Citation Nr: 21032495 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-18 153 DATE: May 27, 2021 ORDER New and material evidence has been received to reopen a previously denied claim for a respiratory disorder. New and material evidence has been received to reopen a previously denied claim for a disability of the nose and sinuses. REMANDED Entitlement to service connection for a respiratory disorder, to include pneumonia, frequent colds, and chronic upper respiratory infections, is remanded. Entitlement to service connection for a disability of the nose and sinuses, to include sinusitis, allergic rhinitis, and/or current residuals of an in-service broken nose and/or deviated septum, is remanded. FINDINGS OF FACT 1. In April 1969, VA denied a claim for service connection for frequent colds, sinusitis, and pneumonia; the Veteran did not appeal that decision and new and material evidence was not received during the appeal period. 2. Evidence received since April 1969 is new and relates to a previously unestablished fact necessary to substantiate claims for service connection for current disabilities of the respiratory system, nose, and sinuses. CONCLUSIONS OF LAW 1. The April 1969 decision denying service connection for frequent colds, sinusitis, and pneumonia is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the previously denied claim for service connection for current disabilities of the respiratory system, nose, and sinuses has been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1969. This case comes to the Board from a January 2015 decision of the Agency of Original Jurisdiction (AOJ), which declined his requests to reopen claims for service-connected compensation for nasal and upper respiratory disorders, which had previously been denied in April 1969. In March 2021, the Veteran testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. The issues in this appeal have been described in different ways at different times by the Veteran and in the claim processing documents issued by the AOJ. The April 1969 decision, for example, described the issue as service connection for frequent colds, acute sinusitis, and pneumonia. Subsequent documents described the claimed disabilities as chronic sinusitis, allergic rhinitis, emphysema, and chronic upper respiratory infections. The Veteran did not appeal the January 2015 AOJ's specific ruling denying service connection for a deviated septum and, in his substantive appeal (VA Form 9), he denied making a claim for emphysema. Nevertheless, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court explained that the Board must generally adopt a broad interpretation of claims for service-connected compensation and a claim should not be denied merely because the application for benefits may not have correctly identified the claimant's precise clinical diagnosis. Thus, the Board has organized the issues into one broad claim concerning any disorder of the lungs or respiratory system (including pneumonia, frequent colds, chronic upper respiratory infections) and another broad claim for any disease, disorder or physical injury to the nose and sinuses (including sinusitis, allergic rhinitis, nasal fracture or residuals of a deviated septum). Reopening The AOJ denied the claim for service connection for frequent colds, sinusitis, and pneumonia in April 1969. The record indicates that the AOJ mailed a copy of this decision with an explanatory letter to the Veteran at the address identified as the Veteran's address by previous correspondence from his representative. Because he did not appeal the April 1969 decision and failed to submit new and material evidence within the first year after he was notified of the decision, the April 1969 decision became final. 38 U.S.C. § 7105(c). VA may reopen and review a claim which was previously denied if new and material evidence is received or submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). VA will also reconsider a claim if it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The phrase "raises a reasonable possibility of establishing the claim" in 38 C.F.R. § 3.156(a), is viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The April 1969 decision does not include a list of the specific items of evidence available to the AOJ when it was issued. But the decision does acknowledge statements from the Veteran indicating that he had been hospitalized on three occasions for pneumonia at the Army Hospital in Fort Knox, Kentucky and on one occasion for sinusitis at a hospital in Vietnam. According to the decision, "There is no indication in the service records that the veteran was hospitalized for pneumonia or sinusitis during the entire period of active service." Since April 1969, the AOJ has received clinical records describing the Veteran's hospitalization for pneumonia at Ireland Army Hospital at Fort Knox in the late Winter and Spring of 1966, records of another hospitalization for pneumonia at Valley Forge hospital in Pennsylvania in the Autumn of 1966, and records of his hospital admission for sinusitis in Vietnam in the Autumn of 1967. This evidence is considered new because, according to the April 1969 decision, there was no evidence of any hospitalization for pneumonia or sinusitis available to the AOJ when the Veteran's initial claims were denied. The evidence is material because it has a tendency to prove that the Veteran experienced respiratory illness during his active duty service. Moreover, the dates of these clinical records indicate that they are service department records which existed and had not been associated with the claims file when VA first decided the claims. Thus, these records meet the definitions of new and material evidence under 38 C.F.R. § 3.156(a) and of relevant official service department records under subsection (c) of the same regulation. Under these circumstances, the Board must reopen and reconsider the claims previously denied in April 1969. REASONS FOR REMAND Although the Board regrets the need for further delay, it is necessary to remand the reopened claims for further development. The most recent available post-service VA records of the Veteran's medical treatment are dated March 2018. In October 2019, the Veteran submitted a written authorization for the AOJ to obtain copies of records of his medical treatment from the VA Medical Center in Cincinnati, Ohio between May 1973 and October 2019. It appears that the AOJ referred this authorization to the VA's Private Medical Records Retrieval Center, which issued a rejection notice because the "Provider listed is non-private." The records retrieval center was correct that, in general, written authorizations of the kind submitted by the Veteran are needed to obtain records from private providers, but not necessary to obtain a claimant's records from VA facilities. But this means that, instead of referring the authorization to the records retrieval center, the AOJ should have made its own request for any records from the Cincinnati VAMC within the scope of the Veteran's authorization which were not already associated with the claims file. See 38 C.F.R. § 3.159(c)(2). Although the AOJ obtained many records from the Cincinnati VAMC, there are no available records after March 2018 or before January 1996. It is possible that records of treatment between 1973 and 1996 may potentially be available but may require a written to the facility because the records were created before VA treatment records were stored on computers. And it seems likely that the AOJ can easily obtain the records of any VA treatment after March 2018 without further authorization. Because it is not clear that the AOJ has satisfied its duty to assist the Veteran, both claims will be remanded with instructions to obtain the potentially relevant outstanding VA medical records. In a May 2018 statement and in his hearing testimony, the Veteran suggested that his service treatment records are also incomplete. This was clearly true when he requested copies of them from the National Personnel Records Center (NPRC) in 2006 and when he requested copies of his VA records and service treatment records from VA in January 2017. But in January 2018, the AOJ obtained copies of clinical records concerning the Veteran's in-service hospital admission at Fort Knox and Valley Forge in 1966 and records concerning his admission to the 36th Evac Hospital in Vietnam in 1967. To make sure that the Veteran's service treatment records are complete, the AOJ should write to the Veteran explaining that VA has records concerning these hospitalizations. The AOJ should invite the Veteran to identify any other hospital admissions or potentially outstanding outpatient or clinical records concerning his active duty service. During his hearing testimony, he indicated that he believes he experiences frequent sinus trouble as a result of an incident during his second deployment to Vietnam, because another soldier attacked him and broke his nose. He should be advised that his service treatment records do not mention this incident or a broken nose and, if he was treated or admitted to a hospital as a result of this incident, he should make this clear to the AOJ and identify the approximate dates and locations of that treatment. The AOJ obtained medical opinions from a VA physician assistant in March 2018, who completed examination questionnaires for sinusitis, rhinitis, and other conditions of the nose throat, larynx and pharynx, and for respiratory conditions (other than tuberculosis and sleep apnea). Both questionnaires indicate that there was no in-person examination and that the examiner collected the relevant information from a review of the available records. The only disorders diagnosed by the examiner were emphysema and allergic rhinitis. Through his representative, the Veteran has complained that "he neither received an exam and/or was given an inadequate exam for these conditions. . ." Because the service treatment records indicate a pattern of respiratory illness which may wax and wane and the rationales for the unfavorable March 2018 opinions did not address the Veteran's suggestion that an in-service nasal fracture caused him to experience "chronic sinusitis" and "constant drainage into his chest. . ." the AOJ should arrange in-person respiratory and nose and sinus examinations on remand. The AOJ should obtain a new opinion from the post-remand examiner addressing the Veteran's contentions. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran's medical treatment from the VA Medical Center in Cincinnati, Ohio since March 2018 and between June 1973 and January 1996. The AOJ is advised that the electronic claims file already includes treatment records from the Cincinnati VAMC between January 1996 and March 2018. The AOJ is further advised that treatment records prior to 1996 may not be in electronic form and could potentially require a specific written records request to the relevant facility or records depository. 2. Write to the Veteran to confirm the completeness of his service treatment records. He should be advised that, in January 2018, VA obtained previously unavailable clinical records concerning multiple hospitalizations for pneumonia at Ireland Army Hospital at Fort Knox, Kentucky between February and April 1966, a subsequent hospitalization for pneumonia at Valley Forge General Hospital between October and December 1966 and a hospitalization for acute sinusitis at the 36th Evac Hospital in Vietnam in October 1967. However, the currently available service treatment records do not mention the broken nose the Veteran described during his March 2021 hearing testimony. Ask the Veteran if he received medical treatment for his broken nose and, if so, ask him to identify the approximate dates of treatment and the facility where he received the treatment. If the Veteran's response to the requested letter indicates that currently unavailable service treatment records could potentially exist, the AOJ should make appropriate efforts to obtain those records. 3. Schedule the Veteran for an in-person respiratory, nasal, and sinus examination with a qualified person to determine the nature and etiology of his claimed disabilities. The entire claims file, including any new records or information obtained as a result of the efforts required by parts one and two of this remand, must be made available to, and be reviewed by, the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. In his or her report, the examiner should describe any diagnosed respiratory, sinus or nasal disorders (to include recurrent or chronic upper respiratory infections, pneumonia, residuals of pneumonia, deviated septum, nasal fracture, residuals of nasal fracture, sinusitis, allergic rhinitis, emphysema, and/or frequent colds). For each disorder identified, the examiner should further indicate whether it is at least as likely as not (50 percent or more probability) that the current disability had its onset during service or is otherwise related to any in-service disease, injury, or event. The examiner should provide a clear rationale, fully explaining the medical reasons for his or her opinions. In his or her report, the examiner should address the Veteran's hearing testimony, attributing sinusitis, chronic upper respiratory infections, and "constant drainage into his chest" to in-service pneumonia and sinusitis, for which he was hospitalized in-service, and to a claimed injury to his nose. The examiner is advised that the Veteran is competent to provide information about symptoms he has personally experienced. 4. The AOJ must ensure that the examination reports and opinions requested above comply with the directives of this remand. If any report or opinion is deficient, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.