Citation Nr: 1801941 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-16 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for bronchial asthma. 4. Entitlement to service connection for a lung disorder, other than bronchial asthma. REPRESENTATION Appellant represented by: Timothy M. White, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) in the Army National Guard from February 1974 to June 1974, and active duty service in the Army from October 1977 to March 1978. This case comes before the Board of Veterans' Appeals (the Board) from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran had a hearing before a Veterans Law Judge (VLJ) in April 2012. A transcript of that proceeding has been associated with the claims file. In October 2016 the Veteran was informed that the VLJ who presided at his hearing was no long employed at the Board. The letter noted that the Veteran could be provided a new hearing if he so wished. Later that month the Veteran's attorney informed the Board that the Veteran did not wish to have another hearing. Service connection for bronchial asthma and service connection for a lung disorder other than bronchial asthma were previously denied by an unappealed June 2004 rating decision. The Board remanded the issues of whether new and material evidence had been submitted to reopen claims for service connection for bronchial asthma and service connection for a lung disorder other than bronchial asthma in April 2014 in order to obtain additional service treatment records. The Board observes that additional service treatment records relevant to the Veteran's lung claims were added to the record in December 2015. These relevant service department records were in existence but not of record at the time of the June 2004 VA decision; therefore, regulation requires reconsideration, not reopening, of the previously denied claims for service connection or bronchial asthma and service connection for a lung disorder other than bronchial asthma. See 38 C.F.R. § 3.156(c). Accordingly, the issues of service connection for bronchial asthma and service connection for a lung disorder other than bronchial asthma are phrased above to reflect that the merits of the claims are considered herein. Following the above action, in a December 2016 decision, the Board denied both issues. The Board also remanded the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. In July 2017, the Court of Appeals for Veterans Claims (Court) signed a joint motion for partial remand (JMPR) of the claims of entitlement to service connection for bronchial asthma and a lung disorder other than bronchial asthma. The Court vacated the Board's denial of both issues, citing inadequate reasons or bases for the Board's findings. The issues of entitlement to service connection for a back disability, bronchial asthma, and a lung disorder other than bronchial asthma are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Evidence received since the December 1978 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. CONCLUSION OF LAW New and material evidence has been received since the RO's December 1978 decision which denied service connection for a back disability; the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, 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 decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, given the previous unappealed denial of the low back claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The evidence considered by the December 1978 rating decision that denied entitlement to service connection for a low back disability included the Veteran's service treatment records and National Guard records, as well as a November 1978 VA examination. Service connection was denied based on insufficient evidence of a nexus between the Veteran's back disability and service. Evidence received since December 1978 includes VA treatment notes, private medical records, multiple statements from the Veteran, a March 2011 VA examination, and the transcript from the May 2012 hearing. Pertinently, the record contains a private medical opinion from Dr. J.A.R dated in May 2003, which states that the need for the Veteran's July 2001 lumbar spine surgery for disabling back pain and limited range of motion was caused while the Veteran was in the military. In fact, the doctor said that there was "no question in [his] mind" that the Veteran's current back disability began while he was on active duty and has worsened to the point that he required surgeries in 1986 and 2001. The Board finds that the evidence received since December 1978 with respect to the Veteran's claimed back disability is new and material. The claim was originally denied, in part, on the basis that the Veteran's spine disability was not incurred in or aggravated by his time in service. The additional evidence, and in particular the private physician's May 2003 statement, addresses the possibility of a medical nexus between the Veteran's current spine disability and service. The Board therefore finds that the submitted evidence is new and material, and that it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The claim is therefore reopened. ORDER The claim of entitlement to service connection for a back disability is reopened pursuant to submission of new and material evidence. REMAND Unfortunately, a remand is required for the Veteran's claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. Back Disability With respect to the Veteran's back disability, the Veteran underwent a VA examination in March 2011, which contained an opinion that it is less likely than not that the Veteran's low back disability was incurred in or aggravated by service. Rather, the examiner found that the Veteran's back problems are at least as likely as not a result of a pre-service compression fracture to T8, a November 2000 fall, or the several years of competitive softball the Veteran reportedly played after leaving service. Review of the Veteran's claims file shows a private medical opinion from Dr. J.A.R dated in May 2003 but not received by VA until 2016, which posits that it is without question that the Veteran's current back disability was caused by his activities during military service. Furthermore, the record of additional medical evidence since the last final denial of this claim in 1978 is extensive. Indeed, the last VA examination the Veteran was afforded dates from over six years ago. In addition, although the March 2011 VA examiner attributed the Veteran's current back disability at least in part to a pre-existing T8 fracture that he allegedly incurred prior to service, there is currently no clear and unmistakable evidence both that any such injury occurred prior to service and that any chronic disability resulting from that injury was not worsened by the Veteran's time in service. In light of the above conflicting evidence as well as the newly associated and material evidence, remand is warranted to provide the Veteran a new, adequate VA examination for his back disability and to reconcile the conflicting evidence of record. Respiratory Disorders The Board denied the Veteran's claims of entitlement to service connection for bronchial asthma and other lung disorders in a December 2016 decision. In a July 2017 JMPR, the Court remanded these claims to the Board for further development, citing inadequate reasons and bases for the Board's decision. In its December 2016 decision, the Board found by clear and unmistakable evidence that the Veteran developed bronchial asthma prior to service, that the condition was not permanently aggravated by service, that he incurred trauma to his left lung prior to service, that the lung injury was not permanently aggravated by service, and that while he has COPD, it was first noted over 30 years after service, and thus, is not related to service. However, also of record were statements from the Veteran as well as buddy statements reflecting that prior to his enlistment, the Veteran was essentially in good physical condition and without any observable respiratory disability, while after his separation, he started experiencing asthma attacks. Furthermore, the record contains a private medical opinion from Dr. D.L.K in June 2003, stating that it is at least as likely as not that the Veteran's asthma was aggravated during his military service. The Board notes that as discussed in the JMPR, the March 2011 VA examiner failed to adequately explain why the Veteran's and his buddies' statements were given little probative value in the examiner's determination that the Veteran's asthma pre-existed service and was not aggravated thereby. The Board notes, further, that although the March 2011 VA examiner indicated that the Veteran failed to disclose his asthma at his entrance examination, the Veteran has testified that he did in fact report it, and the examiner does not indicate why he discounted the Veteran's statements. Additionally, regarding the claim for a lung disability other than asthma, the parties to the JMPR found that it was unclear whether the Veteran has a diagnosis of COPD and, if so, whether the disability is related to service. Thus, in order to clarify the conflicting evidence and diagnoses of record, and to provide the Veteran with a more current and thorough examination, this matter is remanded for further development. Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA and private medical records should be obtained and associated with the claims file. 2. Back Disability-The AOJ must schedule the Veteran for examination by a suitably qualified VA examiner for an examination and clarifying medical opinion regarding the Veteran's claimed back disability. The examiner is requested to conduct physical examination of the Veteran and review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, the 2011 VA examination, and the Veteran's assertions. In addition, the examiner is requested to specifically review the private medical opinion from Dr. J.A.R dated in May 2003. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner must address whether any back disability clearly and unmistakably pre-existed the Veteran's period of active duty service. If so, he or she must state whether there was an increase in the severity of the pre-existing back disability during service that was clearly and unmistakably due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that a back disability did not clearly and unmistakably pre-exist the Veteran's service, he or she must state whether it is at least as likely as not that the Veteran's back disability manifested in or is otherwise related to his military service, including any symptomatology therein. The examiner must specifically discuss the above-identified evidence, in particular the May 2003 private opinion, in the context of any negative opinion. 3. Asthma and Lung Disorders-The AOJ should refer the Veteran's claims folder to a suitably qualified VA examiner for a clarifying medical opinion regarding the Veteran's claimed lung disorders, including asthma, and respiratory ailments other than asthma. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner must review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, the 2011 VA examination, and the assertions of the Veteran and his buddies. In addition, the examiner is requested to specifically review and discuss the private medical opinion dated in June 2003 from Dr. D.L.K. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After a review of the record on appeal, the examiner must clarify what respiratory disorder(s) the Veteran currently experiences, including asthma, COPD, and any other respiratory disorder found to be present. If asthma is diagnosed, the examiner must address whether asthma clearly and unmistakably pre-existed the Veteran's period of active duty service. If so, he or she must state whether there was an increase in the severity of the pre-existing asthma during service that was clearly and unmistakably due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that asthma did not clearly and unmistakably pre-exist the Veteran's service, he or she must state whether it is at least as likely as not that the Veteran has asthma that manifested in or is otherwise related to his military service, including any symptomatology therein. The examiner must also opine as to whether it is at least as likely as not that any other diagnosed respiratory disorder, to include COPD, manifested in service or is otherwise etiologically related to service. In rendering these opinions, the examiner must specifically consider the private medical opinions of record, and the assertions of the Veteran and his buddies. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs