Citation Nr: 21008038 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-18 946A DATE: February 11, 2021 ORDER The application to reopen a claim of entitlement to service connection for a chronic sinus disability is granted. REMANDED Entitlement to service connection for a chronic sinus disability is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. A June 1985 rating decision earlier denied the Veteran’s claim of service connection for chronic sinusitis; the claimant did not appeal this decisions; he did not submit new and material evidence within the one-year appeal period of this decision; and VA did not subsequently obtain and associate with the claim’s file VA treatment records generated within the one-year appeal period of this decision which treatment records are new and material evidence. 2. Evidence received since the June 1985 rating decision is new, it is related to an unestablished fact necessary to substantiate the claim of service connection for a chronic sinus disability and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 1985 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for a chronic sinus disability is new and material and therefore the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the United States Army from May 1980 to May 1984. In a July 2018, a Veterans’ Law Judge not the undersigned issued a Board of Veterans’ Appeal (Board) decision that, among other things, denied the claims of service connection for bilateral knee disabilities and a total rating based on individual unemployability (TDIU). The Veteran appealed the July 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 order, that incorporated the parties February 2019 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s July 2018 decision to the extent that it denied service connection for bilateral knee disabilities and a TDIU. As to the applications to reopen the claim of service connection for a sinus disability, while the above service connection and TDIU claims were pending before the Court the Veteran perfected his appeal as to this issue. As to the claim of service connection for bilateral knee disabilities and a TDIU, in September 2019 the Board remanded theses issue to undertake the development required by the JMPR. As to the claim for a TDIU, in an August 2020 rating decision the RO granted this claim. Therefore, the Board finds that this issue is no longer in appellate status. See, e.g., Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). Lastly, the Board notes that additional VA treatment records were added to the record since the RO issued the July 2020 supplemental statement of the case (SSOC) and the Board received the November 2020 waiver of agency of original jurisdiction (AOJ) review. Nonetheless, the Board finds that it may adjudicate this claim to reopen because it is granting the claim and the Veteran will not be prejudiced by this action. The Application to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing 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). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. Thereafter, in Lang v. Wilkie, No. 2019-1992 (August 19, 2020), the Court removed the sufficient knowledge of the existence of the VA records requirement in Turner. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the record shows that a June 1985 rating decision earlier denied the Veteran’s claim of service connection sinusitis. The rating decision denied the claim because, in substance, the Veteran did not have a current disability. The Veteran did not appeal the June 1985 rating decision. The Board also finds that new and material evidence was not received by the RO in the first year following the issuance of the June 1985 decision even though VA treatment records were associated with the record during this time-period because they did not relate to his claim of service connection for sinusitis. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the rating decision that were new and material evidence. See Lang, supra; Turner, super. Accordingly, the Board finds that the June 1985 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the final June 1985 rating decision, the RO, the Veteran, and/or his representative filed with the VA additional post-service treatment records, the RO provided the Veteran with VA examinations as to unrelated claims, the Veteran and his representative filed with the RO additional written statements in support of the claim, and the Veteran’s representative filed with the RO a medical article. As to the additional medical records added to the record since the final June 1985 rating decision, they include post-service medical records which for the first time diagnosed the Veteran with a chronic sinus disorder. Specifically, the records include a November 2018 sinus computerized tomography (CT) that diagnosed a sinus polyp or cyst. Therefore, because a current disability is a condition precedent for establish service connection (see 38 C.F.R. § 3.303) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that the November 2018 sinus CT which diagnose a sinus polyp or cyst is new and material evidence and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for a chronic sinus disability is remanded. As to the newly reopened claim of service connection for a chronic sinus disability, the Veteran claims that his current disability is due to his military service to include his constant exposure to the chemicals needed to develop films as an x-ray specialist while on active duty. In this regard, the Veteran’s DD 214 list’s his occupational specialty as an x-ray specialist. In addition, service treatment records documented the Veteran’s complaints of nasal congestion and post-nasal drip. See, e.g., service treatment records dated in September 1981 and February 1983. Moreover, and as noted above, the November 2018 sinus CT diagnose a sinus polyp or cyst even though the earlier September 2018 sinus CT and the later December 2019 nasal endoscopy were negative for sinus disease. Additionally, the Board finds that the Veteran has competently reported having observable problems with his sinus (i.e., sinus pressure and pain as well as nasal discharge) in and since service. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lastly, in December 2018 the Veteran’s representative filed with VA a medical article regarding there being a relationship between chemical exposures working in a darkroom and developing subsequent diseases. See Wallin v. West, 11 Vet. App. 509 (1998) (holding that medical article or treatise evidence may be used to meet the requirement for a medical nexus when it is supported by medical evidence specific to an appellant’s claim). Given the above, the Board finds that the criteria to provide the Veteran with a VA examination to obtain an etiology opinion have been met. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). While this issue is in Remand status the RO should also obtain and associate with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). Entitlement to service connection for right and left knee disorders are remanded. As to the claims of service connection for bilateral knee disabilities, the Board remanded these issues in September 2019 to obtain an etiology opinion as to whether the Veteran’s disabilities were due to his military service and/or secondary to a service-connected disability including his pes planus. However, while the post-Remand record shows that the RO obtained an etiology opinion in June 2020, the Board does not find that opinion adequate. The Board has reached this conclusion because the examiner did not provide an adequate explanation for the opinion that the already service-connected pes planus did not cause or aggravate either knee disability by stating that “STR’s are silent for knee complaint and no record of complaints during presumptive period. Therefore[,] there [is] no nexus or plausible secondary relationship is established. ” The Board has reached this conclusion because whether or not the Veteran had complaints, diagnoses, or treatment for knee problems while on active duty and in the first post-service year has no relevance in a claim for secondary service connection. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). The Board also does not find the June 2020 etiology opinion adequate because it did not address the Court’s holding in Ward v. Wilkie, 31 Vet. App. 233 (2019) in which it redefined the definition of aggravation to know include a temporary worsening of a disability. Therefore, the Board finds that a Remand is again required to obtain an adequate etiology opinion. See 38 U.S.C. § 5103A(d); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Lastly, the Board finds that a Remand is required for the RO to issue a SSOC that considers the Veteran’s claims taking into account all the evidence added to the record since it issued the August 2020 SSOC. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Beyond the above, the Board must note the recent grant of TDIU. Considering this fact, the Veteran, in consultation with his representative, may wish to withdraw these claims, in writing. These issues are REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of any sinus disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide diagnoses for all sinus disabilities including sinusitis, polyps, and cysts. If the Veteran does not currently have and/or never had a sinus disability including sinusitis, polyps, and cysts the examiner should explain if he never had the disability and/or if it has since resolved. In providing the opinion, the examiner should specifically consider and discuss, among other things, the following: the February 1985 negative sinus x-ray; the September 2018 sinus CT that was negative but for a tiny focus of intense activity in the left maxillary sinus region and along the medial sinus wall; the November 2018 sinus CT that diagnosed a sinus polyp or cyst; and the December 2019 nasal endoscopy that was negative for sinus disease. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any sinus disease diagnosed during the pendency of the appeal even if it has since resolved was caused by the Veteran’s military service including the Veteran’s exposure to chemicals developing x-rays while on active duty. In providing answers to the above question the examiner should consider and discuss the service treatment records that documented the Veteran’s periodic complaints of nasal congestion and post-nasal drip. See, e.g., service treatment records dated in September 1981 and February 1983. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above question the examiner should consider and discuss the article the Veteran’s representative filed in December 2018 regarding there being a relationship between chemical exposures working in a darkroom and developing subsequent diseases. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his bilateral knee disabilities. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide diagnoses for all knee disorders. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right and/or a left knee disorder was caused by the Veteran’s military service. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right and/or a left knee arthritis manifested in the first post-service year. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran’s right and/or a left knee disorder was caused by his service-connected right and left lower extremity radiculopathy, right and left foot pes planus, right and left ankle disabilities, and/or fractured right fifth toe. e. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran’s right and/or a left knee disorder was aggravated by his service-connected right and left lower extremity radiculopathy, right and left foot pes planus, right and left ankle disabilities, and/or fractured right fifth toe. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should also be aware of the facts that the Court held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. (Continued on the next page)   However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. The RO shoulder thereafter issue a SSOC that considers the Veteran’s claim taking into account all the evidence added to the record since it issued the August 2020 SSOC. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.