Citation Nr: 1803839 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-11 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been presented to reopen a service connection claim for chronic obstructive pulmonary disease (COPD) and bronchial asthma with obstruction. 2. Whether new and material evidence has been presented to reopen a service connection claim for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder. 3. Whether new and material evidence has been presented to reopen a service connection claim for osteoporosis/arthritis. 4. Whether new and material evidence has been presented to reopen a service connection claim for chronic esophagitis and small hiatal hernia with gastroesophageal reflux disease (GERD). 5. Entitlement to service connection for COPD and bronchial asthma with obstruction. 6. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. He also had service in active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) status with the Puerto Rico Army National Guard from May 1976 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. A February 2010 Board decision that denied service connection service connection for COPD and bronchial asthma with obstruction, service connection for an acquired psychiatric disorder, service connection for osteoporosis/arthritis, and service connection for chronic esophagitis and small hiatal hernia with GERD was not appealed, nor was reconsideration requested. 2. Some of the evidence received since the February 2010 Board decision is new and relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for COPD and bronchial asthma with obstruction and service connection for an acquired psychiatric disorder. 3. The evidence added to the record since the February 2010 Board decision, when considered with previous evidence, does not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for osteoporosis/arthritis and service connection for chronic esophagitis and small hiatal hernia with GERD. 4. The Veteran's COPD and bronchial asthma with obstruction had its onset during active service. 5. The Veteran's acquired psychiatric disorder, to include depressive disorder and anxiety disorder, is related to his COPD and bronchial asthma with obstruction. CONCLUSIONS OF LAW 1. The February 2010 Board decision that denied service connection for COPD and bronchial asthma with obstruction, service connection for an acquired psychiatric disorder, service connection for osteoporosis/arthritis, and service connection for chronic esophagitis and small hiatal hernia is final. 38 U.S.C. §§ 7103, 7104, 7266 (2012); 38 C.F.R. §§ 3.156(b), 20.1100 (2017). 2. New and material evidence has been submitted, and the claims of entitlement to service connection for COPD and bronchial asthma with obstruction and entitlement to service connection for an acquired psychiatric disorder are reopened. 38 U.S.C. § 5108, 7104(b) (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence has not been submitted, and the claims of entitlement to service connection for osteoporosis/arthritis and entitlement to service connection for chronic esophagitis and small hiatal hernia with GERD are not reopened. 38 U.S.C. § 5108, 7104(b) (2012); 38 C.F.R. § 3.156(a) (2017). 4. The criteria for service connection for COPD and bronchial asthma with obstruction have been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.304 (2017). 5. The criteria for service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran's claims seeking entitlement to service connection for COPD and bronchial asthma with obstruction, entitlement to service connection for an acquired psychiatric disorder, entitlement to service connection for osteoporosis/arthritis, and entitlement to service connection for chronic esophagitis and small hiatal hernia with GERD were previously denied in a February 2010 Board decision. The February 2010 Board determinations were final when rendered. See 38 U.S.C. §§ 7104, 7266 (2012); 38 C.F.R. §§ 3.156(b), 20.1100 (2017). Furthermore, no pertinent exception to finality applies. There is no indication that the Veteran sought reconsideration of any denied claim, or that he initiated an appeal to the United States Court of Appeals for Veterans Claims with respect to any claim. 38 U.S.C. §§ 7103(a), 7266 (2017). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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 received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, 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 also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The basis of the February 2010 decision that denied the claim of entitlement to service connection for was that there was no evidence of a nexus between the Veteran's COPD and bronchial asthma with obstruction, acquired psychiatric disorder, osteoporosis/arthritis, and chronic esophagitis and small hiatal hernia with GERD, and service. The evidence considered at the time of the February 2010 Board decision included the Veteran's service treatment and personnel records, Social Security Administration records, VA treatment records, and private treatment records. The evidence received since that time includes VA treatment records from September 1997 to October 2015 documenting the Veteran's treatment for bronchial asthma, COPD, and depressive disorder and a March 2010 statement by the Veteran's private general physician opining that the Veteran's respiratory condition is more probably than not related to his exposure to paint irritants in service and that his depression is secondary to the limitations brought on by his COPD and bronchial asthma. As such evidence relates to an unestablished fact necessary to substantiate the claims, namely, the presence of a nexus between a current disability and service, it is new and material, and the claims of entitlement to service connection for COPD and bronchial asthma with obstruction and for an acquired psychiatric disorder are reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As for the Veteran's claims seeking entitlement to service connection for osteoporosis/arthritis and for chronic esophagitis and small hiatal hernia with GERD, newly submitted evidence includes private medical opinions regarding the Veteran's compensation claims for other conditions not currently on appeal and VA and private treatment records documenting treatment for asthma, COPD, depression, hearing loss, and heart disease. Although the evidence is new, it does not show a link between a current disability of osteoporosis/arthritis or chronic esophagitis and small hiatal hernia with GERD and service, and instead pertains to other conditions. Based on the foregoing, as the newly submitted evidence does not relate to an unestablished fact necessary to substantiate the claims, namely, the presence of a nexus between a current disability and service, the Board concludes that the additional evidence received since the February 2010 Board decision is not new and material. As such, the claims for service connection for osteoporosis/arthritis and for service connection for chronic esophagitis and small hiatal hernia with GERD are not reopened. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claims for service connection for service connection for osteoporosis/arthritis and for service connection for chronic esophagitis and small hiatal hernia with GERD, the benefit-of-the-doubt doctrine is not applicable as to that claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection The Veteran contends that service connection for COPD and bronchial asthma with obstruction is warranted as a result of his duties when he was in ACDUTRA status with the Puerto Rico National Guard. He asserts that as part of his duties he painted and performed maintenance on military vehicles but that no safety directives or protective equipment or measures were provided. He further contends that due to the chemical exposure without proper ventilation or protection during this period he developed respiratory problems. The Veteran also contends that service connection is warranted for depression as secondary to his COPD and bronchial asthma with obstruction. He asserts that the physical limitations and hospitalizations he has incurred due to his respiratory problems have resulted in depression. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With respect to National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated in line of duty while performing ACDUTRA, or for disability resulting from an injury incurred or aggravated in line of duty while performing INACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a) (2017). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R.§ 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). Service personnel records reflect that the Veteran served in the Puerto Rico Army National Guard from May 1976 to May 1996, with multiple periods of ACDUTRA and INACDUTRA. The records further show that as part of his duties, the Veteran was responsible for maintenance on tactical utility, engine, and power generator equipment, including overhauling, rebuilding, storing lubricants and fuel, and repairing the equipment. Although the service personnel records do not identify specific periods of ACDUTRA for the performance of these duties, after resolving doubt in the Veteran's favor, the Board finds that it is at least as likely as not that these duties were performed during periods of ACDUTRA and the in-service requirement is met. See 38 C.F.R. § 3.102. Post service treatment records also document complaints, treatment, and diagnoses for COPD, bronchial asthma, and depression. The only remaining issue therefore is whether the Veteran's current COPD and bronchial asthma with obstruction is related to service, and whether the Veteran's current depression is related to COPD and bronchial asthma with obstruction. In addressing why the Veteran's COPD and bronchial asthma is related to service and why the Veteran's depression is related to his COPD and bronchial asthma, the Board considers the March 2010 private opinion by the Veteran's private general physician to carry the greatest probative weight of the entirety of the evidence of record. In her March 2010 statement, the Veteran's physician opined that it is more probable than not that the Veteran's COPD and bronchial asthma re related to his exposure to paint irritants during service. She stated that the Veteran's asthma and COPD began to develop during his active service as a consequence of his exposure and inhalation of pulmonary irritants. She explained that the Veteran's duties maintaining and painting vehicles in a closed area without proper protection and ventilation is a known cause of irritation to pulmonary airways. She further reasoned that, in the long-term, this causes chronic inflammation, which develops into asthma. She stated that asthma results in chronic and irreversible changes of the bronchioles as a sequela of inflammatory disease and obstruction that could develop into COPD, as is the case with the Veteran. The physician further opined that the Veteran's depression is more probably than not related to his COPD and asthma. She explained the Veteran has had various hospitalizations related to asthma and respiratory problems, including hypoxemia, which has limited the Veteran's daily activities and social functioning. She indicated that as a consequence of these limitations, the Veteran has markedly decreased interest and pleasure in most of his usual activities, fatigue, low energy, impaired memory and concentration, frequent crying spells, episodes of irritability and anxiety, and feelings of worthlessness and sadness. The Board finds that this opinion is highly probative as it reflects consideration of all relevant facts. The physician provided detailed rationales for the conclusions reached. Her conclusions are also supported by the medical evidence of record, which includes post-service treatment records documenting treatment for COPD and asthma as early as September 1997, shortly after the Veteran's separation from National Guard service, findings that pulmonary irritation of the airways results in chronic inflammation and is associated with asthma and COPD, and findings that the Veteran's COPD and asthma have resulted in physical and social limitations which in turn have resulted in irritability, frustration, and feelings of worthlessness and sadness. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board accordingly finds that the evidence of record for and against the claim is at least in relative equipoise. Resolving doubt in favor of the Veteran, the claims of entitlement to service connection for COPD and bronchial asthma with obstruction and to service connection for an acquired psychiatric disorder are granted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER New and material evidence having been presented the claim of entitlement to service connection for COPD and bronchial asthma with obstruction is reopened. New and material evidence having been presented the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. As new and material evidence has not been received, the claim of entitlement to service connection for osteoporosis/arthritis is not reopened and the appeal is denied. As new and material evidence has not been received, the claim of entitlement to service connection for chronic esophagitis and small hiatal hernia with GERD is not reopened and the appeal is denied. Service connection for COPD and bronchial asthma with obstruction is granted. Service connection for depressive disorder is granted. ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs