Citation Nr: 1334587 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-33 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for asthma. 2. Entitlement to service connection for asthma. ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Appellant was a member of the California Army National Guard (ARNG) from September 1965 to November 1968 and had a period of active duty for training (ACDUTRA) from August 1966 to December 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied reopening the claim of service connection for asthma. FINDINGS OF FACT 1. In a December 1972 rating decision, the RO denied service connection for asthma. The Appellant did not timely appeal the decision and it is now final. 2. The additional evidence presented since the December 1972 rating decision relates to an unestablished fact necessary to substantiate the claim. 3. The evidence indicates that the currently diagnosed asthma is related to military service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for asthma have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for service connection for asthma have been met. 38 U.S.C.A. 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claim Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Reopened Claim The Appellant seeks to reopen a previously denied claim of service connection for asthma. Rating actions from which an appeal is not timely perfected become final one year following notice of the adverse decision to the Appellant. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). New and material evidence is required to reopen a final decision. Evidence is considered new if it was not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). 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). When evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather it should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a December 1972 rating decision, the RO denied the Appellant's claim for service connection for asthma because the records did not show an incurrence of asthma during service and because a statement received from the Appellant's mother reported that he had asthma from the age of five. The evidence of record at the time of the December 1972 rating consisted of service treatment records, private medical records from Dr. B.E. Kitchen and Dr. Robert Quinn, and a statement from Mrs. [redacted], the Appellant's mother. Since the lack of evidence regarding an in-service incurrence was the basis for the denial of the claim in the December 1972 rating decision, any new evidence must relate to this unestablished fact or at least trigger the duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In January 2009, the Appellant submitted several reports regarding the chemical composition of CN and CS tear gas and their use during U.S. military basic training. The Appellant contends that his exposure to chemical agents while on active duty triggered his asthma. The Appellant's contention of an in-service incurrence based on exposure to chemical agents triggered the VA's duty to assist by providing a medical opinion and thus constituted new and material evidence. As new and material evidence has been received, the claim must be reopened. Reopening the claim is warranted. III. Principles of Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty while in active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any period of active service, including active duty for training (ACDUTRA) during which the individual concerned was disabled or died from an injury or disease incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 101(22); 38 C.F.R. § 3.6(a) and (c). Service connection may be granted for any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(23) and (24); 38 C.F.R. § 3.6(a) and (d). Generally, an individual who has only National Guard service (ACDUTRA or INACDUTRA with no active duty) is not a Veteran as legally defined. In the service connection context, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307 (2013), applicable to active duty, would not apply. 38 U.S.C.A. §§ 1111, 1112; 38 C.F.R. § 3.307. Thus, service connection on a presumptive basis is not available where the only service performed is ACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). Similarly, the presumption of aggravation does not apply, as such is triggered only for conditions related to active service. Smith v. Shinskei, 24 Vet. App. 40 at 45-46 (2010). IV. Facts and Analysis The Appellant contends that his exposure to tear gas during basic training triggered his asthma. An enlistment examination was not conducted for the Appellant's period of ACDUTRA; however, a September 1965 enlistment examination conducted upon the Appellant's entrance into the Army National Guard does not note a diagnosis of asthma. A December 1966 separation examination conducted following the Appellant's period of ACDUTRA also does not note a diagnosis of asthma. Additionally, the Appellant denied a history of asthma in contemporaneous reports of medical history completed in September 1965 and December 1966. Thus, there is no evidence of a diagnosis of asthma during the Appellant's ACDUTRA. In October 1968, the Appellant was diagnosed with asthma, exacerbated by exercise and allergens. It was noted that the Appellant's asthma was not controlled by oral medication and it was recommended that the Appellant be released from the National Guard. The Appellant was subsequently discharged from the National Guard in November 1968 due to a physical disqualification. In support of his contention, the Appellant submitted several Wikipedia articles regarding the use of tear gas during basic training exercises, as well as a statement from [redacted]. Mr. [redacted] reported that he underwent basic training during the same period, but at a different location, and was also exposed to tear gas. Mr. [redacted] further reported that chemical agent training, which included repetitive exposure to tear gas, was part of the curriculum for basic training during the 1960s. The Appellant's report is not contradicted by the record and he is competent to provide a historical report on what the curriculum of his basic training entailed. Layno v. Brown, 6 Vet. App. 465. Thus, the Appellant's exposure to tear gas in service is conceded. The Appellant also submitted a private opinion from Dr. Lisa Barville, a physician who has treated the Appellant for over five years. Dr. Barville opined that his asthma may have been exacerbated by his service. Dr. Barville did not specify what aspect of the Appellant's service may have exacerbated his asthma, but based her opinion on a review of the medical records and her discussions with the Appellant. Upon VA examination in March 2009, the Appellant reported experiencing asthma attacks one to two times a day which were immediately relieved by an Albuterol inhaler. The Appellant treats his asthma with Singulair, Advair, an Albuterol inhaler, and oral Prednisone. Following a review of the clam file, the VA examiner opined that the Appellant's asthma is at least as likely as not a result of being exposed to noxious fumes in training for chemical exposure because chemical dusts or vapors are known to cause or precipitate previously unknown asthma. There are two opinions of record addressing the etiology of the Appellant's claimed asthma. The private medical opinion indicates the Appellant's asthma may have been exacerbated by service whereas the VA opinion concluded that the Appellant's asthma was related to his exposure to noxious fumes in service. The evidence indicates that the Appellant was exposed to tear gas during ACDUTRA. He was diagnosed and treated for asthma shortly after completion of ACDUTRA. Although the two medical opinions differ on whether the Appellant's asthma was initially caused or simply aggravated by service, both medical opinions of record offer a positive opinion regarding the relationship of the Appellant's asthma to service. There is no medical evidence to the contrary. Accordingly, service connection for asthma is warranted. This finding also confers Veteran status on the Appellant. ORDER Service connection for asthma is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs