Citation Nr: 0710454 Decision Date: 04/11/07 Archive Date: 04/25/07 DOCKET NO. 04-17 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for sinusitis. 2. Whether new and material evidence has been received to reopen a claim of service connection for nasal polyps. 3. Entitlement to service connection for asthma. WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from July 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March, July and August 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, that denied the veteran's application to reopen a claim of service connection for sinusitis and nasal polyps as well as for service connection for asthma. In the rating decision on appeal, the RO determined that new and material evidence had not been received and denied the veteran's sinusitis and nasal polyps claim on that basis. During the course of this appeal, however, the RO adjudicated the claim on the merits, implicitly reopening the claim. The Board, however, must initially determine whether the veteran has presented new and material evidence sufficient to reopen his claims of service connection for sinusitis and nasal polyps because doing so goes to the Board's jurisdiction to reach the underlying claim and it adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As such, the Board has identified the issue as stated on the title page. In October 2006, the veteran and his spouse testified at a hearing held at the local VA office before the undersigned Veterans Law Judge. At the proceeding, he submitted additional evidence and waived initial RO consideration. As such, the Board will consider this evidence in the adjudication of this appeal. FINDINGS OF FACT 1. In a March 1981 rating action, the RO denied the veteran's application to reopen claims of service connection for sinusitis and nasal polyps; the veteran was provided notice of the decision and of his appellate rights, did not appeal this determination, and the decision became final. 2. The evidence received since the March 1981 rating decision is not duplicative or cumulative of evidence previously of record, and raises a reasonable possibility of substantiating the sinusitis and nasal polyps claims. 3. The medical evidence shows that the veteran's sinusitis and nasal polyps had its onset during service. 4. The medical evidence shows that the veteran's asthma had its onset during service. CONCLUSIONS OF LAW 1. The RO's March 1981 decision denying the veteran's application to reopen claims of service connection for sinusitis and nasal polyps is final. 38 U.S.C.A. § 7105 (West 1991) (formerly 38 U.S.C.A. § 4005 (1976)); 38 C.F.R. §§ 3.160(d), 19.118, 19.153 (1981). 2. Evidence received since the March 1981 rating decision is new and material; the claims of service connection for sinusitis and nasal polyps is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a), (c) (2006). 3. The veteran's sinusitis and nasal polyps were incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). 4. The veteran's asthma was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the veteran's sinusitis and nasal polyps and grants service connection for those disabilities, as well as for asthma. This represents complete grants of the benefit sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, a discussion of VA's duties to notify and assist is not required. Claims to reopen In unappealed April 1953 rating decision, the RO denied service connection for sinusitis and nasal polyps, and in a July 1976 decision, the Board denied the veteran's application to reopen a claim of service connection for these disabilities on the basis that the there was no evidence of complaint or treatment of either condition during service. In an unappealed March 1981 rating decision, the RO denied his application to reopen claims of service connection for sinusitis and nasal polyps, again on the lack of in-service medical evidence showing treatment for these disabilities. The evidence of record at the time of the March 1981 rating decision consisted of the available service medical records; private and VA medical evidence, dated from 1951 to 1975; numerous lay statements in which individuals who were acquainted with the veteran both prior to and since service attested that he had no health problems prior to his military service and that he suffered from chronic sinus problems, nasal congestion and nosebleeds since that time; and statements and written argument submitted by or on behalf of the veteran. The Board notes that the medical evidence included an impression offered by the veteran's treating allergist, Dr. Bruce H. Feldman, who in a March 1975 report, opined that the veteran's recurrent sinusitis, recurrent nasal polyposis and multiple nosebleeds began in his late teens or early twenties; the veteran was 19 years of age when he entered service. In the July 1976 decision, the Board, apparently relying on the medical judgment provided by the medical member of the panel deciding the appeal, acknowledged Dr. Feldman's assessment and the numerous lay statements indicating that the writers observed the veteran having these symptoms during and since service, but determined that absent medical records showing treatment for the disabilities during service, the conditions were of post-service origin. See Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995). Because the veteran did not submit a Notice of Disagreement (NOD) to the March 1981 rating decision, it became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 1991) (formerly 38 U.S.C.A. § 4005 (1976)); 38 C.F.R. §§ 3.160(d), 19.118, 19.153 (1981). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence associated with the claims folder since the RO's March 1981 rating decision consists of private and VA medical records showing that the veteran has been diagnosed as having sinusitis and nasal polyps. The medical evidence includes opinions offered by Dr. Feldman and a VA physician, who in June 2003 and November 2004 reports, respectively, opined that the veteran's sinusitis and nasal polyps had its onset during service. The newly submitted medical evidence also includes an August 1951 VA hospitalization report that shows that the veteran reported a seven-year history of having chronic nasal blockage. See Smith v. West, 12 Vet. App. 312, 315 (1999). In this regard, the Board observes that, previously, the record included only single-page August 1951 and March 1953 VA "Records of Hospitalization." The August 1951 form reflects that the veteran was diagnosed as having "nasal polyp, right," and chronic follicular tonsillitis, and on August 10, 1951, had a right polypectomy. The March 1953 record indicates that the veteran was diagnosed as having sinusitis and nasal polyps and had surgery to treat the conditions. In support of his application to reopen, the veteran and his spouse testified at a December 2003 RO hearing, and before the undersigned Veterans Law Judge at a hearing conduced in October 2006. During these proceedings, the veteran reported that he received in-service care while aboard ship for breathing problems, sinusitis and nasal polyps, and his spouse testified that she observed him having these problems since his discharge. Finally, the new evidence includes additional lay statements in which individuals attest that they observed that the veteran had sinusitis and nasal problems during and shortly after service. In light of the basis for the RO's March 1981 determinations, this evidence raises a reasonable possibility of substantiating his claims. Accordingly, this evidence is "new and material" under the provisions of 38 C.F.R. § 3.156(a), and the claims are reopened. Service connection for sinusitis, nasal polyps and asthma The veteran asserts that service connection is warranted for sinusitis, nasal polyps and asthma on the basis that these conditions had its onset during his period of active duty. In numerous statements and in December 2003 and October 2006 testimony, the veteran reports that he had no such problems before service and had had these conditions since that time. The veteran also cites voluminous lay statements offered since the 1970s prepared by individuals who knew him prior to, during, and since service, in which the individuals attest that he had no such problems before entering the military and had chronic sinus problems, nasal congestion, nosebleeds and various respiratory symptoms since his discharge. The veteran also emphasizes the "seven-year history" noted in the August 1951 VA hospitalization report and the medical opinions offered by Dr. Feldman in June 2003, and, in November 2004, by a VA physician. Further, he maintains that his condition was previously denied not because of an absence of treatment, but because service and post-service VA records are not available, e.g., records of his care by Dr. K. E. Warren, who treated him from 1946 to 1950 but whose records were destroyed by an office fire in Bernalillo, New Mexico. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that 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). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the service medical records associated with the claims folder do not reflect treatment for sinusitis, nasal polyps or asthma. In voluminous lay statements, however, numerous individuals have, consistent with the veteran's statements and testimony, attested that he had no respiratory problems prior to service and that they observed him having sinus and breathing problems, nasal congestion and nosebleeds during and since his period of active duty. In this regard, the Board notes that in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit held that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. at 1336. Instead, as a finder of fact, the Board must determine whether the lay testimony is credible, and in doing so may consider the absence of contemporaneous evidence. In addition, in Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), the Federal Circuit stated although evidence of a prolonged period without medical complaint can be considered along with other factors concerning the veteran's health and medical treatment during and after military service as evidence as to whether a condition was related to service, the trier of fact must consider the availability of medical records in making such a determination. Id. at 1333. As noted above, here pertinent medical records are not available. In adjudicating these claims, the Board must assess the competence of the veteran, his spouse and the various individuals who attested to the veteran's health prior to, during and service since, e.g., observing breathing problems, nasal congestion, nosebleeds, etc, to report observing these problems. The Board must also evaluate their credibility in doing so. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432-33 (2006). The Washington Court held that the veteran was competent to testify to factual matters of which he had first-hand knowledge and, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), noted that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds the veteran, his spouse and the veteran's numerous friends and family members who have prepared statements attesting to their observations of the veteran's respiratory and nasal problems, including his nosebleeds, are competent to do so. Layno; 38 C.F.R. § 3.159(a)(2). Further, the Board finds the veteran and the drafters of the lay statements to be credible, both concerning the reporting the veteran's in-service symptoms and of his chronic symptomatology since that time. Indeed, a comparison of the statements, prepared over the course of several decades, shows that they are not only consistent with each other, but with the history reported by the veteran when seeking VA treatment in August 1951, as well as when seeking care from both private and VA examiners in the 1970s, as well as in recent years. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996) (When determining whether lay evidence is satisfactory, the Board may consider internal consistency, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and, if a hearing has been held, the demeanor of the witness). Here, the record shows that, at every opportunity during this extended period, the veteran provided an extremely consistent account of his in-service symptoms and the chronicity of his respiratory and nasal problems. Further, in a June 2003 report, Dr. Feldman, a specialist in the treatment of allergic diseases, asthma and clinical research, noted that he had treated the veteran since June 1973 for extensive chronic pansinusitis and moderately severe perennial asthma. Dr. Feldman emphasized his assessment that the veteran's chronic pansinusitis, recurrent nasal polyposis and perennial asthma had their onset during service. In a November 2004 statement, a VA physician stated that the veteran's nasal polyposis and allergic rhinitis contributed to his bronchial asthma. In light of the absence of any contradictory lay or medical evidence, and resolving all reasonable doubt in the veteran's favor, the Board finds that service connection is warranted for sinusitis, nasal polyps and asthma. In reaching these determinations, the Board acknowledges relying on impressions offered by post-service examiners, who based their assessments on a history provided by the veteran. As noted above, however, the Board finds that the veteran's reported history is credible. In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the United States Court of Appeals for Veterans Claims (Court), citing its earlier decisions in Swann v. Brown, 5 Vet. App. 229 (1993) and Reonal v. Brown, 5 Vet. App. 458 (1993), reaffirmed the proposition that, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or that are contradicted by other facts of record. Id. at 179. In Kowalski, however, the Court declared that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history provided by the veteran, and instead must evaluate the credibility and weight of the history upon which the opinion is predicated. Id. Recently, in Coburn v. Nicholson, the Court, citing Kowalski, as well as Swann and Reonal, emphasized that the Board may not disregard a medical opinion solely on the rationale that the medical opinion is based on a history provided by the veteran. Id. at 432-33. Here, since the Board finds that the facts reported by the veteran are accurate, service connection is warranted. ORDER New and material evidence to reopen claims of entitlement to service connection for sinusitis and nasal polyps has been presented; and service connection for sinusitis and nasal polyps is granted. Service connection for asthma is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs