Citation Nr: 19159727 Decision Date: 08/01/19 Archive Date: 08/01/19 DOCKET NO. 1544142 DATE: August 1, 2019 ORDER 1. New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for asthma; therefore, the application to reopen is denied. REMANDED 2. Entitlement to a disability rating in excess of 10 percent for spondylosis of L4 vertebra with chronic back pain and degenerative disc disease prior to February 24, 2015, and in excess of 20 percent thereafter, is remanded. 3. Entitlement to a disability rating in excess of 10 percent for sciatic nerve radiculopathy of the right lower extremity prior to February 24, 2015, and in excess of 20 percent thereafter, is remanded. 4. Entitlement to a compensable disability rating for sciatic nerve radiculopathy of the left lower extremity is remanded. FINDINGS OF FACT 1. In an April 2006 rating decision, the regional office (RO) denied service connection for asthma because there was no evidence relating asthma to service, or no nexus. The Veteran did not appeal the decision after being notified of his appellate rights. 2. Evidence received subsequent to the April 2006 RO rating decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for asthma. CONCLUSION OF LAW The April 2006 rating decision is final. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for asthma has not been added to the record. 38 U.S.C. § §§ 5108, 7105 (2012); 38 C.F.R. § §§ 3.104, 3.156, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1979 to November 1983. In November 2018, the Veteran provided testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. 1. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for asthma. Prior unappealed decisions of the Regional Office (RO) are final. 38 U.S.C. § § 7105(c); 38 C.F.R. § §§ 3.160(d), 20.302(a), 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Entitlement to service connection for asthma was denied in an April 2006 rating decision. The Veteran was notified of the denial and his appellate rights. In the one-year appeal period that followed, the Veteran submitted neither a notice of disagreement nor new and material evidence. This rating decision is final. 38 U.S.C. § § 7105; 38 C.F.R. § §§ 20.302, 20.1103. The April 2006 rating decision denied service connection for asthma because the RO concluded that the disability did not have its onset in service nor was otherwise related to service. Specifically, while the Veteran contended that his asthma developed due to exposure to chemical, nuclear, and biological weapons during his period of active duty service, the RO determined that military records did not establish exposure to such weapons or to other environmental pollutants. Since the April 2006 rating decision, evidence added to the record includes the Veteran’s military personnel records, additional service treatment records and VA medical records. The Board will first address the military personnel and service treatment records, then the VA treatment records. Under 38 C.F.R. § § 3.156(c), it provides that notwithstanding any other section in 38 C.F.R. § § 3.156, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records which existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as if there was no previous final decision. 38 C.F.R. § § 3.156(c)(1). Here, the Board finds that the service treatment and military personnel records added to the file are not relevant because the records are not pertinent to the matter at issue, which is asthma or chemical exposure. See Kisor v. Shulkin, 869 F.3d 1360, 1368 (2017). These records do not show that the Veteran had complaints or treatment that is related to his current asthma nor do they show that the Veteran was exposed to his claimed chemical, nuclear, and biological weapons during service. Specifically, the Veteran’s November 1983 Report of Medical Examination at separation reflects normal clinical evaluations; including “lungs and chest,” with no notation of complaints or diagnosis of asthma. In the accompanying Report of Medical History, the Veteran indicated that he was in “good health” and the physician noted “no abnormalities.” The Veteran denied that he ever had or had at the time, “asthma;” shortness of breath;” “pain or pressure in chest;” and “chronic cough.” Therefore, the Board finds that the service treatment and military personnel records received after the final April 2006 rating decision are not relevant because they are redundant and are not pertinent, as they do not show that the Veteran’s asthma is related to service, to include exposure to chemical, nuclear, and biological weapons. Accordingly, the Board will proceed with the April 2006 rating decision as a final decision. The Board finds that, while there are new VA medical records added since the April 2006 rating decision, this evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim. Specifically, the claim for service connection for asthma had been denied due to a lack of a nexus relating asthma to service, to include chemical exposure. Instead, the added evidence confirms facts that were already of record at the time of the April 2006 rating decision, which is that the Veteran has a diagnosis of asthma, however, the evidence does not show a nexus between the Veteran’s service and such diagnosis. Accordingly, as the evidence submitted since the April 2006 rating decision is not both new and material, reopening of the Veteran’s claim of entitlement to service connection for asthma is not warranted. 38 U.S.C. § § 5108; 38 C.F.R. § § 3.156. REASONS FOR REMAND The record includes VA medical records up to November 2018. However, as there is indication that treatment for the Veteran’s lumbar spine / lower back and associated bilateral lower extremity radiculopathy disabilities has been ongoing, updated VA records should be obtained and the Veteran should be provided an opportunity to identify any outstanding relevant private medical records on remand. These private medical records should include but are not limited to providers referenced during the November 2018 Board videoconference hearing and VA medical records of: 1) Dr. Dietrich at Vanderbilt in One Hundred Oaks, Nashville, TN; 2) TriWest; 3) a pain clinic in Murfreesboro, TN; and 4) Comprehensive Pain Specialists (CPS). 2. Entitlement to a disability rating in excess of 10 percent for spondylosis of L4 vertebra with chronic back pain and degenerative disc disease prior to February 24, 2015, and in excess of 20 percent thereafter, is remanded. The Veteran contends that his spondylosis of L4 vertebra with chronic back pain and degenerative disc disease (lumbar spine / low back disability) is worse than the disability ratings assigned. The Veteran was last afforded a VA examination in March 2015 in order to establish the severity of his lumbar spine / low back disability related symptoms. During the November 2018 Board videoconference hearing, the Veteran testified that his low back disability had gotten worse since his last examination to the point that it was necessary for a spinal cord stimulator. He also indicated that he would be willing to report for an examination. Thus, the Board finds that a remand is necessary to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his lumbar spine / low back disability. 3. Entitlement to a disability rating in excess of 10 percent for sciatic nerve radiculopathy of the right lower extremity prior to February 24, 2015, and in excess of 20 percent thereafter, is remanded. 4. Entitlement to a compensable disability rating for sciatic nerve radiculopathy of the left lower extremity is remanded. The Veteran asserts that his left lower extremity and right lower extremity sciatic nerve radiculopathy are worse than the disability ratings assigned. The Veteran was last afforded a VA examination in March 2015 in order to establish the severity of the sciatic nerve radiculopathy of the left lower extremity and right lower extremity related symptoms. During the November 2018 Board videoconference hearing, the Veteran testified that the radiating pain and numbness from his back to his left and right legs have gotten worse since his last examination. He also indicated that he would be willing to report for an examination. Thus, the Board finds that a remand is necessary to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his sciatic nerve radiculopathy of the left lower and right lower extremities. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private medical records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, related to treatment of his service-connected spondylosis of L4 vertebra with chronic back pain and degenerative disc disease and associated sciatic nerve radiculopathy of the right lower and left lower extremities, to include but are not limited to: • Dr. Dietrich at Vanderbilt in One Hundred Oaks, Nashville, TN; • TriWest; • A pain clinic in Murfreesboro, TN; and • Comprehensive Pain Specialists (CPS). Any negative response should be in writing and associated with the claims file. 2. Obtain all outstanding VA treatment records, particularly since November 2018, and associate them with the claims file. 3. Schedule the Veteran for a VA examination(s) to evaluate the current severity of his service-connected spondylosis of L4 vertebra with chronic back pain and degenerative disc disease and associated sciatic nerve radiculopathy of the right lower and left lower extremities. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.