Citation Nr: 18154014 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-20 171 DATE: November 28, 2018 ORDER The appeal seeking to reopen a claim for entitlement to service connection for a lung condition is granted. REMANDED Entitlement to service connection for a lung condition is remanded. FINDINGS OF FACT 1. An August 2007 Board decision denied entitlement to service connection for a lung condition. In March 2009, the United States Court of Appeals for Veterans Claims (Court) affirmed that decision. 2. The evidence added to the record since the March 2009 Court decision relates to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for a lung condition. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a lung condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1969 to February 1973. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a lung condition The Veteran seeks to reopen a claim of entitlement to service connection for a lung condition. The claim was previously denied in an August 2007 Board decision because there was no current diagnosis of a lung condition. The August 2007 Board decision was affirmed by the Court in March 2009. The decision is final. 38 C.F.R. § 20.1100. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence received since the August 2007 Board decision includes VA medical records which reflect the Veteran has been diagnosed with asthma. Also of record is a July 2015 statement from a private doctor stating that recent pulmonary function testing performed on the Veteran were consistent with chronic obstructive pulmonary disease (COPD), and the condition was more likely than not a result of in-service exposure to barium hydroxide monohydrate MSDS (baralyme). As service connection for the claim was initially denied because he was not found to have a diagnosed lung condition, the newly submitted medical evidence directly relate to the basis of the prior final denial and satisfies the low threshold requirement for new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Entitlement to service connection for a lung condition is remanded. Having reopened the claim of entitlement to service connection for a lung condition, the Board must now address the underlying service connection issue. A VA examination with opinion is necessary in this case before the Board can determine whether the Veteran is currently diagnosed with any conditions related to his lung condition, claimed as COPD, and whether any diagnosed disability is related to active duty service. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain all the Veteran’s available VA treatment records. 2. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed lung condition, to include asthma and COPD. The claims folder and any pertinent medical records should be made available for review by the examiner. The examiner should perform any diagnostic tests deemed necessary and elicit from the Veteran a complete medical history, including any medical treatment. Following a review of the record, and any necessary testing, the examiner should address the following questions: (a) Identify all diagnosed conditions related to the Veteran’s claimed lung condition, to include asthma and COPD. (b) Is it as least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed condition, to include asthma and COPD, had its onset in or was otherwise related to active duty service? A full rationale is to be provided for all stated medical opinions. If the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel