Citation Nr: 21026206 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-05 125 DATE: April 30, 2021 ORDER As new and material evidence has been received sufficient to reopen the previously denied claim for service connection for a sinusitis, the application to reopen the claim is granted. Service connection for glaucoma, to include as secondary to a service-connected disability, is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for bronchitis is remanded. Entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease (GERD) and gastritis with peptic ulcer disease is remanded. FINDINGS OF FACT 1. An unappealed November 2005 rating decision initially denied service connection for sinusitis. 2. Evidence received since the November 2005 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claims of entitlement to service connection for sinusitis. 3. The preponderance of the evidence is against a finding that the Veteran's glaucoma manifested in service or is otherwise related to service, to include a service-connected disability. CONCLUSIONS OF LAW 1. The November 2005 rating decision that denied entitlement to service connection for sinusitis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the November 2005 rating decision is new and material and serves to reopen the Veteran's claims of entitlement to service connection for sinusitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 3. The criteria for service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to April 1983 and from August 1983 to December 1997. In February 2021, a Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. 1. Whether new and material evidence sufficient to reopen the previously denied claim for service connection for sinusitis has been received. A claim that has been denied in an unappealed rating decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (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). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In a November 2005 rating decision, the Regional Office (RO) denied service connection for sinusitis. The basis of the denial of service connection was that there was no evidence of a current sinus condition and no service complaints of sinusitis. The Veteran did not appeal this denial or submit new and material evidence within one year of that decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). In February 2011, the Veteran submitted his current claims for service connection for sinusitis. Such claim has been construed as a request to reopen the previously denied claim for sinusitis. The evidence received since the November 2005 rating decision includes updated VA treatment records and the Veteran’s February 2021 hearing testimony regarding how he believes his sinusitis is related to his military service. In light of the low threshold for establishing new and material evidence, the Board finds that this evidence relates to an unestablished fact necessary to substantiate. As such, the Veteran's claim is reopened. 2. Entitlement to service connection for glaucoma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks service connection for glaucoma. After a thorough review of the record and considering the legal criteria above, the Board finds that, while the Veteran appears to have a current diagnoses for glaucoma, the evidence does not show that this disorder was incurred in service, within one year of his separation from service, or was otherwise related to his service, to include a service-connected disability. In that regard, there is otherwise no evidence of an in-service incurrence, event, or injury to support his claims for service connection. The Veteran’s service treatment records (STRs), to include an October 1997 service separation examination report, are silent for any complaints, findings, treatment, or diagnoses related to glaucoma. At the February 2012 Board hearing, the Veteran testified he did not make any eye complaints while he was in service. VA treatment records show a diagnosis for glaucoma only as early as November 2010 and the Veteran has testified that he was not diagnosed with glaucoma until 2013 or 2014. See February 2021 Board Hearing Transcript. Notably, neither the Veteran, nor his representative, has contended that glaucoma was related to any in-service incurrence, event, or injury and/or persisted since service. Rather, as noted above, the Veteran appears to be claiming that his glaucoma is related to the medication therapy for his service-connected posttraumatic stress disorder (PTSD) with depressive disorder and/or for his nose bleeds caused by sinusitis. See November 2011 Claim and December 2011 Correspondence. In spite of this contention, however, the Board notes that there is no basis to award secondary service connection. Chiefly, while the Veteran is service-connected for PTSD with depressive disorder, he has not submitted any evidence to support the claim that his glaucoma is related to his antidepressive medication. Additionally, although the Veteran has claimed service connection for sinusitis and that claim is being remanded for additional development, the claim for glaucoma need not be remanded as an inextricably intertwined issue because the Veteran has not submitted any medical evidence in support of his unsubstantiated claim that glaucoma is caused by medication to treat nose bleeds. The Board further observes that, while the Veteran is competent to report symptoms, he is not competent as a layperson to opine as to the etiology of his glaucoma. Such opinion requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Significantly, when the Veteran presented for testimony in February 2021, he could not offer a statement as to how he believed his glaucoma was related to his service other than to note that he did not have a family history for the condition. Likewise, in the absence of competent medical or lay evidence relating the Veteran's glaucoma to his PTSD/depressive disorder (to include antidepressive medication) and/or his medication therapy for sinusitis/nose bleeds there is no duty to provide a VA examination in support of the claim for secondary service connection. See Waters v. Shinseki, 601 F.3d 1274, 1276-77 (2010) (VA has no duty to provide an examination when there is no competent evidence of a nexus between a current disability and an in-service injury, disease, or event). Moreover, in the absence of medical evidence, the Veteran’s unsubstantiated and conclusory statements are not sufficient to establish a nexus. Id. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's glaucoma was related to his active duty service and/or a service-connected disability. As the preponderance of evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis and bronchitis are remanded. During the appeal period, the Veteran has reported having sinus issues and his VA treatment records show a diagnosis for bronchitis. See December 2016 VA Treatment records. The Veteran has also contended he had various exposures during his service to include exposure to DS-2, oil well fires, trash burning pits, burning human waste. See December 2011 Correspondence. There is also a significant history for sinus congestion in October 19890 and viral upper respiratory infections in September 1990 and August 1991. To date, the Veteran has not been examined by VA to determine the nature and etiology of his sinusitis and bronchitis. Accordingly, the Board finds that the foregoing evidence is sufficient to trigger VA's duty to assist to provide VA examinations. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006). 2. Entitlement to an increased rating for GERD is remanded. The Veteran was last afforded a VA examination to evaluate his GERD in February 2012. Subsequent to this evaluation, he reported symptomatology consisting of bloody stools and he could not eat certain foods. See February 2021 Board Hearing Transcript. Such evidence suggests a worsening of his symptomatology since his last VA examination. Accordingly, VA's duty to assist necessitates that this claim be remanded to schedule a new VA examination. The matters are REMANDED for the following actions: 1. Obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's sinusitis. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) Identify/diagnose any sinusitis disorder that currently exists or that has existed during the appeal period. b) The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed sinusitis disorder was caused by or related to his active duty service, to include any service-related exposures. In rendering the above opinion, the examiner must specifically consider and discuss: i) the Veteran’s December 2011 reports of being exposed to DS-2, oil well fires, trash burning pits, and burning human waste during active duty service; ii) the Veteran’s February 2021 Board hearing testimony; and iii) the STRs from October 1989, September 1990, and August 1991 showing sinus congestion and viral upper respiratory infection. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s bronchitis. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) Identify/diagnose any bronchitis disorder that currently exists or that has existed during the appeal period. b) The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed bronchitis disorder was caused by or related to his active duty service. In rendering the above opinion, the examiner must specifically consider and discuss: i) the Veteran’s December 2011 reports of being exposed to DS-2, oil well fires, trash burning pits, and burning human waste during active duty service; ii) the Veteran’s February 2021 Board hearing testimony; and iii) the STRs from October 1989, September 1990, and August 1991 showing sinus congestion and viral upper respiratory infection. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Obtain a VA examination from an appropriate examiner to determine the nature and severity of his service-connected GERD. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. All indicated studies should be completed. All findings must be fully reported. a) The examiner is instructed to discuss the presence (including frequency and severity) or absence of epigastric distress, dysphagia, pyrosis, regurgitation, substernal or arm or shoulder pain or other pain, vomiting, material weight loss, hematemesis or melena, and anemia. b) The examiner must state whether the combination of the applicable symptoms is productive of either severe impairment of health or considerable impairment of health. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED