, at the January 2021 hearing, the Veteran reported that the prior October 2008 VA examination had been performed when his seasonal allergic rhinitis/sinusitis was not active. He stated that his sinusitis was seasonal and always occurred in the warmer months. As such, the Board finds that the Veteran should be afforded a VA examination performed during the spring or summer months (i.e., May through August). The matters are REMANDED for the following action: Schedule a VA examination from an appropriately qualified examiner regarding the nature and etiology of the Veteran’s allergic rhinitis/sinusitis during the spring or summer months (i.e., May through August). Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should address whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s allergic rhinitis/sinusitis began during or is otherwise related to his active duty service from May 16, 2000 to May 16, 2005. The examiner should note that private treatment records show that the Veteran was diagnosed with sinusitis in February 2005. Further, if the examiner finds that an allergy test is required, then the examiner must conduct one by blood draw and not nose swabs. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.