Citation Nr: 21040829 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-37 093 DATE: July 7, 2021 ORDER The appeal as to whether new or material evidence has been received to reopen a claim for service connection for a lung disability is granted. The appeal as to whether new or material evidence has been received to reopen a claim for service connection for a sinus disability, to include allergic rhinitis, is granted. Entitlement to service connection for allergic rhinitis is granted. REMANDED Entitlement to service connection for a lung disability is remanded. FINDINGS OF FACT 1. A July 2013 rating decision, in pertinent part, denied entitlement to interstitial lung disease due to asbestos exposure, no appeal was taken from that determination and no new and material evidence was received during the appeal period; however, evidence received subsequent to the July 2013 rating decision is new, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 2. Most recently, a March 2006 rating decision, in pertinent part, confirmed and continued a previous denial of service connection for sinusitis, no appeal was taken from that determination, and new and material evidence was not received with one year thereafter; however, evidence received subsequent to the March 2006 rating decision is new, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran's favor, his allergic rhinitis began during active service. CONCLUSIONS OF LAW 1. Evidence added to the record since the final July 2013 rating decision, which in pertinent part, entitlement to service connection for interstitial lung disease due to asbestos exposure, is new and material, and the claim for service connection is reopened. 38 U.S.C. §§ 5108, 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. Evidence added to the record since the final March 2006 rating decision, which in pertinent part, entitlement to service connection for sinusitis, is new and material, and the claim for service connection is reopened. 38 U.S.C. §§ 5108, 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. The criteria for service connection for allergic rhinitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1972 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 (lung disability) and August 2016 (rhinitis) rating decisions of the Department of Veterans Affairs (VA). Concerning the claim to the Veteran's claim for service connection rhinitis, a claim for sinusitis was previously denied in final rating decisions dated in August 2001, April 2004, and March 2006. Specifically, the March 2006 rating decision, noted, in part, that new evidence from a private physician dated February 2006 showed treatment for allergic rhinitis. Additionally, the August 2016 rating decision, which on which the current appeal is based, also denied a claim to reopen entitlement to service connection for a sinusitis. However, the Veteran did not appeal the denial of his claim to reopen entitlement to service connection for sinusitis and limited the scope of his appeal to consideration of rhinitis. Nonetheless, purposes of determining whether a new claim has been submitted under 38 U.S.C. § 7104 (b), the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Further, the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively-after there has been a finding of fact based upon competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009). In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. As described above, with respect to the current issue of entitlement to service connection for rhinitis, a broad scope of the claim is warranted because the present claim turns upon essentially the same history, factual bases, and claimed symptomatology as were considered in the prior final rating decisions - that the Veteran experiences a chronic sinus disability, to include allergic rhinitis, as a result of his active service. As such, the threshold question of whether new and material evidence has been received must be addressed. Accordingly, the claim is properly characterized as whether new and material evidence has been received to reopen a claim of entitlement to service connection for a sinus disability, to include allergic rhinitis. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). In December 2016 correspondence, the Veteran revoked Disabled American Veterans as his representative. To date, the Veteran has not appointed another representative. As such, the Board will recognize the Veteran as unrepresented. Additional evidence, both developed by VA and submitted by the Veteran, was associated with the record subsequent to the most recent, June 2018 Statement of the Case (SOC), and November 2018 SOC, issued for the appeal herein. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, although the Veteran's relevant substantive appeals for the claims at issue were each filed after February 2, 2013, and the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the entirety of the additional evidence was submitted by the Veteran. Nevertheless, as the claims for a lung disability and a sinus disability are reopened, as service connection for allergic rhinitis is granted, and as the reopened claim for a lung disability is remanded for additional development, there is no prejudice to the Veteran in this regard. As a final initial matter, throughout the pendency of claims at issue, and most recently in March 2021, the Veteran requested a copy the claims file. On May 12, 2021, a complete copy of the claims file was sent to the Veteran. Thus, as the Veteran has been provided with the requested copy of the claims file, the Board may proceed with appellate review. New and Material Evidence Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Whether new or material evidence has been received to reopen a claim for service connection for a lung disability The Veteran has primarily asserted in-service asbestos exposure from his barracks when stationed at Fort Campbell, Kentucky. A July 2013 rating decision denied service connection for interstitial lung disease due to asbestos exposure based on a finding that the Veteran's VA treatment records showed interstitial lung disease but the evidence did not link this disability to his service. He was notified of the decision later the same month. The Veteran did not appeal the denial of the claim and no new and material evidence was received within the appeal period. Following the July 2013 rating decision, the record also reflects that service treatment records (along with other documents such as a March 1975 rating decision and VA examination reports) were associated with the record in March 2018. However, as to the service treatments records with a receipt date in March 2018, review of the Veterans Benefits Management System reflects these records were uploaded in March 2018, and this date is thus is associated the scanning date rather than the date of receipt of these records. In this regard, the July 2013 rating decision explicitly referenced review of the Veteran's service treatment records. Moreover, to the extent additional service records were received after July 2013 rating decision, these records are not relevant as they do not address factual issue that was dispositive against the Veteran in the July 2013 rating decision. Kisor v. McDonough, Docket No. 2016-1929, 2021 U.S. App. Vet. Claims LEXIS 12945 (Apr. 30, 2021). Thus, the July 2013 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Further, the Veteran has not argued the July 2013 rating decision is not final. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). New evidence added to the record since the July 2013 rating decision, includes an article submitted by the Veteran in January 2020, which discussed asbestos on Army bases. Specifically, this article described that construction of Fort Campbell was finished in 1942 and also generally noted that asbestos may be a risk if the installation was built prior to 1980. This evidence is material because supports the Veteran's contentions of in-service asbestos exposure, and is presumed credible for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. Accordingly, the claim to reopen a claim for service connection for a lung disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Whether new or material evidence has been received to reopen a claim for service connection for a sinus disability, to include allergic rhinitis An August 2001 rating decision initially denied service connection for sinusitis based on a finding the condition was not occurred or caused by service. The August 2001 rating decision noted a May 1973 service medical record reflected a complaint and treatment for left sided nasal congestion and headaches, and examination revealed mild tenderness of the maxillary frontal areas and May 1973 sinus series films provided an impression of pansinusitis. The August 2001 rating decision also noted the Veteran was seen in 1980 with a history of sinus problems since 1973. The Veteran was notified of the decision later the same month. The Veteran did not appeal the denial of the claim and no new and material evidence was received within the appeal period. Thereafter, an April 2004 rating decision continued the previous denial of service connection of the claim for sinusitis as new and material was not received, and the Veteran was notified of the decision later the next month. The Veteran did not appeal the denial of the claim and no new and material evidence was received within the appeal period. Most recently, a March 2006 rating decision confirmed and continued the previous denial of service connection for sinusitis. The March 2006 rating decision noted that February 2006 private medical records showed treatment for allergic rhinitis, and although this evidence was new, it was not material, and continued the denial of the claim. The Veteran was notified of the decision later the same month. The Veteran did not appeal the denial of the claim and no new and material evidence was received within the appeal period. Following these rating decisions, the record also reflects that service personnel records were associated with the record in June 2012 and, as discussed above, service treatment records (along with other documents such as a March 1975 rating decision and VA examination reports) were associated with the record in March 2018. However, as to the service treatments records with a receipt date in March 2018, review of the Veterans Benefits Management System reflects these records were uploaded in March 2018, and this date is thus is associated the scanning date rather than the date of receipt of these records. In this regard, as discussed above, the August 2001 rating decision explicitly discussed relevant service treatment records. Moreover, to the extent additional service records were received these rating decisions, including the Veteran's service personnel records, these records are not relevant as they do not address factual issue that was dispositive against the Veteran in prior rating decision. Kisor v. McDonough, Docket No. 2016-1929, 2021 U.S. App. Vet. Claims LEXIS 12945 (Apr. 30, 2021). Thus, the August 2001, April 2004, and March 2006 rating decision are final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Further, the Veteran has not argued these rating decision are not final. Lang, 971 F.3d at 1352. New evidence added to the record since the March 2006 rating decision, includes a June 2018 examination report addressing the claim. Specifically, while the June 2018 examination report provided a negative nexus opinion, the June 2018 examiner endorsed a diagnosis of allergic rhinitis in 1978, which was only a few years after the Veteran's separation from service. This evidence is new and it is also material because it generally supports the Veteran's contention his allergic rhinitis onset during his active service and continued thereafter. Accordingly, the claim to reopen a claim for service connection for a sinus disability, to include rhinitis, is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 3. Entitlement to service connection for a sinus disability, to include rhinitis As the Board reopened the claim as discussed above, and the AOJ adjudicated the issue on a de novo basis; there is no prejudice to the Veteran by proceeding with a decision on the merits. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board concludes that the Veteran has a current sinus disability, best characterized as allergic rhinitis, that began during active service. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303(a). Specifically, a June 2018 VA examiner endorsed a diagnosis of allergic rhinitis, which is consistent with the Veteran's medical records. Thus, the question becomes whether the Veteran's current disability of allergic rhinitis is related to service. In this regard, the June 2018 VA examiner found the Veteran's allergic rhinitis was less likely than not incurred in or caused by the sinus condition/complaints that occurred during service. The June 2018 VA examiner noted that the Veteran's service treatment records and VA treatment records that reportedly discussed chest pain and a sinus condition were reviewed. The June 2018 VA examiner also noted the Veteran's July 1972 enlistment examination was silent for a sinus condition and that his May 1974 discharge examination was silent for a sinus condition. Also, as discussed above, the June 2018 VA examiner also noted the Veteran reported the condition began in 1978, and accordingly, endorsed a diagnosis of allergic rhinitis which onset in 1978. However, the June 2018 VA examiner did not explicitly discuss the Veteran's service treatment records which documented his sinus related issues but merely noted review of service treatment records which reportedly discussed a sinus condition. In this regard, May 1973 imaging found complete clouding of the left maxillary antrum and rounded soft tissue density at the base of the right maxillary antrum and some increased density at the base of the frontal sinuses, and that these findings were consistent with sinus disease in these areas. The May 1973 imaging provided an impression of pansinusitis. A subsequent May 1973 service treatment record also provided an impression of sinusitis. While the Board recognizes the June 2018 VA examiner documented the Veteran reported his allergic rhinitis onset post-service in 1978, a June 1980 VA treatment record documented, in part, that the Veteran reported sinus problems since 1973, which is consistent with his service treatment records. Also, a February 2006 and March 2011 private medical records documented, in part, the Veteran's symptoms of rhinitis had been occurring for years. Further in his July 2018 VA Form 9, substantive appeal, the Veteran reported went to sick call for his sinus/rhinitis symptoms. He also noted that the VA examiner did not inquire as to the continuity of his rhinitis and/or sinusitis symptoms. Given the evidence outlined above, and with resolution of doubt in the Veteran's favor, the Board the evidence provides for an onset of symptomology related to the Veteran's allergic rhinitis during his active service. As discussed, this finding is consistent with the Veteran's service treatment records which documented sinus related complaints. Thus, with resolution of reasonable doubt in the Veteran's favor, the Board finds that the Veteran's allergic rhinitis onset during his active service. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, entitlement to service connection for allergic rhinitis is granted. REASONS FOR REMAND 1. Entitlement to service connection for a lung disability is remanded. As discussed above, the Veteran has primarily asserted in-service asbestos exposure from the barracks when stationed at Fort Campbell, Kentucky. However, in a September 2018 statement, the Veteran requested his service records be obtained in order to verify the 30 days he spent on a temporary duty assignment in 1973 at Camp Dunn, in New York, removing asbestos from old structures. While some service personnel records were obtained in June 2012, these do not appear complete, and do not show the Veteran's reported service at Camp Dunn, New York in 1973. Thus, a remand is required to allow VA to obtain any additional service personnel records. In addition, more information is needed to allow the Board to make a fully-informed decision. In this regard, a June 2018 VA examiner, within the examination report itself, endorsed a diagnosis of interstitial lung and described the Veteran had had symptoms of myopathy, which resulted in treatment and a diagnosis of interstitial lung disease. Consistent with this diagnosis, during the pendency of the claim received by VA in May 2015, a July 2015 VA treatment record provided, in part, an assessment of Sjogren's syndrome with polymyositis, myopathy with interstitial lung disease, status post admission to Little Rock VA in September 2011. However, in the corresponding opinion, the June 2018 VA examiner found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness as the Veteran's symptoms were subjective only, objective examination was normal, and there was no objective evidence of a chronic condition. Thus, it is unclear whether the Veteran has interstitial lung disease, and if so, whether it is at least as likely as not related to an in-service injury, event, or disease. Thus, a remand is required for another examination. Finally, in light of the remand of this claim for other matters, updated VA treatment records, from July 2015 (excluding records already of record dated in June 2016 and March 2017) to the present, should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain any of the Veteran's updated VA treatment records from July 2015 (excluding records already of record dated in June 2016 and March 2017) to the present. 2. Request from all appropriate source(s) a complete copy of any additional service personnel records for the Veteran that might exist, to particularly include any temporary duty service at Camp Dunn, New York in 1973. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. The evidence procured, if any, should be associated with the record. If no additional records are available, the record should be annotated to reflect that fact, and the Veteran should be notified of any inability to obtain the requested records. 3. Schedule the Veteran for a VA examination for his claimed lung disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Reconcile all lung diagnoses of record identified currently, proximate to, or during the pendency of the claim. The examiner should provide an explanation for any discrepancy as to why a diagnosis of interstitial lung disease was provided, including as noted in a July 2015 VA treatment record, if the Veteran is found not to have such condition (for example whether the condition resolved or the diagnosis was made erroneously). 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 below. (b.) If a lung disability, to include interstitial lung disease, is diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Please explain. 4. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.