Citation Nr: 22015103 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-22 313A DATE: March 16, 2022 ORDER As new and material evidence has been submitted regarding the claim for service connection for a sinus condition, the Veteran's claim is reopened. As new and material evidence has been submitted regarding the claim for service connection for a lower back condition, the Veteran's claim is reopened. REMANDED Entitlement to service connection for a sinus condition is remanded. Entitlement to service connection for a lower back condition is remanded. FINDINGS OF FACT 1. By a March 2014 rating decision, the Veteran's claim for service connection for a sinus condition was denied since there was no objective evidence that this condition was incurred in, caused by, or related to his active military service. 2. Evidence received since the March 2014 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating a claim for service connection for a sinus condition. 3. By a September 2012 Regional Office (RO) determination, the Veteran's claim for service connection for a lower back disorder was denied since the evidence did not show an event, disease, or injury in service. 4. Evidence received since the September 2012 RO determination is not cumulative or redundant and raises a reasonable possibility of substantiating a claim for service connection for a lower back disorder. CONCLUSIONS OF LAW 1. The March 2014 rating decision denying the Veteran's claim for service connection for a sinus condition is final. See 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for a sinus condition has been submitted. See 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). 3. The September 2012 RO determination denying the Veteran's claim for service connection for a lower back disorder is final. See 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2020). 4. New and material evidence sufficient to reopen the Veteran's claim for service connection for a lower back disorder has been submitted. See 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to August 1986, and from August 1986 to May 1990. Notably, the Veteran received a bad conduct character of service for the period of August 1986 to May 1990. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In light of the fully favorable determination in this case with regard to the applications to reopen the previously denied claims, no discussion of compliance with VA's duty to notify and assist is necessary in this regard at this time. New and Material Evidence 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). 1. As new and material evidence has been submitted regarding the claim for service connection for a sinus condition, the Veteran's claim is reopened. By a March 2014 rating decision, the Veteran's claim for service connection for a sinus condition was denied on the basis that there was no objective evidence that this condition was incurred in, caused by, or related to his active military service. At the time of this denial, post-service medical records, some service treatment records, and statements from the Veteran were considered. The new evidence submitted since this denial consists primarily of statements and testimony from the Veteran, post-service medical records, and an October 2018 statement from the Veteran's former spouse. With regard to the post-service medical records, the claims file contains a July 2021 letter from a VA physician, in which it was opined that the Veteran's chronic back pain and allergy symptoms are as likely as not related to his military service. As the new evidence addresses whether the Veteran has a sinus condition related to his service, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a sinus condition. As such, the claim for service connection for a sinus condition is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. 2. As new and material evidence has been submitted regarding the claim for service connection for a lower back condition, the Veteran's claim is reopened. By a September 2012 RO determination, the Veteran's claim for service connection for a lower back disorder was denied since the evidence did not show an event, disease, or injury, in service. At the time of this denial, post-service medical records, some service treatment records, and statements from the Veteran were considered. The new evidence submitted since this denial consists primarily of statements and testimony from the Veteran, post-service medical records, and an October 2018 statement from the Veteran's former spouse. With regard to the post-service medical records, the claims file contains a July 2021 letter from a VA physician, in which it was opined that the Veteran's chronic back pain and allergy symptoms are as likely as not related to his military service. As the new evidence addresses whether the Veteran has a back condition related to his service, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a lower back condition. As such, the claim for service connection for a lower back condition is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. REASONS FOR REMAND The Veteran is seeking service connection for a sinus condition and a lower back condition. At the August 2021 hearing, the Veteran asserted that his back was injured from a physical assault during training, by falling while on a ship, and from working on a small boat during service. With regard to his alleged sinus condition, the Veteran testified that, as part of his duties in service as an electrician on a boat, he had to mix sulfuric acid in water in order to care for the batteries, exposing him to fumes. He also asserted that his sinuses were affected by the weather and by smoke and chemical inhalation from fires during service. At the August 2021 hearing, the Veteran testified that he had been receiving VA treatment dating back to the early 1990s. The claims file contains VA treatment records from several VA facilities but none dating back to the early 1990s. As such, these issues must be remanded in order to obtain all outstanding VA treatment records. Additionally, the Board notes that the entirety of the Veteran's service treatment records have been determined to be unavailable. Specifically, a February 1989 service treatment record reflects that the Veteran's medical record was lost while he was in transit. However, the available service treatment records reflect that the Veteran reported back pains, nasal congestion, and throat irritation in a January 1989 Report of Medical History. Moreover, post-service medical records reflect that the Veteran has been treated with flunisolide and fluticasone and has been noted to have allergic rhinitis and L5-S1 with degenerative disc/mild facet arthrosis. See VA treatment records, March 2008, July 2008, November 2021, and December 2021. In a July 2021 letter from a VA physician, the physician opined that the Veteran's chronic back pain and allergy symptoms are as likely as not related to his military service. In light of this evidence, the Board finds that the Veteran should be scheduled for appropriate VA examinations to determine the etiology of any diagnosed lower back disabilities or sinus conditions. In this regard, the Board acknowledges that the DD-214 Form for the Veteran's period of service from August 1986 to May 1990 reflects that the Veteran received a bad conduct character of service. Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12 (c) applies. 38 C.F.R. § 3.360 (b) (2020). As such, in rendering any opinions, the VA examiners should specifically consider the etiology of the Veteran's claimed back and sinus conditions in relation to his period of service from September 1981 to August 1986. The matters are REMANDED for the following action: 1. Associate the following with the claims file: (a.) All electronic and archived paper records from the Atlanta VA Health Care System and associated outpatient clinics prior to March 2000 and from February 2022 to the present; [The Atlanta VA Health Care System must make a search of PAPER records prior to March 2000, with a negative response documented for the file if no records are found.] (b.) All available records from the Carl Vinson VA Medical Center (VAMC) and associated outpatient clinics from December 2021 to the present; and (c.) All available records from the Southeast Louisiana Veterans Health Care System and associated outpatient clinics prior to August 2006. 2. DO NOT PROCEED WITH THE FOLLOWING until all above records are obtained to the extent possible. 3. Schedule the Veteran for a VA examination for his claimed sinus condition. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all current sinus conditions. Then, the examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed sinus condition was incurred in, or caused by, the Veteran's period of military service from September 1981 to August 1986, to include his reports of exposure to fumes while working as an electrician, weather, and smoke and chemical inhalation from fires. In rendering an opinion, the examiner should also address the July 2021 opinion from the Veteran's VA treating physician. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 4. Schedule the Veteran for a VA examination for his claimed lower back condition. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all current lower back disabilities. Then, the examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed lower back disability was incurred in, or caused or aggravated by, the Veteran's period of military service from September 1981 to August 1986, to his include his reports of a physical assault, falling on a ship, and working in a small boat during service. In rendering an opinion, the examiner should also address the July 2021 opinion from the Veteran's VA treating physician. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.