Citation Nr: 19111663 Decision Date: 02/13/19 Archive Date: 02/13/19 DOCKET NO. 15-40 746 DATE: February 13, 2019 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability is granted. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disability is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a respiratory disability is remanded. FINDINGS OF FACT 1. In a January 1994 decision, the Board denied the Veteran’s claims of entitlement to service connection for low back disability and a lung condition. 2. The evidence received since the January 1994 decision includes medical evidence, which relates to unestablished facts necessary to substantiate the matter of entitlement to service connection for disabilities of the low back and the lungs and, if presumed credible, raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The January 1994 rating decision denying a claim of entitlement to service connection for a low back disability and a lung condition is final. 38 U.S.C. § 7105 (1992); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993). 2. New and material evidence has been received to warrant reopening of the claims of service connection for a low back disability and a lung disability. 38 U.S.C. §§ 5107, 5108, 7104 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to March 1980 and from April 1980 to November 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2018, the Veteran presented sworn testimony during a personal hearing in St. Louis, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disability. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a January 1994 decision, the RO denied the Veteran’s original claims of entitlement to service connection for a low back disability and a lung condition. The Veteran did not appeal the decision. As new and material evidence was not received within one year of the decision, it became final as to the identified claims. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Under these circumstances, the RO’s January 1994 rating decision is final as to the Veteran’s claims of entitlement to service connection for a low back disability and a lung condition, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In January 2011, the Veteran again filed claims of entitlement to service connection for disabilities of the low back and lungs. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(f). The Board recognizes that the RO failed to develop the January 2011 low back and lung disability issues as new and material evidence claims, but rather considered the matters only on the merits. However, the question of whether new and material evidence has been received is one that must be addressed by the Board. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). Nevertheless, because the Board finds that the claims should be reopened, the Veteran has not been prejudiced by this failure. To this end, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in January 1994. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claims of service connection for disabilities of the low back and lungs. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received regarding the request to reopen the Veteran’s claims of entitlement to service connection for low back and lung disabilities. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, private treatment records dated from 2014 to 2016 document a diagnosis of restrictive lung disease as well as continuing complaints of low back pain. In addition, the Veteran and his spouse have submitted numerous lay statements detailing the Veteran’s continuing complaints of low back and respiratory symptomatology dating from his active duty service. Critically, this evidence relates to the previously unestablished elements of diagnosis and continuity as to the low back and lung disability claims. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, supra. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts entitlement to service connection for a lumbar spine disability, which he contends was incurred during his military service. Specifically, he has stated that he developed low back pain after being made to carry very heavy tool boxes from the deck to the dock while up and down steep stairways and narrow passages. See the June 2019 Board hearing transcript at pg. 3. The Veteran’s service treatment records (STRs) dated in April 1976 showed that he complained of low back pain following heavy lifting in excess of 200 pounds. He reported discomfort to the paraspinous area. See the STRs dated April 1976. STRs dated in July 1982 noted the Veteran’s report of low back pain; he was diagnosed with a muscular strain. Mechanical low back pain was indicated in November 1986. The Veteran’s July 1992 Report of Medical History at separation noted his report of recurrent low back pain status-post injury on the ship in 1979. The Veteran was afforded a VA examination in May 2013 at which time the examiner confirmed a diagnosis of degenerative disc disease (DDD) of the lumbar spine. As to the question of nexus, the examiner stated that the claimed low back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, “[h]e was diagnosed with low back strain in the service that resolved. He has worked many years post-service that can aggravate the back, and his symptoms are pretty well controlled with the use of a back brace/belt.” The examiner concluded, “[t]here does not appear to be a significant, specific injury to the back while in the service that is the most likely etiology of his current back pain.” Critically, the May 2013 VA examiner rationale is confusing and inconsistent with the evidence of record. Although the examiner indicated that the Veteran’s initial low back strain resolved, the examiner failed to recognize the multiple complaints of low back pain documented in the Veteran’s STRs including the recurrent low back pain reported at separation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is “suitably qualified and sufficiently informed”) (emphasis added). The Board finds that the evidence currently of record is inadequate to resolve the claim of service connection for a low back disability. Therefore, remand of this matter for an additional VA examination is warranted to address outstanding questions of nexus. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). On remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C. § 5103A(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a respiratory disability is remanded. The Veteran contends that he developed a respiratory disability during his active duty service, which has continued to the present day. He has asserted respiratory injury due to asbestos and exposure to hazardous chemicals and fumes. See, e.g., the June 2019 Board hearing transcript, pgs. 2 and 5. To this end, the Board notes that the Veteran’s STRs document his exposure to asbestos, JP-5, talcum powder, and Freon. See the STRs dated February 1979, October 1984, April 1991, March 1992, and November 1992. Moreover, STRs are replete with documentation of complaints of congestion and sinusitis. See the STRs dated April 1973, November 1988, April 1989, July 1989, October 1989, July 1990, and January 1992. In addition, an STR dated in December 1984 indicated that the Veteran exhibited symptoms of mild restrictive lung disease with an obstructive component per the Pulmonary Clinic. A chest x-ray performed in April 1991 showed “small specks of high density probably artifacts;” a repeat chest x-ray was recommended. Another chest x-ray conducted in May 1991 showed the “presence of at least one minute calcification in the right lower lobe, which most likely represents a small granuloma.” The Veteran was afforded a VA examination in May 2013 at which time the examiner indicated that the Veteran did not have a currently diagnosed lung disability. The examiner stated, “[t]here is no current lung diagnosis, and he is not following any doctor for lung problems. He does have a history of significant exposures, but the anecdotal complaints of cough do not reach any diagnostic criteria. Lung examination today is normal.” Private treatment records dated in August 2015 noted a diagnosis of restrictive lung disease of unclear etiology. This was confirmed by a computerized tomography (CT) scan performed in September 2015. The Veteran was afforded another VA examination in January 2016 at which time the examiner noted a diagnosis of restrictive lung disease. As to the question of nexus, the examiner indicated that the Veteran reported that his wife urged him to investigate his cough and CT scan, conducted in 2015, showed some pulmonary scarring. The examiner noted that the Veteran was also diagnosed with bladder cancer and received treatment in the summer of 2015. The examiner stated, “[e]tiology of abnormal CT finding is unknown at this time. No diagnosis was given; Insufficient documentation presented.” The examiner concluded, “therefore, the claimed lungs condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service exposure, injury, event, or illness. Without the diagnosis, etiology cannot be determined and, with that, it cannot be service-connected as claimed.” Notably, both the May 2013 and January 2016 VA examiners failed to address the abnormal chest x-rays shown in the Veteran’s STRs, as well as the notation of restrictive lung disease symptomatology documented during his active duty service. The Board therefore finds the VA opinions to be of little probative value as to the etiology of the diagnosed restrictive lung disease. See Nieves-Rodriguez, supra. In support of his service connection claim, the Veteran submitted a February 2017 opinion from Dr. W.B. who stated that the Veteran was diagnosed with bronchiectasis, which “[h]istorically, you have had this since the military. You are a non-smoker, therefore military exposures likely led to the development of the bronchiectasis.” The examiner noted that, although the Veteran has a history of asbestos exposure, he does not have asbestosis. As to the diagnosed restrictive lung disease, Dr. W.B. stated, “[i]t is my understanding that you have had an evaluation; however, no unifying diagnosis has been established.” Dr. W.B. indicated that the Veteran also has a pulmonary nodule of undetermined etiology. Notably, Dr. W.B.’s opinion as to the now-diagnosed bronchiectasis was provided without supporting rationale. As such, it is of diminished probative value. See Nieves-Rodriguez v. Peake, supra. In sum, the evidence currently of record is inadequate to resolve the claim of service connection for a respiratory disability. Therefore, this matter must be remanded to obtain an additional VA opinion as to outstanding questions of nexus. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr, supra. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed low back disability. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then address the following: With respect to the diagnosed lumbar spine disability, to include DDD, is it at least as likely as not that any identified disability was incurred in the Veteran’s active duty service, or manifested within a year of his active duty discharge? In rendering this opinion, the examiner must address the notations of low back pain documented in the Veteran’s STRs, as referenced above. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. In addressing the above, the examiner must consider and discuss all pertinent medical, periodical, and other objective in- and post-service evidence, and all lay assertions. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed respiratory disability. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then address the following: With respect to ANY diagnosed respiratory disability, to include bronchiectasis, restrictive lung disease, and pulmonary nodule, is it at least as likely as not that the identified disability was incurred in the Veteran’s active duty service, or manifested within a year of his active duty discharge? In rendering this opinion, the examiner must address the notations of sinusitis, shortness of breath, and restrictive lung symptomatology documented in the Veteran’s STRs, as referenced above. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. In addressing the above, the examiner must consider and discuss the pertinent medical, periodical, and other objective in- and post-service evidence, and all lay assertions. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. (Continued on the next page)   All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel