Citation Nr: 21008221 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 18-53 018A DATE: February 12, 2021 ORDER Reopening of the claim for entitlement to service connection for sinusitis is granted. Reopening of the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, depression, and insomnia, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for problems breathing is remanded. Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. In a March 2012 rating decision, entitlement to service connection for sinusitis was denied. 2. New evidence received since the March 2012 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for sinusitis. 3. In a March 2012 rating decision, entitlement to service connection for PTSD was denied. 4. New evidence received since the March 2012 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, depression, and insomnia. CONCLUSIONS OF LAW 1. The March 2012 rating decision denying entitlement to service connection for sinusitis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New and material evidence has been received since the RO’s March 2012 rating decision, and the claim for entitlement to service connection for sinusitis is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The March 2012 rating decision denying entitlement to service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 4. New and material evidence has been received since the RO’s March 2012 rating decision, and the claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, depression, and insomnia, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1991 to November 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a December 2020 virtual hearing; a transcript of this hearing is associated with the claims file. Claims to Reopen The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464, 468 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). The finality of a previously disallowed claim can be overcome by the submission of new and material evidence, however. See 38 U.S.C. § 5108 (2018). New evidence means “evidence not previously part of the actual record before agency adjudicators.” 38 C.F.R. § 3.156(a). “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.” Id. “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.” Id. In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened the evidence is presumed to be credible. Savage v. Gober, 10 Vet. App. 488, 493–94 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). With respect to the issues decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for sinusitis The claim for entitlement to service connection for sinusitis was first addressed in a February 1993 rating decision in which the RO found that the service treatment records and evidence following service did not demonstrate a chronic condition. The Veteran filed multiple claims to reopen following this denial, the latest of which was denied in March 2012, when the RO determined that a persistent disability was not present in service. The Veteran did not file an appeal, and the March 2012 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Since the March 2012 rating decision, additional evidence has been associated with the claims file, including an October 2014 buddy statement (received in January 2015) from a servicemember who alleged he served with the Veteran in Iraq in 1992. This evidence is new because it was not associated with the record at the time of the March 2012 rating decision. This evidence is material because it relates to a previously unestablished element of the Veteran’s claim: a nexus to service. Because the servicemember who wrote the buddy statement asserted that the Veteran served in Iraq during the presumptive Persian Gulf period, a new nexus to service has been raised. See 38 U.S.C. § 3.317. Thus, new and material evidence has been received and reopening the claim for entitlement to service connection for sinusitis is granted. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for PTSD The claim for entitlement to service connection for PTSD was first addressed in a May 2008 rating decision, which determined that there was no verifiable in-service stressor and no medical link between a verified stressor and service. The Veteran then filed an additional claim, which was again denied in March 2012, when the RO determined that the Veteran did not have an in-service stressor. Since the March 2012 rating decision, additional evidence has been associated with the claims file, including the October 2014 buddy statement (received in January 2015) from a servicemember who alleged he served with the Veteran in Iraq in 1992 as well as the Veteran’s testimony at the December 2020 Board hearing. This evidence is new because it was not associated with the record at the time of the March 2012 rating decision. This evidence is material because it relates to a previously unestablished element of the Veteran’s claim: an in-service stressor. Because the servicemember who wrote the buddy statement asserted that the Veteran served in Iraq, and the Veteran reported stressors during that service, a new stressor has been raised. The Board additionally acknowledges that the Veteran submitted claims for entitlement to service connection for anxiety, depression, and insomnia. Because a veteran without medical expertise is not competent to diagnose his particular condition, the Board has broadened the Veteran’s claim for a PTSD to incorporate any psychiatric disorder, including PTSD, anxiety, depression, and insomnia. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, new and material evidence has been received and reopening the claim for entitlement to service connection for an acquired psychiatric disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for vertigo is remanded. Remand is necessary to provide a VA medical examination. The Veteran contended in a statement dated January 2014 (received by VA in February 2014) that his vertigo is secondary to his acquired psychiatric disability or problems breathing. At the December 2020 Board hearing, the Veteran testified that doctors had told him his vertigo was related to his service-connected hearing loss and tinnitus. Because no such opinion is associated with the claims file, VA should provide a VA medical examination to determine the etiology of the Veteran’s vertigo. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, anxiety, and insomnia, is remanded. Remand is required to obtain a VA examination addressing the Veteran’s acquired psychiatric disability. In a March 2019 statement, the Veteran reported that he experienced anxiety and depression due to his hearing loss, tinnitus, and pes planus. The Board accordingly finds that a VA examination is warranted to determine whether the PTSD, depression, anxiety, and insomnia are related to his service-connected disabilities. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran contended in a statement dated January 2014 (received by VA in February 2014) that his sleep apnea is secondary to his acquired psychiatric disability, tinnitus, or problems breathing. A VA opinion is accordingly required to determine the etiology of the Veteran’s sleep apnea. 4. Entitlement to service connection for problems breathing is remanded. The Board finds that a VA examination is necessary to determine whether the Veteran’s problems breathing are related to in-service records documenting hay fever, such as a January 1992 Medical Board Summary that noted the Veteran “has seasonal hay fever” and a November 1992 Report of Medical History in which the reviewing medical officer indicated “Hay Fever -- currently stable.” 5. Entitlement to service connection for sinusitis is remanded. The Board finds that a VA examination is necessary to determine whether the Veteran’s sinus condition is related to in-service assessments of sinusitis in October 1991 and March 1992 service treatment records. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his vertigo. The examiner must review the claims file and opine as to whether vertigo is at least as likely as not caused or aggravated by service or a service-connected disability. The role, if any, of service-connected hearing loss and tinnitus must be addressed, and solely for purposes of examination, an acquired psychiatric disorder, sleep apnea, and breathing problems, to include sinusitis, should be presumed serviced-connected and discussed as potential causative or aggravating factors. A full and complete rationale for all opinions expressed is required. 2. Schedule the Veteran for a VA mental disorders examination; the examiner must review the claims file in connection with the examination. The examiner must identify all currently diagnosed acquired psychiatric disorders. For each, the examiner must opine as to whether such is at least as likely as not caused or aggravated by service or a service-connected disability. The role, if any, of service-connected hearing loss, tinnitus, and pes planus must be addressed, and solely for purposes of examination, sleep apnea and breathing problems, to include sinusitis, should be presumed serviced-connected and discussed as potential causative or aggravating factors. A full and complete rationale for all opinions expressed is required. 3. Schedule the Veteran for a VA sleep apnea examination. The examiner must review the claims file and opine as to whether sleep apnea is at least as likely as not caused or aggravated by service or a service-connected disability. The role, if any, of service-connected tinnitus must be addressed, and solely for purposes of examination, an acquired psychiatric disorder and breathing problems, to include sinusitis, should be presumed serviced-connected and discussed as potential causative or aggravating factors. A full and complete rationale for all opinions expressed is required. 4. Schedule the Veteran for a VA respiratory conditions examination; the examiner must review the claims file in connection with the examination. The examiner must identify all current respiratory disabilities. Sinusitis must be specifically discussed, and if possible a diagnosis associated with complaints of problems breathing. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion. The examiner is asked to determine whether the Veteran’s breathing problems and/or sinusitis are at least as likely as not caused or aggravated by service, including hay fever noted in a January 1992 Medical Board Summary and a November 1992 Report of Medical History. A full and complete rationale for all opinions expressed is required. 5. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and, after an appropriate period for response, return the matter to the Board if otherwise in order. . WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Ripplinger, 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.