Citation Nr: 0002986 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 97-17 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic sinusitis with associated central nervous system infection. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from March 1974 to December 1976. In a rating decision of January 1992, the Regional Office (RO) denied entitlement to service connection for chronic sinusitis. The veteran voiced no disagreement with that decision, which has now become final. Since the time of the January 1992 rating decision denying entitlement to service connection for chronic sinusitis, the veteran has submitted additional evidence in an attempt to reopen his claim. The RO found that such evidence was neither new nor material, and the current appeal ensued. FINDINGS OF FACT 1. In an unappealed rating decision of January 1992, the RO denied entitlement to service connection for chronic sinusitis. 2. Evidence submitted since the final unappealed January 1992 rating decision bears directly or substantially upon the issue at hand, is not essentially duplicative or cumulative, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. In correspondence of May 1997, the veteran's private physician wrote that the veteran had been his patient since the mid 1970's, and that his (the veteran's) main complaint was of sinus problems which had been "chronic and apparently started in the military." 4. The veteran's claim of entitlement to service connection for chronic sinusitis is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. Evidence received since the final unappealed January 1992 rating decision denying entitlement to service connection for chronic sinusitis is new and material, and the veteran's claim for that benefit has been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1998). 2. The veteran's claim for service connection for chronic sinusitis with associated central nervous system infection is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998). However, once entitlement to service connection for a given disorder has been denied by a decision of the RO, that determination, absent disagreement by the veteran within a period of one year, is final. 38 U.S.C.A. § 7105 (West 1991 & Supp. 1998); 38 C.F.R. § 3.104(a) (1998). Where a claim for entitlement to service connection has been previously denied, and that decision becomes 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.A. § 5108 (West 1991 & Supp. 1998); 38 C.F.R. § 3.156(a) (1998). When an appellant seeks to reopen a previously denied claim, a three step analysis must be performed. Winters v. West, 12 Vet. App. 203 (1999) (en banc); Elkins v. West, 12 Vet. App. 209 (1999) (en banc). First, it must be determined whether new and material evidence has been presented pursuant to the provisions of 38 C.F.R. § 3.156(a) (1998). Second, if new and material evidence has been presented, the case must be reopened, and, immediately upon reopening, the Secretary must determine whether, based upon all the evidence, and presuming its credibility, the claim as reopened is well grounded pursuant to the provisions of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998). Third, if the claim is well grounded, the Secretary may evaluate its merits after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1998) has been fulfilled. Evidence is considered to be "new" if it was not previously submitted to agency decision makers, and is neither cumulative nor redundant. Evidence is "material" if it bears directly and substantially upon the specific matter under consideration and, by itself, or in connection with evidence previously considered, is so significant that it must be considered in order to fairly decide the merits of the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156 (1998). In addition, new evidence may be found to be material if it provides "a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board of Veterans' Appeals (Board) to alter its rating decision." Elkins v. West, 12 Vet. App. 209 (1999). In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, at the time of the January 1992 rating decision denying entitlement to service connection for chronic sinusitis, there were on file various Department of Veterans Affairs (VA) and private medical records, as well as a statement from the veteran's private physician. Pertinent service medical records showed only an episode of sinusitis in 1974, which, following treatment, resulted in neither complications nor sequelae. The aforementioned statement of the veteran's private physician, dated in November 1991, was to the effect that the veteran suffered from sinusitis, allergies, and headaches, "which apparently began in the military approximately around 1977." However, as previously noted, the veteran was discharged from service in December of 1976. Based on the aforementioned, the RO concluded that the veteran's sinusitis was neither incurred in nor aggravated by his period of active military service. Since the time of the January 1992 rating decision denying entitlement to service connection for chronic sinusitis, the veteran has submitted additional evidence in an attempt to reopen his claim. Included in such evidence is a May 1997 statement from the veteran's private physician, the same private physician who submitted correspondence in November 1991. In his May 1997 statement, that physician commented that the veteran had been his patient "since the mid 1970's," and that his "main complaint (was) of sinus problems (which had) been chronic and apparently started in the military." According to the veteran's physician, the veteran suffered the "onset of severe sinus infections in April 1974, which progressed to either meningitis or encephalitis, resulting in coma." As is readily apparent, the May 1997 statement of the veteran's private physician did not exist in January 1992, and therefore is clearly "new." Moreover, that statement, at a minimum, provides "a more complete picture" of the circumstances surrounding the origin of the veteran's claimed sinusitis, and is therefore "material." See Elkins v. West, 12 Vet. App. 209 (1999). Accordingly, the veteran's claim for service connection for chronic sinusitis is reopened. Having determined that new and material evidence has been submitted, the Board must next determine whether the veteran's reopened claim is well grounded. In that regard, a well grounded claim is a plausible claim, meaning a claim which appears to be meritorious. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). In the present case, as recently as August 1996, there were present two (2) masses in the veteran's right maxillary sinus, felt most likely to represent either mucus retention cysts or polyps. Moreover, according to the veteran's private physician, the veteran has been his patient since the mid 1970's for "sinus problems" which had been "chronic and apparently started in the military." Such statement, apparently rendered without benefit of the veteran's claims folder, is nonetheless suggestive of some relationship between the veteran's current sinus pathology and his active military service. Under such circumstances, the veteran's claim for service connection for chronic sinusitis with associated central nervous system infection is well grounded. ORDER The veteran has submitted a well grounded claim for service connection for chronic sinusitis with associated central nervous system infection. REMAND As noted above, the Board has concluded that new and material evidence has been submitted sufficient to reopen the veteran's previously denied claim, and that the veteran's current claim for service connection for chronic sinusitis with associated central nervous system infection is well grounded. Nonetheless, there exists some question as to the exact nature and etiology of the veteran's current sinus pathology. This is particularly the case given the lack of treatment records for 1974, the date of the apparent "onset" of the veteran's sinus infections. Moreover, as previously noted, the aforementioned private medical opinion was apparently rendered without benefit of the veteran's claims folder. Under such circumstances, the Board is of the opinion that further development is appropriate prior to a final adjudication of the veteran's claim for service connection for chronic sinusitis. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should make all reasonable efforts to obtain records of the veteran's claimed hospitalization for sinusitis and a central nervous infection during basic training, apparently from March to June 1974, at Willford Hall Medical Center, Lackland Air Force Base, Texas. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to May 1997, the date of the most recent treatment of record, should be obtained and incorporated in the claims folder. The veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. 3. The veteran should then be afforded an additional VA ear, nose, and throat examination, to include all appropriate studies, in order to more accurately determine the exact nature and etiology of his claimed sinusitis. This examination should be conducted by a physician who has not heretofore seen or examined the veteran. All pertinent symptomatology and findings should be reported in detail. Following completion of the examination, the examining otolaryngologist should specifically comment as to whether the veteran currently suffers from chronic sinusitis (with associated central nervous system infection) and, if so, whether such pathology as likely as not had its origin during the veteran's period of active military service. All information and opinions, when obtained, should be made a part of the veteran's claims folder. The claims file and a separate copy of this REMAND must be made available to and reviewed by the examiner prior to conduction and completion of the examination. Any opinions expressed must be accompanied by a complete rationale. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinion to ensure that they are responsive to and in complete compliance with the directives of this REMAND, and if they are not, the RO should take corrective action. 5. After undertaking any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of service connection for chronic sinusitis with associated central nervous system infection. Should the benefit requested on appeal not be granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. In this REMAND of the claim for further development, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is so notified by the RO. WAYNE M. BRAEUER Member, Board of Veterans' Appeals