Citation Nr: 18132278
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-39 454
DATE:	September 6, 2018
ORDER
As new and material evidence has been received, the claim for entitlement to service connection for restrictive lung disease is reopened, and to this extent only, the appeal is granted.
REMANDED
Entitlement to service connection for restrictive lung disease (claimed as unilateral diaphragmatic paralysis) is remanded.
Entitlement to service connection for sarcoidosis, to include as due to in-service exposure to tear gas, is remanded.
FINDINGS OF FACT
1. The January 2009 rating decision that denied service connection for restrictive lung disease was not timely appealed and became final.  
2. Evidence received since the January 2009 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection for restrictive lung disease.
CONCLUSIONS OF LAW
1. The January 2009 rating decision is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).    
2. Evidence received since the January 2009 rating decision is both new and material and the claim for entitlement to service connection for restrictive lung disease is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from September 2007 to April 2008.  This matter is on appeal from a July 2012 rating decision.  
New and Material Evidence
Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of a Regional Office (RO) decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a).  
VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991).
New evidence is evidence not previously submitted to agency decisionmakers.  Material evidence is 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 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). 
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, consideration need not be limited 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.  See id. at 117-18.  Moreover, new and material evidence is not required as to each previously unproven element of a claim.  See id. at 120.
The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  Evans v. Brown, 9 Vet. App. 273 (1996).  For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Whether new and material evidence has been received to reopen the claim for entitlement to service connection for restrictive lung disease 
The last prior final denial for the claim for service connection for restrictive lung disease was a January 2009 rating decision.  It is final because the Veteran did not file a notice of disagreement within one year of the rating decision.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  Therefore, the Board looks to the evidence submitted since January 2009 for new and material evidence.  
When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered.  See Hodge, 155 F.3d at 1356.  In this regard, the Board notes that the RO denied the Veteran claim for restrictive lung disease because the condition was determined to be congenital and existed prior to military service.
New evidence received since January 2009 includes a February 2012 private treatment record in which the treating physician notes that the Veteran’s paralyzed right hemidiaphragm is “definitely not a congenital condition.”
The aforementioned evidence is new because it was not of record at the time of the January 2009 denial.  The new evidence shows that the Veteran’s condition may not be congenital and, therefore, may be eligible for VA compensation.  Consequently, the Board finds the newly received evidence to be material because it relates to an unestablished fact necessary to substantiate the Veteran’s claim.  38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117.  Accordingly, the Veteran’s claim for entitlement to service connection for restrictive lung disease is reopened.     
REASONS FOR REMAND
Unfortunately, the claims remaining on appeal must be remanded for further development.  Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration.
Entitlement to service connection for restrictive lung disease (claimed as unilateral diaphragmatic paralysis) and sarcoidosis, to include as due to in-service exposure to tear gas, are remanded.
The Veteran seeks service connection for restrictive lung disease, claimed as unilateral diaphragmatic paralysis, and sarcoidosis, which he contends were incurred during service.  He further contends that his sarcoidosis was caused by exposure to tear gas during basic training.  
The Veteran’s service treatment records (STRs) show that in September 2007 he was diagnosed with pneumonia after complaining of shortness of breath, fever, and coughing up blood.  He was admitted to the hospital due to low oxygenation and a chest x-ray showed that he had an elevated right hemidiaphragm.  Pulmonary function tests demonstrated a mild decrease in total lung capacity.  
In November 2007, an ultrasound of the Veteran’s right upper quadrant showed diminished excursion of the right diaphragm suggesting partial paralysis.  The examining physician suggested that the condition is genetic. 
In March 2008, the Veteran sought treatment for dyspnea on exertion.  The Veteran reported that he experienced intermittent right sided chest pain, shortness of breath with exertion, and syncopal episodes since childhood, but that his symptoms had worsened since joining the Army.  His diagnosis of congenital paresis of the right diaphragm was continued.  The Veteran was medically discharged in April 2008.  
Post-service private treatment records show that the Veteran was diagnosed with sarcoidosis in October 2011.    
In a February 2012 treatment record, the Veteran’s treating physician stated that his paralyzed right hemidiaphragm was “definitely not a congenital condition” due to the fact that a September 2006 normal x-ray of the chest shows that the Veteran did not have the condition prior to 2006.  
The Veteran underwent a VA examination in December 2011.  The examiner confirmed diagnoses of restrictive lung disease, specifically, phrenic paralysis of the right hemidiaphragm, and sarcoidosis.  The Veteran reported that he was an athlete in high school and had never had problems with breathing prior to joining the Army.  He stated that his breathing problems began after he went through a tear gas chamber in basic training and he reacted badly to the tear gas.  Upon examination, the examiner opined that it is less likely as not that sarcoidosis was caused by or a result of tear gas exposure, and that it is less likely as not that unilateral diaphragmatic paralysis was incurred in service or caused by the condition that was treated in service.  In his rationale, the examiner cited to medical literature generally discussing the etiology of paralysis of the diaphragm and sarcoidosis, however, he did not apply this medical knowledge to the specific facts of the Veteran’s case.  The examiner ultimately relied on the findings of the clinicians in the Veteran’s STRs that the condition existed prior to service in finding that the Veteran’s restrictive lung disease was not incurred or related to service.  No supporting rationale was given for his conclusion regarding the issue of sarcoidosis.     
VA obtained an addendum medical opinion in July 2012.  The examiner opined that is less likely as not that the Veteran’s restrictive lung disease was aggravated by his in-service complaints.  The examiner determined that the Veteran’s respiratory condition is not congenital, but that the condition diagnosed in service resolved by the time of separation.  The examiner opined that the Veteran’s paralysis of the right hemidiaphragm is not constant, and that it has been elevated at times due to pneumonias or atelectasis (collapsed lung), which ultimately resolved and left no chronic problems.  The Board finds the examiner’s opinion to be speculative and factually incorrect, as there is no medical evidence that the Veteran has been diagnosed with pneumonia at any time since September 2007, or has ever been diagnosed with collapsed lung.  Moreover, the Veteran has continued to suffer chronic respiratory problems since service.  
In light of the deficiencies discussed above, the Board finds both VA medical opinions of record to be inadequate.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  Once VA undertakes the effort to provide an examination or opinion when developing a service connection claim, it must provide one that is adequate for purposes of the determination being made.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Therefore, remand is required to afford the Veteran a new VA examination and medical opinion before the Board can render an informed decision on the claim.  Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).  
As a final matter, the Board notes that evidence contained in the Veteran’s claims file indicates that the Veteran may be in receipt of Social Security Administration (SSA) disability benefits.  However, the record does not show that any SSA records have been requested or associated with the claims file.  As the Veteran’s SSA records may contain medical evidence pertinent to the claims on appeal, on remand, these records should be obtained and associated with the claims file.                 
Accordingly, the matters are REMANDED for the following actions:
1. Contact the SSA and request the Veteran’s complete SSA records, if available, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records in SSA’s possession.  A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be associated with the claims file.  If no SSA records are available, the file should be annotated as such with explanation.
2. Then, schedule the Veteran for a VA examination with a VA physician (M.D.) of appropriate expertise to fully assess the nature and etiology of any currently-diagnosed lung condition, to include restrictive lung disease and right diaphragmatic paralysis, and sarcoidosis.  The examiner must review the Veteran’s entire claims file, to include a copy of this REMAND, and that review must be noted in the report.  A complete history of symptoms should be elicited from the Veteran.  
Thereafter, the examiner should provide an opinion with respect to the following:
(a) Is there clear and unmistakable evidence (a very high burden of proof) that a congenital lung condition existed prior to the Veteran’s entry into military service?  
(b) If a pre-existing lung condition is identified by medical evidence, is the condition a congenital defect or a congenital disease? 
To assist the examiner, for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a static condition not considered capable of improving or deteriorating.
(c) For any diagnosed lung condition that is a congenital defect, is it at least as likely as not (50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in additional disability?
(d) For any diagnosed lung condition that is a congenital disease, is it clear and unmistakable that the condition pre-existed the Veteran’s military service?
If so, is it clear and unmistakable that the pre-existing disease WAS/WAS NOT aggravated (i.e., permanently worsened) during the Veteran’s military service? 
(e) For any lung condition that is not a congenital defect or disease, is it at least as likely as not (50 percent or greater probability) that the condition was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein?
In providing the above opinions, the examiner must adequately consider and address the Veteran’s STRs showing treatment in service for pneumonia and diagnosis of elevated right hemidiaphragm, as well as the Veteran’s post-service private treatment records documenting his continued respiratory and pulmonary problems and treatment for sarcoidosis.  
With regard to sarcoidosis, the examiner should provide an opinion with respect to the following: 
(a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sarcoidosis was incurred in or caused by his active duty service, to include as due to his claimed in-service exposure to tear gas?  
The requested medical opinion must discuss whether a relationship exists between the Veteran’s current restrictive lung disease and sarcoidosis, and well as how either current-diagnosed condition is related to the Veteran’s treatment for elevated right hemidiaphragm during service, if applicable.    
The examiner should set forth a complete rationale for the conclusion(s) reached.  If an opinion cannot be reached without resorting to speculation, the examiner must explain why.

 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Melissa Barbee, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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