Citation Nr: 21027500 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-37 547 DATE: May 5, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a chronic sinus condition is reopened. To this extent only, the claim is granted. New and material evidence having been submitted, the claim of entitlement to service connection for headache or head pain due to head trauma is reopened. To this extent only, the claim is granted. New and material evidence having been submitted, the claim of entitlement to service connection for residuals of right ankle sprain is reopened. To this extent only, the claim is granted. REMANDED Entitlement to service connection for a chronic sinus condition is remanded. Entitlement to service connection for headache and/or neurologic condition is remanded. Entitlement to service connection for right ankle condition is remanded. FINDINGS OF FACT 1. A March 2010 rating decision denied service connection for a chronic sinus condition. The Veteran did not appeal. 2. Evidence received since the March 2010 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a chronic sinus condition and raises a reasonable possibility of substantiating the claim. 3. A March 2015 rating decision denied service connection for headaches or head pain due to trauma. The Veteran did not appeal. 4. Evidence received since the March 2015 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for headaches or head pain due to trauma and raises a reasonable possibility of substantiating the claim. 5. A March 2015 rating decision denied service connection for a right ankle sprain. The Veteran did not appeal. 6. Evidence received since the March 2015 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a right ankle sprain and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a chronic sinus condition. 38 U.S.C. § 5108 (2017); 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for headache or head pain due to trauma. 38 U.S.C. § 5108 (2017); 38 C.F.R. § 3.156. 3. New and material evidence has been received to open the claim of entitlement to service connection for right ankle sprain. 38 U.S.C. § 5108 (2017); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to December 1987. Evidence affiliated with the claims file also indicates that the Veteran served in the National Guard from February 1988 to April 1989 and June 1993 to May 1994 and in the Reserve from May 1994 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2020 during a virtual hearing; a transcript is of record. New and Material Evidence Under 38 U.S.C. § 5108 (2017), VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial regardless of whether the denial was on the merits or on procedural grounds to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). VA regulation defines "new and material evidence" as follows: "new evidence" means evidence not previously submitted to agency decisionmakers, and "material evidence" means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must 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.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). To establish whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue, or, if it is a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Chronic Sinus Condition Regarding the Veteran's claim for service connection for a chronic sinus condition, the RO originally denied the Veteran's claim in a March 2010 rating decision on the basis that there was "no evidence this condition began in military service or was caused by some event or experience in service." See March 2010 Rating Decision. The Veteran was notified of the RO's decision later that month and did not appeal further. Therefore, the March 2010 rating decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. The Veteran petitioned to reopen the claim in April 2016. The relevant evidence submitted since the March 2010 rating decision consists of current medical records, service treatment records, and lay statements. This evidence, evidence not previously submitted to decisionmakers and relating to unestablished facts necessary to support the claim (i.e., whether the Veteran has a current disability, and an in-service incurrence of his condition), raises a reasonable possibility of substantiating the claim and the Board finds that it constitutes new and material evidence. 38 C.F.R. § 3.156. Accordingly, as the Board finds that new and material evidence has been submitted, the claim for service connection for a chronic sinus condition is reopened. Id. 2. Headache or Head Pain Due to Trauma The Veteran's claim for service connection to head issues due to trauma was originally denied in a June 2009 rating decision based on the inadequate opinion of a March 2009 examination (discussed below). The Veteran was notified of the decision later that month and did not appeal. The Veteran in turn disagreed with the June 2009 rating decision via a VA Form 21-4138, Statement in Support of Claim. A Statement of the Case (SOC) was issued in May 2010, after which the Veteran did not appeal further, thereby making the June 2009 rating decision final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. The Veteran petitioned to reopen his claim as service connection for nerve damage in December 2011, after which his claim was denied in a July 2012 rating decision on the basis of lack of new and material evidence. See July 2012 Rating Decision Codesheet. The Veteran was notified of the RO's decision later that month and did not appeal further. Therefore, the July 2012 rating decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. The Veteran again petitioned to reopen his claim for neuropathic pain of the head in December 2014, after which his claim was again denied in a March 2015 rating decision based on a lack of new and material evidence. See March 2015 Rating Decision. The Veteran was notified of the RO's decision later that month but did not appeal further. Therefore, the March 2015 rating decision is the last prior final denial. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. The Veteran most recently petitioned to reopen his claim in April 2016. The relevant evidence submitted since the most recent prior final denial consists of private and VA medical records, service treatment records, and lay statements. This evidence, evidence not previously submitted to decisionmakers and relating to unestablished facts necessary to support the claim (i.e., whether the Veteran has a current disability, an in-service incurrence of his condition, and whether a relationship exists between his current disability and service), raises a reasonable possibility of substantiating the claim and the Board finds that it constitutes new and material evidence. 38 C.F.R. § 3.156. Accordingly, as the Board finds that new and material evidence has been submitted, the claim for service connection for headache or head pain due to trauma is reopened. Id. 3. Right Ankle Sprain The Veteran's claim for service connection for right ankle sprain was originally denied in an August 2012 rating decision on the basis that the evidence did not indicate that the Veteran's current right ankle sprain was related to service. See August 2012 Rating Decision Codesheet. The Veteran was notified of the RO's decision later that month and did not appeal further. Therefore, the August 2012 rating decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. The Veteran petitioned to reopen his claim for service connection for a right ankle condition in December 2014, after which his claim was reopened but denied on the merits in a March 2015 rating decision. See March 2015 Rating Decision. The Veteran was notified of the RO's decision later that month and did not appeal further. Thus, the March 2015 rating decision is the last prior final denial. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. The Veteran again petitioned to reopen his claim for service connection for a right ankle condition in April 2016. The relevant evidence submitted since the most recent March 2015 final denial consists of VA medical records, service treatment records, and lay statements. This evidence, evidence not previously submitted to decisionmakers and relating to unestablished facts necessary to support the claim (i.e., whether the Veteran has a current disability, and an in-service incurrence of his condition), raises a reasonable possibility of substantiating the claim and the Board finds that it constitutes new and material evidence. 38 C.F.R. § 3.156. Thus, as the Board finds that new and material evidence has been submitted, the claim for service connection for a right ankle sprain is reopened. Id. REASONS FOR REMAND The Board sincerely regrets the additional delay of the Veteran's appeal; however, further evidentiary development is necessary before the below-listed claims can be adjudicated on the merits. As noted above, evidence affiliated with the claims file indicates that the Veteran served on active duty from December 1984 to December 1987, and that he served in both the National Guard from February 1988 to April 1989 and from June 1993 to May 1994 and the Reserve from May 1994 to February 1999. Even though there are service treatment records and service personnel records affiliated with the claims file reflecting the Veteran's performance, assignments, duties, points, and awards, the exact periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should determine all periods of ACDUTRA and INACDUTRA. Additionally, as there is a question as to whether the Veteran's conditions manifested during ACDUTRA and/or INACDUTRA along with his active duty service, the Board finds that any and all outstanding service treatment records associated with his National Guard and Reserve service should also be obtained and opinions should be provided as to whether the Veteran's current disorders are etiologically linked to his ACDUTRA and/or INACDUTRA. The Board also acknowledges that the most recent medical records associated with the claims file for the Veteran's conditions are dated in 2017. On remand, any and all outstanding updated medical records for the Veteran's sinus condition, headaches/neuralgia, and right ankle, should be obtained and associated with the claims file. Moreover, the Board acknowledges that the Veteran has been diagnosed with various conditions related to the below-listed issues. As such, the Board finds it more appropriate to characterize the Veteran's claims for service connection broadly, and thus as claims for service connection for a chronic sinus condition, headaches and/or neurologic conditions, and a right ankle condition. 1. Service Connection for a Chronic Sinus Condition The Veteran has been diagnosed with various sinus related conditions, such as sinusitis and allergic rhinitis. See February 2009 VA Primary Care Assessment. His service treatment records also indicate that he was diagnosed with upper respiratory infections and right maxillary sinusitis while in service. See April 1987 Service Treatment Record; September 1987 Service Treatment Record. To date, the Veteran has not been afforded an examination to determine the nature and etiology of his current sinus condition. An examination must be obtained in conjunction with a claim if there is competent evidence of a current disability, evidence of an in-service event, injury, or disease, an indication that the current disability may be associated with the Veteran's service, and there is otherwise insufficient competent medical evidence to decide on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, the Board finds that, on remand, an examination and opinion must be obtained as to the nature and etiology of any and all sinus conditions attributable to the Veteran throughout the appellate period. 2. Service Connection for Headache/Neurologic Conditions As noted above, the Veteran underwent an examination in March 2009 (which was the basis of the original denial of this claim) to determine the nature and etiology of his diagnosed neurologic disability and/or headaches. The examiner concluded that the Veteran's condition was less likely than not linked to service because it was the result of his sinusitis and the Veteran's service treatment records did not reflect any further evaluation of his condition since being struck on the head with a bottle. However, the Veteran's service treatment records indicate that he reported headaches both before and after the May 1986 incident. See November 1985 Service Treatment Record (Veteran reports reoccurring headaches); August 1986 Service Treatment Record (Veteran reports cut on his head began to bleed in July 1986 and that he would get dizzy, his head would hurt, and that he had to strain his eyes). He was also diagnosed with auricular temporal neuralgia in service. See August 1986 Service Treatment Record. Consequently, the Board finds that the March 2009 examination and subsequent April 2009 opinion were based on an inaccurate factual premise and are thus inadequate to determine the nature and etiology of the Veteran's current head conditions. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Therefore, the Board requests on remand an addendum opinion regarding the nature and etiology of the Veteran's current headaches and diagnosed neuralgia. 3. Service Connection for a Right Ankle Condition The Veteran was examined twice for his right ankle condition to ascertain the etiology of his condition. The first examination occurred in March 2012, at which time the examiner indicated that "it is possible that [the Veteran's] current pathology is related to issues he was followed for while in service." However, the examiner did not provide a rationale elaborating on this conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). This examination is therefore inadequate to determine the cause of the Veteran's right ankle disability. When the Veteran was evaluated again in March 2015, the examiner found that an opinion could not be formulated to determine the etiology of the Veteran's current condition without resorting to mere speculation. However, the examiner did not explain why this was so. See Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010). As such, the Board finds this examination to be inadequate. Consequently, as there is no adequate medical opinion of record determining the etiology of the Veteran's current right ankle disorder, the Board finds that a new opinion must be obtained on remand. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard, a report detailing the Veteran's award of retirement points will NOT represent compliance with this instruction. Rather, each and every date of ACDUTRA and INACDUTRA must be identified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. Any and all outstanding service treatment records from the Veteran's National Guard and Reserve service should also be obtained and associated with the claims file. 2. The RO should request the Veteran to identify any and all outstanding updated VA and/or private medical records related to his chronic sinus condition, headache/neuralgia, and right ankle condition, including from May 2017 forward. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records should be documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. After completing the foregoing development, schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any and all sinus related conditions attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the examiner, who must note its review. (a) The examiner should identify any and all sinus conditions (i.e., sinusitis, allergic rhinitis, etc.) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active duty service and/or ACDUTRA. In formulating his or her opinion, the examiner should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's VA medical records; (iii) The Veteran's private medical records; and (iv) The Veteran's competent lay statements, including those submitted as part of his July 2017 VA Form 9 and his October 2020 hearing testimony regarding the onset and continuity of his symptomatology. If the examiner determines that the Veteran's sinus condition(s) is/are less likely than not due to his active duty service and/or ACDUTRA, the examiner should discuss what other factor(s) caused the disorder(s). The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case for an addendum opinion to determine the nature and etiology of the Veteran's headaches and or any other neurologic conditions. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all headache and/or neurologic condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is/are the result of, his active duty service, ACDUTRA, and/or INACDUTRA. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's VA medical records; (iii) The Veteran's private medical records; and (iv) The Veteran's competent lay statements, including those submitted as part of his July 2017 VA Form 9 and his October 2020 hearing testimony, regarding the onset and continuity of his symptomatology. If the clinician determines that it is less likely than not that the Veteran's headache and/or neurologic condition(s) is/are less likely than not due to his active duty service, ACDUTRA, and/or INACDUTRA, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 5. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case for an addendum opinion to determine the nature and etiology of any and all right ankle condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should identify any and all right ankle condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's VA medical records; (iii) The Veteran's private medical records; and (iv) The Veteran's competent lay statements, including those submitted with his July 2017 VA Form 9 and his October 2020 hearing testimony, regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran's right ankle condition(s) is/are less likely than not due to his active duty service, ACDUTRA, and/or INACDUTRA, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Seserman 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.