Citation Nr: 1802391 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-49 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hyperactive airway (also claimed as asbestosis). 2. Entitlement to service connection for hyperactive airway (also claimed as asbestosis). REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Navy from August 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Previously, a January 2010 rating decision denied the Veteran's claim of entitlement to service connection for asbestosis (claimed as lung disability). The Veteran did not appeal that rating decision to the Board. In February 2014, the Veteran requested to reopen his claim. The October 2014 rating decision reopened the claim, but denied the claim on the merits. Although the RO reopened the claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of previously denied claims. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In an unappealed rating decision, dated January 2010, service connection for asbestosis was denied. 2. The evidence received since the January 2010 rating decision, is new and material; in that, it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. There is probative evidence that the Veteran's hyperactive airway (also claimed as asbestosis) had its onset in or is otherwise related to service. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for asbestosis is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Service connection for hyperactive airway (also claimed as asbestosis) is established. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran's service connection claim for asbestosis was initially denied by a January 2010 rating decision based on a finding that there was no probative evidence of a current diagnosis of asbestosis or that the asbestosis either occurred in or was caused by service. The Veteran did not appeal this decision, or submit new and material evidence within one year of that decision; thus, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). The Veteran's current appeal stems from a February 2014 application, in which he requested to reopen his previously denied claim of service connection for asbestosis. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 14 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Furthermore, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Veterans Appeals (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance, and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Evidence received since the January 2010 rating decision includes a private treatment record dated January 2013 indicating that, given laboratory data and imaging, the Veteran has a diagnosis of asbestosis. The evidence is new in that it was not previously considered. It is also material insofar as it gives a diagnosis of asbestosis, which was absent for the January 2010 rating decision. The Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for asbestosis. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for asbestosis is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that he was exposed to asbestos when he was aboard Navy ships while in service. His military occupational specialty is listed as electrician's mate. Since service, the Veteran asserts that his employment has not exposed him to asbestos and he has not smoked cigarettes. In January 2013, the Veteran's primary pulmonary doctor, Dr. O., found that, given February 2014 imaging showing pleural densities and interstitial changes, the Veteran had a diagnosis of asbestosis. Dr. O. continued to list asbestosis as one of the Veteran's diagnoses going forward. A February 2016 CT scan shows interstitial scarring. In a follow-up statement in September 5, 2017, Dr. O. stated that the Veteran has both interstitium and pleural asbestosis. A CT of the Veteran's chest shows that he has interstitial lung fibrosis. Dr. O. concluded that this imaging is consistent with the diagnostic criteria for asbestosis as defined by the American Thoracic Society. Therefore, the Board finds that the Veteran has established that he has a current diagnosis of asbestosis; thus, the first prong of service connection, existence of a present disability, is satisfied. Shedden, supra. Due to the nature of the Veteran's work as an electrician's mate, which has a probability of exposure to asbestos, exposure is conceded. Thus, the second prong of service connection, whether there was an in-service event, is satisfied. Id. As to the third prong of service connection, a nexus between the current disability and the in-service injury or event, the Board has considered the record, including service treatment records, lay statements, and examinations. In September 2014, the Veteran underwent a VA pulmonary examination. The VA examiner reviewed the medical records, including imaging in February 2014 and September 2014. After a review, the examiner gave the opinion that the Veteran did not have asbestosis because the imaging in the file did not conform with the diagnostic criteria for asbestosis as defined by the American Thoracic Society, specifically that the Veteran's x-rays did not show pleural plaques. The Board gives this opinion little probative weight because more recent evidence submitted by the Veteran's treating pulmonologist clarifies the Veteran's imaging and diagnosis. In the September 2017 opinion by Dr. O., he states that the Veteran's asbestosis is more than likely caused by his service due to the well-known job environment in the Navy ships. The Board gives this opinion great probative weight because Dr. O. is a board certified pulmonologist and his records consistently indicate that the Veteran has asbestosis. Based on the foregoing, the Board finds that service connection is warranted for asbestosis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. Given that the Veteran's private pulmonologist had the most recent evidence of record, the Board gives the benefit of the doubt to the Veteran and the private medical evidence. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for asbestosis is granted. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs