Citation Nr: 18123958
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-23 120
DATE:	August 7, 2018
ORDER
New and material evidence having been submitted, the claim of entitlement to service connection for chest infections is reopened; to this extent only, the appeal is granted. 
REMANDED
Entitlement to service connection for chest infections is remanded.
Entitlement to service connection for emphysema, to include as secondary to chest infections, is remanded.
Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to chest infections, is remanded.
FINDING OF FACT
1. Service connection for a chest condition was denied in a September 1980 rating decision on the basis that the condition was not shown by the evidence of record.
2. The Veteran did not file a notice of disagreement for the September 1980 rating decision, and that decision became final.
3. Additional evidence received since the last denial includes statements and testimony from the Veteran demonstrating persistent symptoms of chest infections.  
CONCLUSION OF LAW
New and material evidence has been received, and the Veteran’s claim for service connection for chest infections is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active service from June 1976 to June 1979.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
In May 2018, the Veteran presented sworn testimony during a video conference Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran’s claims file.
New and Material Evidence
A claim which has been finally denied may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c) (2012).  The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2017).  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).
Chest Infections
Service connection for a chest condition was initially denied in a September 1980 rating decision.  The Veteran’s separation examination showed that the Veteran indicated he experienced chest pains only on extreme exertion.  Furthermore, x-rays taken at separation were within normal limits.  He received a VA examination, which was entirely negative for a chest condition.  
The evidence received since the September 1980 rating decision includes testimony from the May 2018 hearing where the Veteran asserts that he had problems with his chest since service.  He testified that he had a build-up of mucous and was prescribed Valium for a chest infection.  He also indicated that he would start hacking and coughing if he ran during service.  The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of a chest condition; therefore, raising a reasonable possibility of substantiating the claim.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  New and material evidence having been submitted, reopening of the previously denied claim is appropriate.
However, adjudication of the Veteran’s claim does not end with the determination that new and material evidence has been received.  For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim.
REASONS FOR REMAND
Chest Infections, COPD, Emphysema
The Veteran received a VA examination in March 2014, and the examiner was asked to opine whether it was as least as likely as not that the Veteran’s lung infections, COPD, and emphysema were incurred while on active duty.  The examiner found that the conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  She indicated that the Veteran’s service treatment records did not contain treatment for respiratory illnesses, and the separation examination was silent for diagnoses of emphysema or respiratory infections.  The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination).  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  
Furthermore, regarding the Veteran’s claim for entitlement to service connection for COPD as secondary to chest infections and entitlement to service connection for emphysema as secondary to chest infections, the examiner’s opinions were inadequate, as she provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013).  Therefore, this claim must be remanded for a new examination.
The matters are REMANDED for the following action:
Schedule the Veteran for a VA examination to determine the nature and etiology of his respiratory conditions, to include chest infections, COPD, and emphysema.  The examiner should review the claims folder and note such review in the examination report.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed respiratory conditions had their onset or are otherwise related to the Veteran’s military service.
The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s COPD and emphysema were caused or aggravated by any chest infections.  Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.
The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Daniels, Associate Counsel 

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