Citation Nr: 18119335 Decision Date: 07/18/18 Archive Date: 07/18/18 DOCKET NO. 14-30 676 DATE: July 18, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a respiratory disability is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), emphysema, or hypoxemia, including as related to exposure to environmental hazards, is remanded. FINDINGS OF FACT 1. A March 2006 rating decision denied service connection for a respiratory disability. The Veteran was notified of that decision and of his appellate rights, but he did not initiate an appeal. Thus, the decision became final. 2. In March 2012, the Veteran filed a request to reopen a previous claim for service connection for a respiratory disability. 3. The evidence received since the March 2006 decision relates to unestablished facts necessary to substantiate the claim for entitlement to service connection for a for respiratory disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2006 rating decision that denied service connection for a respiratory disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied claim for entitlement to service connection for a respiratory disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes the Veteran’s service records from his deployment in the Persian Gulf are unavailable and may have been destroyed. The Board is mindful that, in such a case, VA has a heightened obligation to assist the Veteran in the development of a claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Pruitt v. Derwinski, 2 Vet. App. 83 (1992). Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is evidence that has not previously been reviewed by VA adjudicators. Material evidence is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The claim for service connection for a respiratory disability was originally denied in a March 2006 rating decision because there was no evidence of a diagnosis for a respiratory disability and no evidence of complaints of or treatment for respiratory conditions in service. The Veteran was notified of the decision and of his appellate rights, but he did not initiate a timely appeal. There is also no indication that new and material evidence was received within one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b). Thus, the decision became final. The pertinent evidence received since then includes private medical records, VA medical records, and VA examination reports showing that the Veteran currently has a respiratory disability. The evidence also includes lay statements, correspondence, and the Veteran’s testimony at an April 2018 Board hearing related to his claim that he developed respiratory problems during his deployment to the Persian Gulf during active service and that the symptoms have continued to the present. The new evidence indicates that the Veteran’s current respiratory disability may be related to active service. Presuming the credibility of the new evidence, the new evidence suggests that the Veteran’s respiratory disability may have been incurred during or caused by active service. That evidence is new, not cumulative, and relates to unestablished facts necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for a respiratory disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Service connection for a respiratory disability is remanded. The Veteran contends that he is entitled to service connection for a respiratory disability to include COPD, emphysema, hypoxemia, or other undiagnosed chronic respiratory disabilities, including as related to his exposure to environmental hazards while deployed in the Persian Gulf from October 1990 to April 1991. Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be granted for a disability due to a qualifying chronic disability of a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multi symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). For the purposes of this section, the term medically unexplained chronic multi symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to: (1) Fatigue; (2) unexplained rashes or other dermatological signs or symptoms; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs and symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the upper or lower respiratory system; (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). The service separation form indicates that the Veteran had service in support of Operation Desert Shield/Desert Storm. Among other decorations, the Veteran was awarded the Southwest Asia Service Medal with two Bronze Service Stars and the Kuwait Liberation Medal. Therefore, the Veteran has a period of service in the Persian Gulf Theater of Operations during the Persian Gulf era. The Veteran’s medical records show that he has a respiratory disability. However, VA examination reports, VA medical records, and private medical records do not agree as to the diagnosis. The majority of the Veteran’s medical records show that his respiratory symptoms are treated as COPD and emphysema. The Veteran contends that the denial of his claim was improperly based on a finding that there was no evidence of complaints of or treatment for respiratory problems during his deployment to the Persian Gulf. The Board notes that the evidentiary record contains correspondence from the United States Department of the Army, Center of Military History, Historical Resources Branch, reporting that, after Desert Shield/Desert Storm, deployed units were told they could destroy records. The report noted that when servicemembers began seeking medical records from deployment to the Persian Gulf, the records were found to no longer exist. The evidentiary record includes a single service medical record, dating in March 1991, showing that the Veteran was transferred to Landstuhl Army Regional Medical Center in Germany after two episodes of left-sided chest pain the Veteran experienced while in the Persian Gulf. The Veteran denied shortness of breath. No cardiological changes were found but pain was relieved with nitroglycerine. The examiner noted the Veteran had an unremarkable medical history except that he was a two pack per day smoker. The diagnoses were noncardiac chest pain and tobacco abuse. A November 1992 VA medical record reported a slight diffuse increase in pulmonary interstitial markings and some degree of underlying pulmonary hyperinflation. According to a July 1994 VA medical record, the examiner found that previous X-rays showed a slight diffuse increase in pulmonary interstitial markings with possibly some degree of underlying pulmonary hyperinflation, and concluded that there were no changes since the November 1992 and August 1993 X-rays. The examiner opined that the X-ray findings demonstrated long-term stability of chest. According to an October 1994 VA medical record, an examiner reviewed the Veteran’s Persian Gulf Registry Code Sheet, in which the Veteran indicated that he had not been involved in cleaning contaminated areas or equipment, had not been in recently contaminated areas, had not been enveloped in smoke, but had been in a smoky area. The Veteran reported being tired all the time. The examiner diagnosed chronic fatigue syndrome and COPD. A June 1996 private medical record reported that chest X-rays showed the Veteran’s lungs to be clear. A June 1998 private medical record shows that the Veteran had contracted bronchitis. He had a cough, chest congestion, wheezing with rhonchi. Previously, he had been prescribed amoxicillin without results. A May 2003 private medical record, from Wellmont Holston Valley Medical Center, showed the Veteran complained of shortness of breath with chest pain and fatigue. X rays of the lungs showed they were clear, with no acute disease. The Veteran asserted he stopped smoking in February 1991. According to an August 2004 VA medical record, chest X rays showed clear lungs with no acute cardiopulmonary processes. However, September 2004 private medical records indicated that the Veteran described a crushing chest pain which worsened upon walking, decreased with rest, and was associated with shortness of breath and a non-productive cough. The examiner found that the Veteran was obese, still smoked, but that the lungs were clear, with the occasional wheeze. The examiner diagnosed the Veteran’s respiratory condition as COPD and noted that COPD breathing treatments had been helpful in increasing sputum production and decreasing wheezing. Private and VA medical records from December 2005 to April 2008 do not show respiratory problems. Private medical records from November 2008 and March 2009 show respiratory symptoms such as coughing, shortness of breath, wheezing, and obstructive sleep apnea. According to September 2010, October 2010, and November 2010 private medical records from Pulmonary Associates of Kingsport, the Veteran reported he currently had wheezing and that he had a history of wheezing since childhood. He admitted that he had smoked half a pack of cigarettes a day since the age of 18 and continued to smoke the same amount. The Veteran had recently been seen for shortness of breath and a cough, which he reported having for a few years. He denied sputum production or hemoptysis. The examiner opined that the Veteran’s respiratory disability had an element of asthma because of a cough associated with wheezing. The examiner noted the Veteran previously had been diagnosed with COPD. Although the Veteran reported worsening shortness of breath, the examiner found that the lungs sounded clear, with no wheezes, crackles, or rhonchi. According to a June 2011 VA medical record, a CT scan of the chest showed mild bilateral emphysematous/COPD changes and mild mosaic perfusion of the lungs. The examiner opined that the symptoms could be from COPD. A June 2011 VA medical record, pulmonary clinic note, shows that the Veteran reported exposure to sand, dust, fuel and smoke fumes, and asbestos while deployed in the Persian Gulf. The Veteran stated that after his recovery in Germany he was transferred stateside to complete his term of duty because of worsening shortness of breath and chest pains. The Veteran indicated that he could only walk about 50 feet. He also reported a productive cough with green phlegm. At a September 2013 VA respiratory examination, the examiner diagnosed hypoxemia. The examiner recognized that the Veteran’s respiratory condition required the use of inhaled medication, a bronchodilator daily, and home oxygen, but identified no other respiratory conditions. The examiner relied on a note from the staff pulmonologist, which stated that because the reason for the Veteran’s hypoxemia remained obscure, they could only “assume there is micro-atelectasis due to his obesity. Given his symptoms and his diabetes mellitus with neuropathy, we should consider that he could have phrenic nerve dysfunction.” In a February 2014 VA examination report, the examiner opined that the Veteran’s respiratory symptoms were not related to a specific event in service, but were caused by a long history of smoking, mild COPD, obesity, deconditioning, and obstructive sleep apnea. In a July 2014 notice of appeal, the Veteran asserted that the examination was inadequate because it lasted only one minute, the examiner never spoke to him; and that the examiner did not consider that he had documentation showing that his service records from his deployment to the Persian Gulf were unavailable and likely had been destroyed. The Board also notes that the examiner did not consider a December 2000 Department of Defense letter indicating that the Veteran’s unit may have experienced minor exposure to chemical agents upon the burning of chemical agent munitions while deployed in the Persian Gulf or consider the two May 2013 VA letters conceding that the Veteran was exposed to burn pit toxins and high levels of particulate matter while deployed in the Persian Gulf. The examiner also did not consider the lay evidence provided by the Veteran’s family, friends, co workers, and fellow servicemembers, all of whom stated that the Veteran was healthy prior to deployment to the Persian Gulf and returned with respiratory symptoms that continued and worsened over time. The examiner also checked off that the Veteran had other pulmonary conditions, but did not specify what the conditions were or consider whether they could have been incurred in service. For example, according to chest X-rays, the Veteran had hyperinflated lungs with chronic interstitial markings, but the examiner found no gross changes from July 2012 and March 2012 chest X-rays. The examiner reviewed an August 2013 CT scan of the chest, but provide no analysis. The examiner also reviewed an August 2012 CT scan of the thorax and compared it to a June 2011 CT scan. The examiner noted that a mildly prominent bronchopulmonary lymph node was less prominent than in a previous scan where it was found to be 1.1 centimeters in diameter, but did not otherwise comment on the significance. The August 2013 CT scan also showed scarring in left lung apex and the upper lobe posteriorly, with no pleural fluid, and there was evidence of old granulomatous disease, for which the examiner also did not provide analysis. Further, the examiner did not weigh the medical evidence with the other evidence of record in considering whether the respiratory conditions were more likely than not related to service. The Board finds the September 2013 and February 2014 examinations to be incomplete for appellate review. When VA provides an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); Daves v. Nicholson, 21 Vet. App. 46 (2007); Green v. Derwinski, 1 Vet. App. 121 (1991); Bowling v. Principi, 15 Vet. App. 1 (2001). A medical opinion must support the conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When the record leaves an issue in doubt, it is the Board’s duty to remand for further development. Based on the significant differences in the diagnoses in the two most recent VA respiratory condition examinations and the lack of complete review of the evidentiary record, the Board finds that remand is necessary for additional medical opinion and further review of the record. The matter is REMANDED for the following action: 1. Obtain all VA medical records not already of record 2. After obtaining appropriate authorization, obtain all private medical records identified by the Veteran that are not already of record. 3. Schedule the Veteran for VA examination with a pulmonologist to determine the nature and likely etiology of any respiratory disability, and whether any respiratory disability is related to or was incurred during service. The examiner must review the entire evidentiary record and should note that review in the report. The examiner must include the rationale with all opinions, citing to supporting factual data as appropriate. Based on examination, interview of the Veteran, and review of the records, including the lay statements submitted on the Veteran’s behalf, the examiner should provide opinions that respond to the following: (a) Diagnose all respiratory disabilities shown by the record during the pendency of the claim. (b) For each respiratory disability diagnosed, opine whether it is at least as likely as not (50 percent or greater probability) that each respiratory disability was incurred in service, or is the result of exposure to environmental hazards or any other event during service. The opinion should discuss the findings during service and the findings in a November 1992 VA medical record of a slight diffuse increase in pulmonary interstitial markings and some degree of underlying pulmonary hyperinflation. The examiner should consider a December 2000 Department of Defense letter indicating that the Veteran’s unit may have experienced minor exposure to chemical agents upon the burning of chemical agent munitions while deployed in the Persian Gulf. The examiner should consider May 2013 VA letters, which conceded the Veteran’s exposure to burn pit toxins and to high levels of particulate matter while deployed in the Persian Gulf. The examiner must consider the information in the letters together with the evidence of record, including lay evidence. (c) The examiner should opine whether there are objective indications of any respiratory disability present that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Objective indications of a chronic disability means signs, in the medical sense of objective evidence, and other, non-medical indicators that are capable of independent verification. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel