Citation Nr: 18144027 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-15 745 DATE: October 23, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for partial right lung removal, including as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for a respiratory condition, to include histoplasmosis, pulmonary hyalinizing granuloma (PHB), partial right lung removal, and chronic obstructive pulmonary disease (COPD), including as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. An April 2012 rating decision denied entitlement to service connection for partial right lung removal, including as due to herbicide exposure; no appeal was taken from the determination and new and material evidence was not received within the one-year appeal period. 2. Since the April 2012 rating decision, new and material evidence has been received to reopen the claim for entitlement to service connection for partial right lung removal, including as due to herbicide exposure. CONCLUSION OF LAW New and material evidence having been received since the April 2012 rating decision, the criteria to reopen the claim of entitlement to service connection for partial right lung removal, including as due to herbicide exposure, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from September 1968 to May 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA). 1. New and material evidence to reopen a claim of service connection for partial right lung removal, including as due to herbicide exposure. The Veteran seeks to reopen a claim for entitlement to service connection for partial right lung removal, including as due to herbicide exposure. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be warranted where a present disability is proximately due to or the result of, or aggravated beyond its natural progression by, service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Additionally, the law provides that “a veteran who, during active military, naval, or air service, served in the Republic of Vietnam the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent... unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); see also 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases such as type 2 diabetes and ischemic heart disease shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). In this case, an April 2012 rating decision denied service connection for partial right lung removal due to histoplasmosis because neither is a disease or condition that has a presumed association with herbicide agent exposure. Additionally, the rating decision denied service connection because there was no evidence it occurred in or was caused by service. Notice of the determination was issued to the Veteran, but no appeal was taken from that determination, and new and material evidence was not received within the one-year appeal period. As such, the April 2012 rating decision became final. 38 U.S.C. § 7105. In July 2014, the Veteran petitioned to reopen the claim. The November 2014 rating decision on appeal found new and material evidence had been received sufficient to reopen the claim, but denied entitlement to service connection for partial right lung removal, including as due to herbicide exposure. The Board must consider the question of whether new and material evidence has been received to reopen the claim because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis is neither required nor permitted. Id. at 1384. A final decision cannot be reopened and reconsidered unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Evidence is material where it is relevant and probative of the issues at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. Id.; Evans v. Brown, 9 Vet. App. 273, 283 (1996). New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim in order to reopen the claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). For purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must first determine whether the Veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been received, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law is interpreted in favor of enabling reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). The focus is not exclusively on whether the evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. Thus, evidence is new and material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board finds that new and material evidence was submitted to reopen the claim. The additional evidence of record since the April 2012 rating decision includes new lay statements, medical literature, and a respiratory conditions disability benefits questionnaire (DBQ) completed by Dr. Harrington. The new respiratory conditions DBQ is new but it is merely cumulative evidence of the Veteran’s condition leading up to and immediately after the partial lung removal. Thus, it is not material. Among the new statements, the Veteran contends that the necrotizing granuloma (diagnosed as histoplasmosis—a type of lung infection caused by inhaling Histoplasma capsulatum fungal spores) in his right lung, which resulted in the partial right lung removal, was due to Agent Orange exposure. In the alternative, he contends that he was exposed to various fungi in the jungles of Vietnam which remained dormant in his lungs and (a) resulted in the histoplasmosis or (b) resulted in pulmonary hyalinizing granuloma (PHG). The VA has conceded that the Veteran was exposed to Agent Orange during service. The Veteran also submitted a medical article titled Pulmonary Hyalinizing Granuloma in a Veteran with Latent Tuberculosis and Agent Orange Exposure which suggests a possible relationship between his granuloma and prior Agent Orange exposure. The article indicates that pulmonary hyalinizing granuloma (PHG) is a rare condition that mimics more common respiratory conditions such as respiratory infections or obstructive lung disease, and is often an incidental finding associated with autoimmune, infectious, and neoplastic diseases. The article states that PHG may be asymptomatic for a long period of time, and can present as a single pulmonary nodule, but is more commonly characterized by recurrent, multiple, and bilateral pulmonary nodules. The article further states that PHG is believed to be the consequence of an underlying exaggerated immune response to an underlying inflammatory process, and that the pro-inflammatory biochemical derangements reported to occur due to exposure to Agent Orange may predispose an individual to develop PHG. In the case study reported in the article, the patient was a 39-pack year smoker. He had a five-year history of productive cough with brown/black sputum and had an unintentional 5.4-kilogram (11.9-pound) weight loss over the previous month. He also reported a history of Agent Orange exposure during his service in the Vietnam War. Here, prior to his lung resection, the Veteran had a history of Agent Orange exposure, was at least a 35-pack year smoker, reported a productive cough “for years,” and had unintentional weight loss of almost 50 pounds over the prior four months. See St. John Hospital, Surgical Pathology Report (May 17, 2001) (indicating he was 35-year smoker); see also id., Consultation (May 15, 2001) (indicating the Veteran smoked one and half packs of cigarettes per day for a total 50-pack year history). He also had a pulmonary necrotizing granuloma that confused several doctors. They suspected it was either of fungal etiology or possibly reactivation of tuberculosis (with which the Veteran was diagnosed in 1986, more than a decade after service), but could not quite determine the etiology. Ultimately, the Veteran was diagnosed with histoplasmosis. While histoplasmosis, PHG, and necrotizing granuloma are not on the list of diseases recognized by the VA as having a presumed association with herbicide agent exposure in Vietnam, the availability of presumptive service connection for certain conditions based upon exposure to Agent Orange “does not preclude direct service connection for other conditions based on exposure to Agent Orange.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also 75 Fed. Reg. 32540, 32549 (June 8, 2010). Altogether, the new lay statements and the article submitted in support raise new theories of causation and entitlement, and trigger the VA’s duty to assist by providing a medical examination and/or opinion which might raise a reasonable possibility of substantiating the claim. Id. Therefore, they are new and material. Accordingly, the claim for entitlement to service connection for partial right lung removal, including as due to herbicide exposure, is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory condition, to include histoplasmosis, PHB, partial right lung removal, and COPD, including as due to herbicide exposure, is remanded. This appeal stems from the Veteran’s July 2014 service connection claim for a respiratory condition. Although his claim was much broader than that covered by the prior rating decision in April 2012, he continuously referenced his prior service connection claim for a partial right lung removal. However, his medical records contain diagnoses of respiratory conditions such as histoplasmosis and COPD. See St. John Hospital, Consultation (May 15, 2001) (Dr. Carion noting diagnosis of “presumed chronic obstructive pulmonary disease secondary to longstanding smoking.”); id., Consultation (May 15, 2001) (Dr. Hughes noting mild airways obstruction secondary to cigarette smoking). To this end, the scope of the Veteran’s claim includes any respiratory condition reasonably encompassed by his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, his claim has been expanded, as shown above, to include any respiratory condition, including histoplasmosis, PHB, partial right lung removal, and COPD. As noted above, new and material evidence submitted by the Veteran has triggered the VA’s duty to assist in providing a VA examination and/or medical opinion. Therefore, this issue must be remanded to obtain a VA examination and medical opinion. In addition, the AOJ should request any outstanding medical records which may be pertinent to the Veteran’s claim. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all doctors or treatment facilities who/which may have information pertinent to his claim for service connection for a respiratory condition. Provide the Veteran the appropriate form(s) for Authorization of Release of such records to VA. Upon receipt of such authorization, attempt to obtain all identified records, to include for the period from January 2001 to the present. For any private doctors or facilities, ask the Veteran to complete a VA Form 21-4142. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. All attempts to obtain identified records should be documented of record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of each respiratory condition, to include histoplasmosis, pulmonary hyalinizing granuloma (PHG), partial right lung removal, and COPD. The examiner must opine as to whether any diagnosed respiratory condition is at least as likely as not related to service, to include (a.) his in-service exposure to herbicide agents which has been conceded, and/or (b.) his alleged exposure to fungi in the swamps of Vietnam. A full opinion with rationale should be provided with respect to all elements of this request. In rendering the requested rationale, the examiner must note that the Veteran essentially contends that he was misdiagnosed with histoplasmosis, instead of PHG, and provided medical literature in support thereof. See Correspondence (Dec. 8, 2014). The examiner must also note the Veteran’s assertion that, in the event his diagnosis of histoplasmosis is correct, he contends that he was exposed to the Histoplasma capsulatum fungus in the swamps of Vietnam. The examiner should consider the Veteran’s lay statement that he has lived his entire life in Michigan, as well as a May 2001 post lung resection medical report indicating that the Veteran frequently traveled to the southwest and Hawaii. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel