Citation Nr: 18153263 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-43 022 DATE: November 27, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a lung condition, claimed chronic obstructive pulmonary disorder (COPD) and emphysema, for substitution purposes is reopened, and to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for asbestos related disease for substitution purposes is reopened, and to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for epilepsy for substitution purposes is reopened, and to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder to include passive dependency reaction, depression and posttraumatic stress disorder (PTSD), for substitution purposes is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a lung condition for substitution purposes is remanded. Entitlement to service connection for asbestos related disease for substitution purposes is remanded. Entitlement to service connection for epilepsy for substitution purposes is remanded. Entitlement to service connection for a psychiatric disorder to include passive dependency reaction, depression and, PTSD for substitution purposes is remanded. FINDINGS OF FACT 1. Claims for service connection for passive dependency reaction (March 2005 rating decision); PTSD (June 2007 rating decision); asbestos related disease (June 2007 rating decision); a lung disorder (June 2006 rating decision); and epilepsy (June 2006 rating decision) were denied in prior final unappealed rating decisions. 2. The evidence received since the prior final rating decisions is neither cumulative nor redundant and raises a reasonable probability of substantiating the claims for service connection for passive dependency reaction; PTSD; asbestos related disease; a lung disorder; and epilepsy. CONCLUSIONS OF LAW 1. Rating decisions dated in March 2005 (passive dependency reaction); June 2007 (PTSD); June 2007 (asbestos related disease); June 2006 rating decision (a lung disorder); and June 2006 (epilepsy), are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the prior final rating decisions to reopen the claims of entitlement to service connection for passive dependency reaction; PTSD; asbestos related disease; a lung disorder; and epilepsy, for substitution purposes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from February 1958 to October 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision and a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran died in February 2016. In March 2016, the appellant requested that she be substituted for the Veteran as the appellant in his pending appeal. 38 U.S.C. § 5212A. In March 2016, the RO allowed for the appellant’s substitution in the Veteran’s case. The Board notes that in a July 2013 rating decision, the RO denied service connection for PTSD claimed as mental disorder, nervousness and anxiety on the basis that new and material evidence has not been received to open the prior denied claim. The Board finds that this denial encompassed the Veteran’s claim for service connection for passive dependency reaction. Further, the Board finds that the July 2013 rating decision which denied service connection for asbestos related disease, a lung condition, and PTSD (claimed as chronic mental disorder, mental flashbacks, nervousness, and anxiety), is not final. The Veteran has one year from the receipt of the rating decision to submit a notice of disagreement (NOD) to initiate the appeal. 38 U.S.C. § 7105(b) and (c). In addition, any new evidence received prior to the expiration of the appeal period will be considered to have been filed in connection with the claim, which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In July 2013 and in January 2014, the Veteran submitted statements which the Board liberally construes as notices of disagreement with the July 2013 rating decision. See 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015); see also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007); Gallegos v. Gober, 14 Vet. App. 50 (2000), rev’d sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002). Because the statements were received within one year of the July 2013 rating decision, that decision did not become final, and the service connection claim for asbestos related disease, a lung condition, and PTSD (claimed as chronic mental disorder, mental flashbacks, nervousness, and anxiety), remained pending. 38 C.F.R. § 3.156(b). Further, the Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. VA treatment records reflect a diagnosis of PTSD and dysthymia; and a May 2014 VA examination reflected a diagnosis of unspecified bipolar disorder. As such, the Board has characterized the issue of entitlement to service connection for passive dependency reaction and entitlement to service connection for depression as entitlement to service connection for a psychiatric disorder, to include passive dependency reaction, depression and PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 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 establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In Shade, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant’s claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). 1. Whether new and material evidence has been received to reopen a claim of service connection for a lung condition, COPD, and emphysema for substitution purposes 2. Whether new and material evidence has been received to reopen a claim of service connection for asbestos related disease for substitution purposes Service connection for a lung condition was initially denied in an April 2003 rating decision. Reopening of the claim of service connection for a lung condition (claimed as COPD, emphysema) was denied in June 2004, March 2005 and June 2006 rating decisions. The Veteran did not appeal these decisions and they are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In June 2007, the RO denied service connection for asbestos disease. The Veteran did not appeal this decision and it is final. Id. In the June 2013, the RO continued the denial of service connection for asbestos disease (asbestos) and a lung condition (claimed as multiple physical disorder, COPD, and emphysema) finding that new and material evidence had not been submitted. The Veteran disagreed with the decision and perfected this appeal. In August 2014, the Veteran submitted additional evidence regarding his claims for entitlement to service connection for asbestos and a lung condition. The Veteran’s assertions are both new and material. When considered with the evidence of record, this evidence triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Thus, the claims for service connection for asbestos and a lung condition are reopened. See Shade, supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As provided further below, additional development of the evidence is required, and the claims for service connection for asbestos and a lung condition will therefore be remanded for additional development prior to readjudication. 3. Whether new and material evidence has been received to reopen a claim of service connection for epilepsy for substitution purposes The claim for service connection for epilepsy was initially denied in prior rating decisions dated in January 1960 and February 1960; and service connection for a neuropsychiatric (NP) condition was denied in September 1961. In December 1961, the Board denied the Veteran’s claim for service connection for neuropsychiatric disorders, to include epilepsy and passive dependency reaction. The Veteran did not appeal this decision and it is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. More recently, in June 2006, the RO denied service connection for epilepsy essentially based on a finding that the Veteran’s epilepsy was not aggravated by his military service. The Veteran did not appeal this decision and it is final. In the June 2014 rating on appeal, the RO denied service connection for epilepsy finding that new and material evidence had not been received. The Veteran disagreed with the decision and perfected this appeal. Since the June 2006 rating decision, relevant additional evidence, which raises a reasonable possibility of substantiating the claim has been added to the evidence of record. A May 2014 VA examination for traumatic brain injury (TBI) indicates that the Veteran’s epilepsy may have pre-existed service, similar to evidence that was already of record. However, when coupled with his more recent contention of a relationship to vaccinations in service, and his diagnosis of epilepsy in service, it triggers VA’s duty to assist by obtaining a medical opinion. Thus, the claim for service connection for epilepsy is reopened. See Shade, supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As provided further below, additional development of the evidence is required, and the claim for service connection for epilepsy will therefore be remanded for additional development prior to readjudication. 4. Whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder to include passive dependency reaction, depression and, PTSD claimed as a mental condition for substitution purposes Service connection for passive dependency reaction was initially denied in a January 1960 rating decision and service connection for a neuropsychiatric condition was denied in a September 1961 rating decision. In December 1961, the Board denied the Veteran’s claim for service connection for neuropsychiatric disorders, to include passive dependency reaction. The Veteran did not appeal this decision and it is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In March 2005, the RO denied service connection for passive dependency reaction (claimed as mental condition), essentially based on a finding that the Veteran’s claimed condition was not incurred in or aggravated by military service. The Veteran did not appeal this decision and it is final. The Board notes that service connection for PTSD was denied in final rating decisions in August 2005, February 2006, and June 2007. As noted, the Board finds that the July 2013 rating decision, which denied service connection for PTSD claimed as mental disorder, nervousness and anxiety encompasses the Veteran’s claim for service connection for passive dependency reaction. Further, the Board finds that the July 2013 rating decision which denied service connection for PTSD is not final. In July 2013 the Veteran submitted a statement which the Board liberally construes as a notice of disagreement with the July 2013 rating decision. Because the statement was received within one year of the July 2013 rating decision, that decision did not become final, and the service connection claim remained pending. 38 C.F.R. § 3.156(b). In connection with the current appeal, in a June 2014 rating, the RO denied service connection for passive dependency reaction finding that new and material evidence had not been received. Since the March 2005 and June 2007 rating decisions, relevant additional evidence, which raises a reasonable possibility of substantiating the claim has been added to the evidence of record. A May 2014 VA examination for PTSD reflects a diagnosis of unspecified bipolar disorder. When coupled with his contention of a relationship between vaccinations in service and his diagnosis of passive dependency reaction in service, it triggers VA’s duty to assist by providing a medical opinion. Thus, the claim for service connection for passive dependency reaction is reopened. See Shade, supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As provided further below, additional development of the evidence is required, and the claim for service connection for a psychiatric disorder will therefore be remanded for additional development prior to readjudication. REASONS FOR REMAND 1. Entitlement to service connection for epilepsy for substitution purposes is remanded. The Veteran sought service connection for epilepsy, which he asserted was related to service. In April 2014, the Veteran stated that he hit his head during service in the Navy. He stated that the Navy discharged him because he had a grand mal epilepsy. He stated that his medical forms in service showed that he received 600,000 units of Bicillin prophylaxis as a volunteer of a program, #NM-52-05-04-5. However, he stated that he never volunteered for a program, and he did not know what the program was about. The Veteran was afforded a VA examination in May 2014, which reflected a diagnosis of a traumatic brain injury (TBI) from 1961, headaches and a mental disorder; and a May 2014 VA examination, which reflected a diagnosis of unspecified bipolar disorder. The May 2014 VA examiner for TBI opined that the Veteran had mild tension headaches, which were not linked to military service, and that his last severe headache was in approximately 2011, which was similar to the headaches diagnosed as psychogenic headaches in military service. The examiner did not discuss whether the Veteran’s TBI in 1961 aggravated the Veteran’s pre-existing epileptic condition, which renders the examination inadequate. Therefore, the Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran’s epilepsy. 2. Entitlement to service connection for a psychiatric disorder to include passive dependency reaction, depression and, PTSD for substitution purposes is remanded. The Veteran sought service connection for a psychiatric disorder, which he asserted was related to service. In April 2014, the Veteran stated that he hit his head during service in the Navy. He stated that the Navy discharged him because he had grand mal epilepsy. He stated that his medical forms in service showed that he received 600,000 units of Bicillin prophylaxis as a volunteer of a program, #NM-52-05-04-5. However, he stated that he never volunteered for a program, and he did not know what the program was about. The Veteran also stated that passive dependency reaction was first diagnosed in the military. The Veteran was afforded a VA examination in May 2014, which reflected a diagnosis of unspecified bipolar disorder. The VA examiner did not discuss the etiology of the Veteran’s unspecified bipolar disorder. The examiner also did not discuss whether the Veteran’s unspecified bipolar disorder was superimposed on the Veteran’s passive dependency reaction in service. Therefore, the Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran’s psychiatric disorder. 3. Entitlement to service connection for a lung condition claimed as COPD and emphysema for substitution purposes is remanded. 4. Entitlement to service connection for asbestos disease for substitution purposes is remanded. The Veteran sought service connection for asbestos disease and a lung condition, which he asserted were related to service. In August 2014, the Veteran stated that he was aboard a ship that was built in the late 1930s or early 1940s, which had asbestos throughout the ship, and another ship which had been built in the early 1950s and had similar conditions to the first ship. He stated that his job on both ships was gunners mate and asbestos was inside the gun turrets. A July 2010 VA treatment record reflects that a CT scan revealed areas of fibrosis and a December 2011 VA treatment record reflects a diagnosis of pulmonary fibrosis. Based on a review of the record, the Board finds that the duty to obtain a medical opinion has been triggered in connection with this issue. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the Veteran’s prior contentions and the record on appeal, a VA opinion should be obtained to determine the probable etiology of the Veteran’s lung condition, to include whether the Veteran’s lung condition was related to service. The matters are REMANDED for the following action: 1. Attempt to obtain additional service treatment records through official channels, to include records associated with the Medical Research Project Number NM 52 05 04.5, Adenovirus vaccine, polywalsh, 1 ML conducted in 1958. If the records are unavailable, a formal finding in that regard should be associated with the claims file. 2. Then, obtain a VA addendum opinion to ascertain the etiology of the Veteran’s lung condition including any asbestos related disease. The claims file should be made available to and be reviewed by the examiner in conjunction with this inquiry. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that a lung condition, to include pulmonary fibrosis, had its onset in service or was otherwise related to service to include related to asbestos exposure during a period of active duty service. The examiner should consider and discuss the following: (a.) VA treatment records which reflect that the Veteran reported a history of smoking, which he stopped in November 2002; (b.) June 2001 private treatment records noting fibrotic interstitial changes and VA treatment records reflecting diagnoses of pulmonary fibrosis; (c.) April 2013 research regarding asbestos exposure and interstitial pulmonary fibrosis; (d.) Veteran’s statements regarding asbestos exposure from pipes and insulation on ship. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. Obtain a VA addendum opinion to ascertain the etiology of the Veteran’s epilepsy. The claims file should be made available to and be reviewed by the examiner in conjunction with this inquiry. The examiner should address the following: (a.) whether epilepsy clearly and unmistakably (obvious, manifest, undebatable) existed prior to the Veteran’s period of active service from February 1958 to October 1959; In making this determination, the examiner is requested to consider the Veteran’s medical history, accepted medical principles, evidence regarding the basic character, origin and development of the disorder, and lay and medical evidence concerning the inception, development and manifestations of the disorder. The examiner must outline the specific evidence in the record supporting this opinion; (b.) If the examiner determines that there is clear and unmistakable evidence that the Veteran’s epilepsy preexisted active duty service, is there clear and unmistakable evidence that the preexisting epilepsy was NOT aggravated in service beyond the natural progression of such disorder during such service; (c.) If there is no clear and unmistakable evidence that the Veteran had epilepsy that preexisted active duty service and was not aggravated in active duty service, then opine as to whether it is at least as likely as not (50 percent or greater likelihood) that epilepsy had its onset in service, was manifest to a compensable degree within one year of service discharge, or is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the following: (a.) A March 1958 service treatment record, which indicates that the Veteran voluntarily participated in medical research project NM 52 05 04.5, Adenovirus vaccine, polywalsh; (b.) A March 1958 and an April 1958 service treatment record, which reflects that the Veteran was given Bicillin prophylaxis; (c.) An October 1959 Report of Board Medical Survey, which reflects a diagnosis of epilepsy, grand mal and passive dependency reaction; (d.) October 1959 service treatment records, which reflect that the Veteran underwent a spinal puncture in September 1959; (e.) Testimony and statements from the Veteran regarding his fall from a truck prior to service; (f.) Statements from the Veteran regarding being subjected to neurological testing in service; (g.) Statements from the Veteran regarding being a part of a research project in service; (h.) March 2006 statement from the Veteran regarding exposure to lead in service; (i.) March 2006 statement from the Veteran’s spouse; (j.) February 1960 statements, August 1961 statements, and August 1961 testimony from the Veteran’s father, mother, aunt, employer, family friend and private treatment providers. In rendering the opinions, the examiner should consider the statements of the Veteran, his relatives, his friends, his employer, and his treatment providers to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Obtain a VA addendum opinion to ascertain the etiology of the Veteran’s psychiatric disorder. The claims file should be made available to and be reviewed by the examiner in conjunction with this inquiry. The examiner should address the following: (a.) The examiner should identify any psychiatric disorder that was present since the Veteran filed his claim in 2012. The examiner should address the prior diagnoses of record. (b.) For each diagnosis identified (other than PTSD and a personality disorder, if diagnosed), the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder manifested during, is otherwise causally or etiologically related to, or aggravated by, a period of active service. (c.) If a personality disorder is diagnosed, indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s personality disorder was subject to any diagnosed superimposed psychiatric disorder in service resulting in additional disability. (d.) If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, if found. The examiner should consider and discuss the following: (a.) A March 1958 service treatment record, which indicates that the Veteran voluntarily participated in medical research project NM 52 05 04.5, Adenovirus vaccine, polywalsh; (b.) A March 1958 and an April 1958 service treatment record, which reflects that the Veteran was given Bicillin prophylaxis; (c.) An October 1959 Report of Board Medical Survey, which reflects a diagnosis of epilepsy, grand mal and passive dependency reaction; (d.) October 1959 service treatment records, which reflect that the Veteran underwent a spinal puncture in September 1959; (e.) July 1961 private treatment record, which reflects a pre-operative or admitting diagnosis of anxiety reaction and a post-operative or final diagnosis of epilepsy, grand mal, from history and passive dependency reaction; (f.) An August 1961 private medical record, which reflects a diagnosis of personality disorder - passive-dependency reaction and possible early schizophrenia; (g.) Post service VA treatment records which reflect diagnosis of PTSD, bipolar disorder, dysthymia, adjustment disorder and TBI; (h.) Testimony and statements from the Veteran regarding his fall from a truck prior to service; (i.) Statements from the Veteran regarding being subjected to neurological testing in service; (j.) Statements from the Veteran regarding being a part of a research project in service; (k.) March 2006 statement from the Veteran regarding exposure to lead in service; (l.) March 2006 statement from the Veteran’s spouse; (m.) February 1960 statements, August 1961 statements, and August 1961 testimony from the Veteran’s father, mother, aunt, employer, family friend and private treatment providers. In rendering the opinions, the examiner should consider the statements of the Veteran, his relatives, his employer, his friends, and his treatment providers to be competent and credible. (Continued on the next page)   The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel