Citation Nr: 22018122 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-35 648 DATE: March 28, 2022 ORDER Reconsideration of the previously denied claim of entitlement to service connection for residuals of a traumatic brain injury (TBI), to include headaches, is warranted. New and material evidence having been received, the petition to reopen the claim for service connection for tinnitus is granted. New and material evidence having been received, the petition to reopen the claim for service connection for sleep apnea, to include as secondary to service-connected anxiety disorder, is granted. New and material evidence having been received, the petition to reopen the claim for service connection for rhinitis is granted. Entitlement to service connection for rhinitis is denied. REMANDED Entitlement to service connection for residuals of a TBI, to include headaches, is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected anxiety disorder, is remanded. Entitlement to service connection for a right wrist nerve condition is remanded. FINDINGS OF FACT 1. The Agency of original jurisdiction (AOJ) received additional service department records relevant to the issue of service connection for residuals of a TBI, to include headaches, that existed prior to the previous denial and had not been associated with the claims file. 2. In an unappealed February 2014 rating decision, the Regional Office denied service connection for tinnitus, sleep apnea and rhinitis. 3. Since the final February 2014 rating decision, new evidence has been associated with the claims file which raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for tinnitus, sleep apnea and rhinitis. 4. The persuasive evidence of record is against finding that the Veteran's rhinitis began during active service or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. Reconsideration of the previously denied claim of entitlement to service connection for residuals of a TBI is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.156(c). 2. The February 2014 rating decision denying the Veteran's service connection claims for tinnitus, sleep apnea and rhinitis is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 3. Since the February 2014 rating decision, new and material evidence has been received to reopen the service connection claims for tinnitus, sleep apnea and rhinitis. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 4. The criteria for service connection for rhinitis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to May 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in June 2021. Additional VA treatment records were associated with the claims file following the June 2018 Supplemental Statement of the Case. Upon review, however, these records are not pertinent to the issues on appeal. As discussed below, the Veteran's claim for rhinitis is being denied for reasons unrelated to the information contained in these records. Petitions to reopen the Veteran's remaining claims were granted, and the matters are being remanded for further development. Accordingly, the recently received records do not have any bearing on the issues decided in this decision and a waiver of regional office consideration is not necessary. Reconsideration Residual of TBI/headaches Historically, the claim of service connection for a headache disability as due to a head injury was denied in January 2006, January 2007, February 2014 and the September 2016 rating decision on appeal. In March 2016, the Veteran submitted what appears to be service department record from 1994, but neither the Veteran's name nor any other identifying information is on the record. See 1994 progress notes, submitted March 2016. This record relates only to the issue of whether the Veteran had a head injury in 1994. This VA treatment record was not previously part of the electronic record. Therefore, the Board does not need to adjudicate the issue of whether new and material evidence has been received for this claim and reconsideration of the original claim is appropriate. 38 C.F.R. § 3.156(c) New and material In general, decisions of the RO and the Board that are not appealed in the proscribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Id. By way of background, the claims for service connection for tinnitus, sleep apnea, and rhinitis were previously denied in a February 2014 rating decision. In March 2014 the Veteran submitted a notice of disagreement (NOD) and a statement of the case (SOC) was issued in November 2015. The Veteran attempted to perfect his appeal with the submission of a VA Form 9 in March of 2016, however, that submission was untimely. The Veteran was notified that his appeal was untimely and provided instructions on how to appeal but did not appeal that determination. As VA did not receive a substantive appeal within the proscribed time, the February 2014 rating decision became final. In May 2016, the Veteran submitted new claims for service connection for tinnitus, sleep apnea, and rhinitis, which were denied after a finding that new and material evidence had not been received. Tinnitus As noted above, the claim for service connection for tinnitus was previously denied in a February 2014 rating decision. In this decision, the RO found that there was no link between service and his tinnitus. In May 2016 the Veteran filed a new claim for service connection for tinnitus. The evidence associated with the claims file after the February 2014 rating decision includes a September 2016 VA audiologic examination and a December 2016 statement from the Veteran indicating that a medical professional told him that his tinnitus could be related to antibiotic use in service. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely the existence of a relationship between the Veteran's active-duty service and his diagnosed disability. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. Sleep Apnea In February 2014, the claim for service connection for sleep apnea was denied based on the absence of an in-service event, disease, or injury. In May 2016 the Veteran filed a new claim for service connection for sleep apnea. The evidence associated with the claims file after the February 2014 rating decision includes an August 2021 statement from a fellow serviceman indicating that the Veteran snored and had instances of "obstruction where it appeared he stopped breathing" while sleeping. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely the existence of a possible in-service incurrence of his current condition. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. Rhinitis In February 2014, the Veteran's claim for service connection for rhinitis was denied based on the absence of an event, disease, or injury in service. In May 2016 the Veteran filed a new claim for service connection for his rhinitis. The evidence associated with the claims file after the February 2014 rating decision include the Veteran's contention that he was exposed to water contaminated with jet fuel while on his ship. The Veteran stated the water left an oily film on his body after bathing, and he had to mix it with powdered flavoring to mask the taste. See December 2016 Correspondence. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely the possible existence of an in-service injury. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. Service connection In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Rhinitis The Veteran maintains that his rhinitis is related to his service. He asserted that he drank and bathed in water contaminated with jet fuel which caused his rhinitis. The Veteran stated the water left an oily film on his body after bathing and it tasted horrible. The Veteran also stated that he would get headaches, indigestion, and stomach aches after drinking the water. Service treatment records do not demonstrate any diagnosis or treatment for rhinitis. Additionally, there is no evidence of an ongoing sinus disability on the Veteran's April 1996 separation examination. Upon separation of service, the examiner noted that the Veteran's sinuses were clinically normal. On the corresponding report of medical history, the Veteran denied ever having sinusitis or hay fever in service. Additionally, the 1996 examiner found the Veteran's head and gastrointestinal system clinically normal, and the Veteran self-reported he did not experience stomach or intestinal trouble, or frequent headaches. To the extent the Veteran reported that he experienced stomach and headaches after drinking the water on the ship, the Board finds the contemporaneous statements made on his 1996 self-report of medical history specifically denying stomach trouble or frequent headaches more credible than his subsequent statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran's service treatment records contain one report of headaches in December 1995 associated with an influenza diagnosis. Service personnel records indicate that he served aboard the USS Saratoga from August 1992 to May 1996. If the Veteran had experienced repeated stomach aches or headaches throughout his service on the USS Saratoga after drinking water, it would be expected that he would have described such symptomatology in his self-report of medical history, or that similar findings would have been noted in his separation physical or in his service treatment records. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The Veteran testified that he wasn't sure when his rhinitis symptoms started, but it was after service. At his hearing, the Veteran indicated memory concerns regarding dates and timelines and stated his treatment records would verify his diagnosis. See June 2021 transcript. Post service treatment records demonstrate the Veteran reported sporadic sinus pain in February 2006 and then in March 2008. In March 2013, the Veteran underwent diagnostic testing and was diagnosed with allergic rhinitis, he reported that his symptoms are worse when he is near grass. The Veteran has stated that he believes the water he drank and bathed in was contaminated with jet fuel, which caused his rhinitis. As shown above, the Board finds his statements that he experienced stomach and headaches after drinking the water not credible. While he is competent to report on the events he experienced while on active duty, such as the taste of water or the feeling it left on his body; he is not competent to identify why or how the water was different. Such a finding requires scientific testing to identify the chemical composition of the water to determine what, if any, chemicals were present. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Aside from the Veteran's contention, there is no other indication in the file that the Veteran was exposed to contaminated water in service. Even if the Board found the Veteran was exposed to fuel contaminated water, which it does not, there is still no competent evidence suggesting a link between his rhinitis and service. The Veteran's condition manifested years after service, and there is no evidence that the condition is related to an in-service injury, disease or event. The Board acknowledges the Veteran has not been given an examination to determine the etiology of his disability. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Only the Veteran's contentions provide any suggestion of such association between his rhinitis and service, and the Board does not find the Veteran's contentions to rise to the level of the 'indication of an association' referred to in 38 U.S.C. § 5103A or in McLendon. Although lay statements may be sufficient to establish an indication that the disability or symptoms may be related to service, there are some instances in which the lay evidence falls short of satisfying this standard. See Colantonio v. Shinseki, 606 F.3d 1378 (2010). Here, the Board finds that the Veteran's statements linking his disability to service do not satisfy the 'indication of an association' element. These statements are entitled to no probative value because they are conclusory generalized statements, with no rationale provided. As shown, the Veteran is not competent to make such conclusions. Further, the Veteran testified that he did not remember a doctor ever telling him there was a relationship between contaminated water and rhinitis. See June 2016 hearing transcript. If a Veteran's mere contention, standing and alone, that his claimed disability is related to his service or to a service-connected disability is enough to satisfy the 'indication of an association,' then that element of 38 U.S.C. § 5103A is meaningless. In Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), the Federal Circuit noted that a conclusory generalized statement is insufficient to trigger this element as it would eliminate the carefully drafted statutory standards and require the Secretary to provide examinations in virtually every disability case. In sum, the Veteran's allergic rhinitis manifested almost 15 years after service and the persuasive evidence is against finding it was incurred in, aggravated by, or otherwise the result of active service. Therefore, the claim for service connection for rhinitis is denied. REASONS FOR REMAND In remanding these issues, the Board makes no credibility determination, expressed or implied, at this juncture. Headaches/residual of TBI The Veteran maintains that his headaches are a result of head injuries in service. Specifically, 1992 and 1994 injuries. In January 2014, the Veteran underwent a VA examination. The examiner stated it was at least as likely as not that the Veteran's claimed condition incurred in or was caused by an in-service injury, referring to a 1992 incident. The examiner described the indicators of a TBI and reasoned the Veteran's reported "loopy" feeling was likely the feeling of being dazed but not disoriented. As drafted, the report suggests that the Veteran did not meet the criteria for an in-service TBI, but then concludes that the Veteran more likely than not had a mild TBI without residuals due to that 1992 head injury. These statements are at odds with each other. Regarding the 1994 incident, the examiner found no record of an injury or treatment, and concluded it was less likely than not that the Veteran had a head injury in 1994. In light of the evidence of a 1994 head injury, a new opinion is warranted. Additionally, the claims file contains the January 11, 1994, report of injury and referral to Jacksonville Naval hospital and the January 14, 1994, discharge report. As discussed above, the Veteran submitted progress notes from January 12th and 13th that were not previously part of the electronic claims file. On remand, the RO should verify that all of the service treatment records, to include the Jacksonville Naval hospital records, related to his 1994 hand injury are obtained. Tinnitus The Veteran stated that a physician has told him that his tinnitus could be related to antibiotic use, and he took antibiotics while in service following a 1994 hand fracture. The Veteran is competent to report what a physician told him. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The claims folder does not contain a medical opinion as to whether the Veteran's tinnitus is the result of antibiotic use in service or related to service. As such, the Board finds that a remand is necessary. Additionally, the Veteran asserted that his tinnitus is related to his head injuries. See March 2016 Correspondence. The Veteran underwent VA audiological examinations in January 2014 and September 2016. To date, no examiner has opined as to whether the Veteran's tinnitus is caused or aggravated by his head injuries in service. On remand, an opinion should be obtained, and the Veteran's contention should be addressed. Sleep apnea In an August 2021 statement, a servicemember who served with the Veteran reported that the Veteran had audible snoring with moments where it appeared that he stopped breathing altogether. He reported that it was possible that the Veteran was experiencing undiagnosed sleep apnea during service. During the hearing, the Veteran reported that his sleep problems might have begun during service. Where there is evidence of a current disability and an indication that the disability may be associated with service but insufficient medical evidence to decide the claim, a VA examination is warranted. McLendon. Given the evidence of a current disability and the statements of symptomology in service which possibly continued to the present, on remand a VA examination to determine the nature and etiology of the Veteran's sleep apnea is warranted. The Veteran has also asserted that his sleep apnea is related to his service-connected anxiety disorder. See June 2021 Hearing transcript. As such, an opinion as to whether the Veteran's sleep apnea is caused or aggravated by his service-connected anxiety disorder should be obtained. Right wrist nerve condition The Veteran contends that his right wrist nerve condition is related to his service-connected right finger fracture residuals and right wrist tendonitis. The Veteran was provided a VA examination in June 2016 wherein he was diagnosed with right carpal tunnel syndrome. The examiner found the Veteran's carpal tunnel syndrome was an age-related condition not caused by his service-connected finger fractures. In an addendum, the examiner indicated that the service-connected tendonitis could not be the cause of the right carpal tunnel syndrome. However, the examiner did not provide an opinion as to whether the Veteran's service-connected conditions aggravated his carpal tunnel syndrome. A medical opinion addressing secondary service connection must address causation and aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) Thus, a remand for an addendum opinion to address aggravation is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding January 1994 treatment records, to include Jacksonville Naval hospital treatment records. If the records do not exist or are not available, the Veteran should be notified, and the claims file annotated as such. 2. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether the Veteran manifests any residuals of a TBI, to include headaches. The examiner is asked to address the Veteran's 1992 and 1994 head injuries. If the Veteran manifests any residuals of a TBI, opine whether the Veteran has any current residuals of a TBI, including headaches, that had their origin in service or are related to the Veteran's active service. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. 3. Arrange for the appropriate health care provider to review the Veteran's claims file and provide an opinion as to: (i) whether the Veteran's tinnitus is related to his service, to include antibiotic use; and (ii) whether the Veteran's tinnitus is (A) caused by or (B) aggravated by his in-service head injuries. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. 4. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's sleep apnea. The Veteran's claims file must be made available to the examiner. The examiner should indicate whether: (i) the Veteran's diagnosed sleep apnea had causal origins in service or is otherwise related to the Veteran's active-duty service; and (ii) whether the Veteran's sleep apnea is (A) caused or (B) aggravated beyond its normal progression by his service-connected anxiety disorder. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. 5. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether the Veteran's right wrist nerve condition is (A) caused or (B) aggravated beyond its normal progression by his service-connected right finger fractures or right wrist tendonitis. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.