Citation Nr: 18155243 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-28 759 DATE: December 3, 2018 ORDER The request to reopen a claim for service connection for a left knee disability is granted. The request to reopen a claim for service connection for a right knee disability is granted. The request to reopen a claim for service connection for a low back disability is granted. The request to reopen a claim for service connection for chronic obstructive pulmonary disease (COPD) is granted. The claim for service connection for asthma, including as a result of exposure to herbicide agents (e.g., Agent Orange), is denied. The claim for service connection for COPD, including as a result of exposure to herbicide agents, is denied. REMANDED The claim for service connection for a left knee disability, previously addressed as left leg pain, is remanded. The claim for service connection for a right knee disability, previously addressed as right leg pain, is remanded. The claim for service connection for a low back disability is remanded. The claim for service connection for right lower extremity radiculopathy as related to claimed low back disability is remanded. The claim for service connection for left lower extremity radiculopathy as related to claimed low back disability is remanded. FINDINGS OF FACT 1. In a March 1993 Department of Veterans Affairs (VA) Regional Office (RO) decision, the Veteran’s claim for service connection for a left knee disability was denied. No appeal and no new evidence pertinent to that claim was received within the appeal period. 2. Evidence added to the record since the March 1993 rating decision denying service connection for a left knee disability is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability; the added evidence is thus both new and material. 3. In March 1993 and March 1999 RO decisions, and in a July 2008 Board of Veterans’ Appeals (Board) decision, the Veteran’s claim for service connection for a right knee disability was denied. Reconsideration of the July 2008 Board decision was denied by the Board in a June 2009 letter. 4. Evidence added to the record since the July 2008 Board decision denying service connection for a right knee disability is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability; the added evidence is thus both new and material. 5. In a March 1999 RO decision and in a July 2008 Board decision, the Veteran’s claim for service connection for a low back disability (then characterized as a low back injury) was denied. Reconsideration of the July 2008 Board decision was denied by the Board in a June 2009 letter. 6. Evidence added to the record since the July 2008 Board decision denying service connection for a low back disability is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability; the added evidence is thus both new and material. 7. In an October 2011 RO decision, the Veteran’s claim for service connection for COPD was denied. No appeal and no new evidence pertinent to that claim was received within the appeal period. 8. Evidence added to the record since the October 2011 rating decision denying service connection for COPD is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for COPD; the added evidence is thus both new and material. 9. The most probative evidence indicates that asthma did not develop in service and is not related to service, and did not develop as a result of exposure to herbicide agents. 10. The most probative evidence indicates that the Veteran has not had COPD during the claim period. CONCLUSIONS OF LAW 1. The criteria to reopen the finally denied claim of entitlement to service connection for a left knee disability have been satisfied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 2. The criteria to reopen the finally denied claim of entitlement to service connection for a right knee disability have been satisfied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 3. The criteria to reopen the finally denied claim of entitlement to service connection for a low back disability have been satisfied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 4. The criteria to reopen the finally denied claim of entitlement to service connection for COPD have been satisfied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 5. The criteria for service connection for asthma, including as a result of exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309 (e) (2018). 6. The criteria for service connection for COPD, including as a result of exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309 (e) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1971. The VA is truly grateful for his service. In a signed March 2016 submission, the Veteran clarified that he was withdrawing appealed claims for increased rating for hypertension and anxiety/posttraumatic stress disorder (PTSD). These withdrawals were affirmed at an informal hearing before a Decision Review Officer (DRO) in March 2016. These withdawals were effectuated prior to the Veteran’s perfection of appeals of these claims. The Veteran also testified before the undersigned Veterans Law Judge at a hearing conducted in March 2018. A transcript of that hearing is of record. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). 1– 4. Requests to reopen claims for service connection a left knee disability, a right knee disability, a low back disability, and COPD. The Board herein finds that sufficient evidence has been presented to warrant reopening the appealed claims for service connection left and right knee disabilities, a low back disability, and COPD. The COPD claim is then decided on the merits herein, and the claims for service connection for left and right knee disabilities and a low back disability are the subject of remand, below. The appealed November 2013 RO decision implicitly reopened the claim for service connection for COPD, and then considered the claim on the merits in that decision and in the subsequent supplemental statement of the case (SOC) in April 2016. Hence, the Veteran is not here prejudiced by any Board decision of the claim prior to such consideration of the reopened claim on the merits at the RO level. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). The other reopened claims are not herein adjudicated and are rather the subject of remand development, below, and will be considered by the RO on the merits prior to any Board adjudication of the claim. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. at 117. 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. By a March 1993 decision, the RO denied service connection for injury to the legs based on no relationship shown between the single injury to the left knee in service and claimed injury to the legs. No new evidence or appeal was received pertinent to these claims in the year subsequent to the March 1993 decision, and hence that decision became final as to these denials. The Veteran sought to reopen claims for both knees in June 1998, but in March 1999 the RO only addressed the right knee claim. In 1999, the Veteran also filed a claim for service connection for a low back injury which was denied by the March 1999 decision. The Veteran appealed that March 1999 decision and in July 2008 the Board denied claims for service connection for a right leg injury and a low back disorder. The Veteran requested reconsideration of that Board decision and reconsideration was denied by a June 2009 letter. By an October 2011 decision, the RO denied service connection for COPD. No new evidence or appeal was received pertinent to the COPD claim in the year subsequent to the October 2011 decision, and hence the denial of service connection for COPD became final. The requests to reopen the claims for service connection for a right and left knee disorders (also characterized as right and left leg pain), a low back disorder, and COPD arise from a November 2013 RO decision. (Because the RO failed to address the Veteran’s June 1, 1998, request to reopen his claim for service connection for a left knee disorder prior to the November 2013 RO decision, June 1, 1998, is to be regarded as the date of request to reopen the subject of the current appeal before the Board as to the left knee disorder claim.) Subsequent to the last final prior denial of a claim for service connection for a left knee disorder in March 1993, subsequent to the Board’s July 2008 denial of claims for service connection for a right knee injury and a low back disorder, and subsequent to the last prior final denial of the claim for service connection for COPD in October 2011, new and material evidence has been received in the form of new VA examinations that were conducted as well as the Veteran’s submitted statements and his testimony at a hearing before the undersigned Veterans Law Judge in March 2018. At this new hearing, the Veteran provided testimony that was different in small but material respects from the prior submitted statements and prior testimony provided at the September 2003 Board hearing. Accepting the validity of the Veteran’s newest narrative of a fall in service and subsequent treatment as well as his new testimony regarding respiratory difficulties from service, the Board finds that reopening of the claims for service connection for left and right knee disabilities, a low back disability, and COPD is warranted. Claims for service connection for asthma and COPD, including as a result of exposure to herbicide agents, considered on a reopened basis (on the merits). The Veteran contends, in effect, that he developed a respiratory disorder as asthma or COPD in service, or that he developed these conditions as a result of exposure to herbicide agents when he served in Vietnam. Service connection may be presumed for certain diseases if a veteran was exposed to certain herbicide agents, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed 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); 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran’s service personnel records support his service in Vietnam during the Vietnam Era, and hence his exposure to herbicide agents in service is presumed. Id. However, neither asthma nor COPD is included in the list of diseases presumptively related to exposure to herbicide agents. See 38 C.F.R. § 3.309 (e). Nonetheless, the Board must still consider whether the evidence supports a causal link between service and asthma or COPD, including based on Agent Orange exposure in service; and the Veteran may present medical evidence supporting a link between exposure to herbicide agents and his development of these diseases. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s service records do not reflect any findings, treatment, or diagnosis of asthma or COPD, or indeed of any obstructive or restrictive lung disease, and none is shown for years following service. There is a notation on the Veteran’s March 1971 report of medical history, concurrent with his March 1971 examination for service separation, indicating a history of shortness of breath. However, there is no notation of either asthma or COPD, and no comment by a medical professional regarding this history. The Veteran’s March 1971 service examination report includes no report or finding of a respiratory condition. As the RO noted in its October 2011 rating decision, VA treatment records from 1996 to 2011 show some treatment for a condition then characterized as COPD, but these records did not support onset in service or a relationship to service. Associated with the record in December 2012 is an undated letter from a private physician, J.P., who notes the Veteran’s history of two years of exposure to herbicide agents while in service in Vietnam. The examiner then notes the Veteran’s subsequent history of having developed COPD, as well as some persistent respiratory symptoms for which the Veteran uses a nebulizer. The physician then also addresses the Veteran’s history of myocardial infarction. The physician then provides the following opinion: “Exposure to Agent Orange likely contributes to this patient’s current limitations and must be taken into consideration.” Unfortunately, this letter from J.P., M.D. is not sufficiently specific as to what “current limitations” the Veteran’s exposure to herbicide agents contributed to, or how the physician arrived at such a conclusion. An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). A medical opinion that contains only data and conclusions cannot be accorded any weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Because the opinion by J.P., M.D., does not specifically address either COPD or asthma as related to Agent Orange exposure, and because the physician does not support the opinion with any analysis that can be weighed against contrary evidence, the opinion cannot be accorded any weight. Id. The Veteran was afforded an official examination in March 2016. The examiner noted the history of shortness of breath from service, but did not conclude that this indicated COPD or asthma. The examiner reviewed VA treatment records and concluded that the Veteran’s respiratory difficulties were more consistent with asthma than COPD, and accordingly only diagnosed asthma. Current treatment for asthma also supported this diagnosis. The examiner reviewed the Veteran’s current pulmonary function tests which were negative for an obstructive pattern, and thus concluded that a diagnosis of COPD could not be supported. A spirometry was negative, and current chest x-rays also showed no cardiopulmonary disease. At the examination, the Veteran reported a history of asthma going back to 1970 and of COPD for six years. However, the examiner opined that because the Veteran did not have COPD, it was not at least as likely as not that the Veteran had COPD related to his shortness of breath in service. Regarding asthma, the examiner opined that because the claims file includes no mention of asthma or treatment in service and the Veteran’s March 1971 examination for service separation was not marked for asthma, it was not at least as likely as not that the Veteran’s asthma was incurred in service or was caused by the shortness of breath in service. The Board finds that the balance of competent and credible evidence of record is consistent with and supportive of these opinions of the March 2016 examiner, and that the examiner’s opinions are supported by medical knowledge and adequate rationale. Hence, the examiner’s opinions are entitled to substantial weight. The Veteran has not reported that he was diagnosed or treated for asthma in service or in years proximate to service, only expressing his belief of its onset in service. While the Board does not doubt the sincerity of the Veteran’s belief, the presence of asthma rather than merely shortness of breath due to some other cause in service is a medical question beyond lay capacity to discern, and is rather a distinctly medical question. Hence, while the Veteran is competent to report his symptom from service, he is not competent to establish asthma as having been present in service. The Veteran has not been shown to have the requisite medical expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, on these questions of whether the Veteran had asthma in service or whether it is causally related to service, the medical examiner’s opinion is competent and probative, whereas the Veteran’s opinion is not competent and therefore not probative. The Veteran is similarly not competent to discern whether current disability is COPD or asthma because medical knowledge and expertise is also required for such purpose. Jandreau v. Nicholson, 492 F.3d 1372. The March 2016 examiner based his diagnosis of asthma and not COPD on applicable scans and tests, including pulmonary function tests, as well as on the Veteran’s current treatment records and treatment protocol. The Board accordingly concludes that the weight of competent and credible evidence supports a diagnosis within the claim period of asthma and not COPD. Thus, the claim for service connection for COPD is denied based on absence of current disability during the claim period. 38 C.F.R. § 3.303. The Veteran has also presented no competent evidence supporting a causal link between his presumed exposure to herbicide agents in service and his development of asthma. Thus, because asthma is not on the presumptive list for a link to exposure to herbicide agents, service connection cannot be supported on that presumptive basis. 38 C.F.R. § 3.307(a)(6); 3.309(e). Because competent evidence is not presented supporting a causal link between the Veteran’s presumed exposure to herbicide agents in service and his development of asthma years later, service connection on that basis is also not supported. 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039. Because medical evidence from service and subsequent to service does not support onset of asthma in service or a causal link between service and current asthma, because the Veteran is not competent to address date of onset of asthma (as opposed to symptoms of shortness of breath), and because the March 2016 examiner has provided an opinion entitled to substantial weight against a causal link between service and the Veteran’s asthma, the preponderance of the evidence is against finding onset of asthma in service and against a finding of a causal link between service and the Veteran’s asthma. Because the preponderance of the evidence is against the claims for service connection for COPD and asthma, including as a result of exposure to herbicide agents, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. – 5. Claims for service connection for left and right knee disabilities, a low back disability, and radiculopathy into the left and right lower extremities as associated with the lower back disability, are remanded. Regrettably, these claims must be remanded because they are all claimed to originate from the same fall in service when the Veteran reports he injured his knees and low back, and hence the inadequacy of a medical opinion addressing the claimed low back disability as related to service is intertwined with these other claims alleged to have all originated from the same incident. Under such circumstance, all these intertwined issues must await remedy of the inadequate examination opinion addressing the low back disability, to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Veteran has variously reported and testified to falling in a deep trench or a deep hole in service with injury to multiple parts including the knees and low back. The Veteran was afforded a VA examination in March 2016 and the examiner was to provide a medical opinion addressing the likelihood of disabilities of these parts being casually related to service, including related to a fall in service. The examiner attributed the Veteran’s low back disability not to service but rather to a motor vehicle accident which occurred in 1999. However, VA treatment records from 1998 and 1999 reflect that while the Veteran did have a motor vehicle accident in March 1999 which resulted in injury to his back, he also had a low back disability prior to that motor vehicle accident. The records included an MRI from September 1998 showing both degenerative disc disease at L4-L5 and L5-S1 as well as degenerative joint disease. Hence, the entirety of the Veteran’s low back disability is not attributed to that motor vehicle accident, and an addendum is required to address the likelihood that such low back disability which is not attributable to the motor vehicle accident in March 1999 may be due to injury in service or otherwise may be causally related to service. Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the March 2016 VA examiner failed to provide opinions adequately addressing the claimed knee disabilities by failing to provide an opinion as to the likelihood that current left and right knee disabilities are related to service, including related to the reported fall in a hole or a ditch in service. The March 2013 examiner only provided opinions as to whether a right knee disability was related to a left knee disability, and whether a left knee disability was related to treatment in service. Hence, further examination addressing the knees is required. Id. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, including from VA and private facilities, as indicated. All actions to obtain the requested records should be documented in the claims file. 2. Return the claims file to the VA examiner who conducted the VA back and knees examinations in March 2016, for additional opinions of etiology related to service. The examiner should review the record. If evaluation of the Veteran is deemed necessary, such should be undertaken. If that examiner cannot provide the requested examination addendum, then an addendum or further examination should be sought from another examiner. For these opinions, the examiner should consider both the Veteran’s lay statements regarding injury in service as well as objective evidence from service and following service. The examiner must consider the Veteran’s statements as potentially valid accounts of events in service, but the examiner may also consider the plausibility of such accounts, and whether the credibility of the accounts is impaired by inconsistency between the Veteran’s multiple statements and inconsistency with objective evidence of record. The examiner is to be advised that for the back disability claim, the addendum is required because the examiner provided an opinion to the effect that the Veteran’s low back disability was likely due to a motor vehicle accident in 1999 rather than to any injury in service, whereas VA treatment records from 1998 and 1999 include treatment for low back disability prior to a March 1999 motor vehicle accident, and an MRI from September 1998 showing degenerative disc disease at L4-L5 and L5-S1 as well as degenerative joint disease. Thus, the examiner must provide a new opinion of etiology of the Veteran’s low back disability with due consideration of the Veteran’s lay statements as well as examination and treatment records. The examiner is to be advised that for the knee disabilities claims, clear opinions are required addressing the likelihood that current disabilities are related to service including related to the reported fall in a ditch or a hole in service. For any low back disability and any right or left lower extremity radiculopathy present during the claim period, the examiner must provide an opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the disability either developed in service or is otherwise causally related to service, including related to the reported fall in a hole or a ditch in service. For any disability present in each knee during the claim period, the examiner must provide an opinion (a separate opinion for each identified disability of each knee) addressing whether it is at least as likely as not (50 percent or greater probability) that the disability either developed in service or is otherwise causally related to service, including related to the reported fall in a hole or a ditch in service. Complete explanations must be provided for these opinions. 3. After completing the above actions, and any other development as may be indicated by any response received, the claims must be readjudicated. If any of the remanded claims remain denied, a supplemental statement of the case must be provided to the Veteran and his authorized representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled (Continued next page)  in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter