Citation Nr: 21027762 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-04 789 DATE: May 6, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for residuals of nose and throat surgery, to include sinusitis is reopened. REMANDED Entitlement to service connection for residuals of nose and throat surgery, to include sinusitis is remanded. FINDING OF FACT 1. The claim for service connection for a for residuals of nose and throat surgery to, include sinusitis was last denied in an August 2013 rating decision. The Veteran did not perfect an appeal or submit new and material evidence within the appeal period, and the decision is final 2. Evidence received since the August 2013 denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of nose and throat surgery to include sinusitis. CONCLUSION OF LAW 1. The criteria to reopen the claim for service connection for residuals of nose and throat surgery, to include sinusitis have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1999 to December 2003 and from March 2008 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. 1. Whether new and material evidence has been received to reopen the claim for service connection for residuals of nose and throat surgery, to include sinusitis Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). The threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Veteran's claim for service connection for a residuals of nose and throat surgery to include sinusitis was initially denied in an August 2013 rating decision on the basis that the evidence did not show a current disability which is related to military service. The Veteran did not appeal the rating decision or submit new and material evidence within one year of the decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The evidence received since the August 2013 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, in March 2021, the Veteran testified that he had sinus related issues in Afghanistan and was given allergy medicine. He also testified that during active service in 2008, he had surgery through TriCare due to trouble breathing. Additionally, the Veteran testified that his duties in service exposed him to burn pits. Such evidence is presumed credible for purposes of determining whether new and material evidence has been submitted. The Board finds that some of the evidence received since the August 2013 denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for a residuals of nose and throat surgery to include sinusitis. Accordingly, new and material evidence has been received, and the claim for service connection for residuals of nose and throat surgery to include sinusitis is reopened. REASONS FOR REMAND 2. Entitlement to service connection for residuals of nose and throat surgery to include sinusitis is remanded The Veteran contends he has residuals of nose and throat surgery to include sinusitis that is due to service. In March 2021, he testified that one of his duties in service included the burning of feces and trash which was usually about 50 to 100 meter from where they stayed. He also testified that in 2008, while on active duty service, he had surgery through a private hospital due to trouble breathing. On his February 1999 enlistment examination, the Veteran reported "ear, nose and throat troubles (ENT)" with his tonsils and adenoids removed at the age of 7. Service treatment records indicates that Veteran was treated for ENT complaints in service. On his June 2003 post deployment health assessment, the Veteran reported that he was often exposed to smoke from burning trash and feces. A February 2017 VA examiner diagnosed sinusitis. Given the record before it, the Board finds that an opinion is needed. The record suggests the Veteran receives benefits from the Social Security Administration (SSA). However, upon review of the record, it appears that his SSA records have not been associated with the claims file. Such records should be requested on remand. The matters are REMANDED for the following action: 1. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. If the records are not available, the Veteran should be notified of such. 2. Request records from TriCare pertaining to the Veteran's nose and throat surgery in 2008. If a release form is needed, the Veteran should be asked to provide such. 3. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated his nose, throat and sinuses. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 4. After the above has been completed to the extent possible, schedule the Veteran for a VA examination to address the Veteran's claim for service connection for residuals of nose and throat surgery to include sinusitis. After a review of the claims file to include the Veteran's testimony, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed residuals of nose and throat surgery to include sinusitis is etiologically related to his service, to include exposure to smoke from burning trash and feces. The examiner should explain why or why not. 5. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, 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.