Citation Nr: 18131255
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-24 570
DATE:	August 31, 2018
ORDER
New and material having been received, a claim for entitlement to service connection for an asthma disorder, to include as due to chemical or asbestos exposure and secondary to posttraumatic stress disorder (PTSD), is reopened.
REMANDED
Entitlement to service connection for an asthma disorder, to include as due to chemical or asbestos exposure and PTSD, is remanded.
Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to an asthma disorder, is remanded.
FINDING OF FACT
1. April 1997, September 2001, December 2002, May 2004, and January 2008 rating decisions either denied service connection for asthma, or found that new and material evidence had not been submitted to reopen such a claim.
2. A December 2008 rating decision denied entitlement to service connection for an asthma disorder, to include as due to chemical or asbestos exposure and PTSD. The Veteran did not appeal or submit new and material evidence within one year.
3. Evidence received since the December 2008 rating decision raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an asthma disorder, to include as due to chemical or asbestos exposure and PTSD.
CONCLUSION OF LAW
1. The December 2008 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R.     §§ 3.104, 20.302, 20.1103 (2018).
2. New and material evidence has been received to reopen the claim of entitlement to service connection for an asthma disorder, to include as due to chemical or asbestos exposure and secondary to PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1975 to October 1984, and from December 1984 to May 1985. He served in the United States Navy. A June 2018 Board hearing was held.
1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an asthma disorder, to include as due to chemical or asbestos exposure and PTSD
In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R.        §§ 3.104, 20.1100, 20.1103 (2018).  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 (2012).
Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).
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 (2018).  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.  Shade, 24 Vet. App. at 117-18.
Additionally, 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).  Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence.  38 C.F.R.   § 3.156(c)(1).  
To establish service connection, a 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 - the so-called nexus requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  
April 1997, September 2001, December 2002, May 2004, and January 2008 rating decisions either denied service connection for asthma, or found that new and material evidence had not been submitted to reopen such a claim.
In a December 2008 rating decision, the RO denied service connection for an asthma disorder, to include as due to chemical or asbestos exposure because it found no evidence that there was a chronic or permanent disability shown during military service, or that the Veteran was exposed to chemicals or asbestos.  The Veteran did not appeal that decision nor submit new and material evidence within one year.  The rating decision is thus final based on the evidence then of record.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
Evidence of record at the time of the December 2008 rating decision includes the following:  1) the Veteran’s lay statements; 2) the Veteran’s service treatment records (STRs); 3) VA treatment records; and 4) internet articles regarding Navy ships. In his lay statements, the Veteran reported that he experienced asthma attacks and that he believed his asthma was a direct result of exposure to something beyond his knowledge while he was enlisted in the U.S. Navy. The Veteran also wondered whether his condition was a direct result of posttraumatic stress syndrome. See Statement in Support of Claim, July 2003 and October 2003. The Veteran’s STRs indicated that he was diagnosed with asthma in service. See STRs from January 1984 and May 1984.
Evidence submitted after the December 2008 rating decision includes the following:  1) the June 2018 Board hearing testimony; 2) lay statements from the Veteran’s wife, brother, and sister; 3) the Veteran’s lay statements; 4) a January 2015 VA examination report; and 5) additional VA treatment records.  In lay statements, the Veteran’s family stated that that as a child, the Veteran did not have whistling or wheezing when he breathed, coughed severely, experienced shortness of breath, or chest lightness/heaviness; in fact, he was very athletic. At the June 2018 Board hearing, the Veteran testified that he began wheezing in 1981, that this occurred frequently, and that he did not have any symptoms like that prior to active duty. The Veteran reported that at Fort Sam, Houston, he shaved goats without the use of respirators and that he may have ingested goat hairs with enzymes which infected his lungs. The Veteran also reported that he continued to experience symptoms after service, including wheezing and labored breathing. VA treatment records from November 2012 to January 2015 show that the Veteran has continued to be treated for asthma and had been prescribed Albuterol, Budesonide, and Tiotropium Br Inh for breathing, and Montelukast for asthma.
The Board finds that new and material evidence has been presented.  The evidence, including the June 2018 Board hearing testimony, the lay statements from the Veteran’s wife, brother, and sister, and January 2015 VA examination report, is new because it was not previously submitted to VA.  The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of an in-service illness and evidence of continuous post-service asthmatic issues.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial.  See 38 C.F.R. § 3.156(a).  Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened.  Justus, 3 Vet. App. at 513.  Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  Accordingly, for all of the above reasons, the Veteran’s claim is reopened.   
REASONS FOR REMAND
Remand is required for new VA examinations. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement. Stefl, 21 Vet. App. at 120, 123-24. A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).
Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. This includes service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2016); Allen v. Brown, 7 Vet. App. 439 (1995).
1. Entitlement to service connection for an asthma disorder, to include as due to chemical or asbestos exposure and PTSD.
In this case, the Veteran has alleged that his first asthmatic symptoms manifested during active service. The Veteran also contends that it is possible that his asthma condition was a direct result of posttraumatic stress syndrome. See Statement in Support of Claim, July 2003 and October 2003.
A January 2015 VA examination was conducted. The diagnosis was asthma. The Veteran reported at the examination that he was initially diagnosed with asthma in 1982 and that his symptoms began after moving to San Antonio, Texas. The Veteran reported that he had difficulty breathing and shortness of breath. The examiner noted that the Veteran’s condition required the use of inhaled medications. The examiner concluded that the Veteran’s claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that there was no objective medical evidence in the Veteran’s STRs of the claim condition of asthma or of chronicity of care, and there was no objective medical evidence of asthma in the years proximal to military service.
The examination report is inadequate. The examiner’s reliance on a lack of documentation in the Veteran’s STRs for asthma is clearly erroneous. Several STRs cite to asthma and there is an in-service diagnosis of asthma.  See STRs from January 1984 and May 1984.  The examination report also did not consider the Veteran’s lay statements that he continued to experience asthmatic symptoms and episodes immediately after he was discharged from the military. The Veteran also reported that he continued to experience symptoms after service, including wheezing and labored breathing.  For all the foregoing reasons, a new examination is warranted.
2. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to an asthma disorder.
A January 2015 VA examination was conducted. The diagnosis was obstructive sleep apnea (OSA). At the examination, the Veteran reported that he had difficulty initiating and maintaining sleep, experienced headaches, and was told by his wife that she witnessed him snoring. The Veteran also reported that he required the use of a CPAP machine. The examiner acknowledged lay statements submitted by the Veteran’s wife, brother, and sister. The examiner concluded that the Veteran’s OSA was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that OSA usually begins with snoring and there were not multiple supporting documents of sleeping difficulties, including disrupted sleep, daytime drowsiness, and snoring, which occurred during and immediately after active duty. The examiner further stated that there was no supporting medical evidence in the Veteran’s STRs of sleep apnea, nor was there objective medical evidence of chronicity of care of sleep apnea in the years proximal to military service. 
The examination report failed to address relevant lay evidence.  The Veteran has alleged that his OSA symptoms manifested during active service. The Veteran testified at a June 2018 Board hearing that he believed there is a relationship between his sleep apnea and asthma. He testified that he first noticed being tired after he went to Iran in 1980. The Veteran further testified that in 1981 he had a roommate who woke him up one night and told him he had stopped breathing. The Veteran also stated that on one occasion, he woke up and his first wife told him he was gasping for air. The Veteran’s current wife submitted a March 2014 statement stating that the Veteran woke up at night unable to catch his breath, that he had headaches, and that he always feels tired like he was not getting rest, but that he used to stop breathing, snored loudly, and toss and turned all night.  Additionally, an opinion regarding secondary service connection is required. For all the foregoing reasons, a new examination is warranted.
The matters are REMANDED for the following action:
1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative.
2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.
3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to assist in determining the nature and etiology of an asthma disorder, to include as due to chemical or asbestos exposure and PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service.
(a.) First, the examiner must determine the presence of the Veteran’s asthma disorder. If asthma is not diagnosed, please address why.
(b.) Second, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the diagnosed asthma disorder had onset in, or is otherwise related to active service.

The examiner must address the following:  1) the Veteran’s STRs; 2) an April 1985 VA examination that found no asthma; 3) a June 1994 VA treatment record noting acute bronchitis; 4) the private treatment records noting a history of asthma; 5) the Veteran’s June 2018 Board hearing testimony, to include his statements regarding symptoms after service discharge; 6) the Veteran’s family lay statements; 7) the January 2015 VA examination report; and 8) the Veteran’s lay statements from July 2003 and October 2003 claiming asthma being as due to chemical or asbestos exposures and PTSD.
4. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to assist in determining the nature and etiology of OSA, to include as secondary to an asthma disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided.
(a.) The examiner must opine as to whether OSA was at least as likely as not (50 percent or more probability) had onset in, or is otherwise related to, the Veteran’s active service.  The examiner must address the lay statements of record regarding in-service symptoms.  
(b.) The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that OSA was caused by an asthma disorder.
(c.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that OSA was aggravated by an asthma disorder.
5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R.         §§ 3.158, 3.655 (2018).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

 
K. MILLIKAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	P. Nguyen, Associate Counsel

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