Citation Nr: 19186061 Decision Date: 11/14/19 Archive Date: 11/14/19 DOCKET NO. 17-21 160 DATE: November 14, 2019 ORDER Entitlement to service connection for diabetes, to include as due to exposure to certain herbicide agents, is stayed until January 1, 2020. The claim for service connection for asbestosis is reopened. REMANDED Entitlement to service connection for asbestosis is remanded. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for diabetes is based on active duty service subject to the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Navy Act). 2. The Secretary of Veterans Affairs has directed that pending claims subject to the Blue Water Navy Act be stayed until January 1, 2020, the effective date thereof. 3. The Veteran’s claim for entitlement to service connection for asbestosis was previously denied in a rating decision of September 2011. 4. The denial of service connection for asbestosis was confirmed and continued in a rating decision of August 2015. 5. The evidence received since the September 2011 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSION OF LAW New and material evidence has been received to reopen the issue of service connection for asbestosis. 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 October 1973 to September 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of August 2015 and April 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Because the Veteran waived his right to a hearing in his April 2017 appeal to the Board and again in correspondence of June 2019, no hearing before the undersigned VLJ was scheduled. Before addressing the merits of the Veteran’s claims, the Board finds it necessary to briefly discuss their procedural history so as to identify claims which are now stayed or are no longer on appeal. Following statements of the case (SOC) issued by the RO in April 2017, the Veteran’s contemporaneous appeal to the Board included the issues of service connection for diabetes, new and material evidence as to service connection for asbestosis, and an increased rating for posttraumatic stress disorder (PTSD). In correspondence of June 2018, the Veteran stated that he “would consider the grant of at least a 70 percent schedular disability rating for his PTSD effective April 16, 2014… a full grant of the benefits he seeks in this appeal.” In a subsequent rating decision of July 2019, the RO increased the Veteran’s disability rating for his PTSD to 70 percent effective from April 16, 2014. Accordingly, the Board finds that the issue of an increased disability rating for PTSD is no longer on appeal because the RO has already fully granted the benefits sought by the Veteran. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (providing that “a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded”) (emphasis added). The Board now turns to the issue of the Veteran’s entitlement to service connection for diabetes, which may be affected by the Blue Water Navy Act. On July 1, 2019, the Secretary of Veterans Affairs directed the Board to stay adjudication of all cases which may be so affected until the Blue Water Navy Act’s effective date of January 1, 2020. The Blue Water Navy Act creates new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. Once the stay is lifted, adjudication of stayed cases will be resumed in accordance with the Board’s docket order. The Board therefore finds that a stay of the issue of service connection for diabetes is warranted and will proceed to adjudicate the issue of new and material evidence for asbestosis on the merits. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for asbestosis. Generally, “[if] 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.” 38 U.S.C. § 5108 (2018). “New evidence is evidence not previously part of the actual record… [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). 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. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence “as to each previously unproven element of a claim”) (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The record reflects that the Veteran has already satisfied the second Shedden factor. In statements of January 2011, the Veteran describes his exposure to asbestos incident to his duties aboard two vessels of the United States Navy. His military personnel records, filed as of May 2014, further corroborate his service aboard both vessels. Because the Veteran’s statements are consistent with the conditions and circumstances of his service, the Board finds his January 2011 statements competent and credible. However, the Veteran is not competent to diagnose asbestosis, nor to link such a diagnosis to his active duty service, because he lacks the necessary medical expertise. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). His claim was previously denied because the RO, after evaluating contradictory medical evidence of July 2010 from the Veteran’s private treatment records and a VA examination of August 2011, concluded that he had not shown that it was at least as likely as not that he had a medically-established diagnosis. To reopen his claim, the Veteran must therefore submit evidence not previously part of the record at the time of the September 2011 rating decision which supports either the first or the third Shedden factors. In December 2011, the Veteran submitted additional private medical records. These reflect a CT scan showing “minimal scar or atelectasis in the lungs” and a physician’s diagnosis of asbestosis. The Board notes that the December 2011 diagnosis and the prior private medical opinion of July 2010 appear to have been made by two different private physicians. The previous private medical opinion of July 2010 provides a statement from Dr. R.J. The December 2011 records provide notes from Dr. J.B. The Board therefore finds that this evidence was not previously part of the actual record at the time of the RO’s September 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Accordingly, the Board finds that the Veteran has presented new and material evidence sufficient to reopen his claim for entitlement to service connection for asbestosis. 38 U.S.C. § 5108. REASONS FOR REMAND 1. Entitlement to service connection for asbestosis. The private medical records of December 2011 provide a diagnosis, but no opinion as to causation. The Board notes that the previous VA examination report of August 2011, because it concluded that the Veteran did not have asbestosis, also did not provide further consideration of causation. The Veteran underwent an additional VA examination in January 2012 on the issue of asthma. The January 2012 VA examiner, in concluding that there “is no evidence that the veteran has asthma or any other lung condition,” referenced the prior August 2011 VA examination on asbestosis. The January 2012 VA examiner further opined that “[the] examination findings are consistent with an acute process (e.g. URI) or obese habitus (i.e. atelectasis).” However, the examiner did not explain, as required by law, the basis for this conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (providing that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”) (internal citation omitted). “[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight… if it contains only data and conclusions.” Id. at 304. In other words, it is not clear to the Board why the “minimal scar or atelectasis in the lungs” identified in the December 2011 private treatment records is, or is not, indicative of “an acute process” as opposed to asbestosis, nor is there any competent medical evidence in the record as to causation. There is therefore insufficient competent medical evidence in the record for the Board to adjudicate this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). This matter is therefore REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriately-qualified examiner. The examiner shall review the claims file, including a copy of this remand. The examiner shall opine as to the diagnosis and etiology of any conditions of the Veteran’s lungs, to include asbestosis. The examiner shall specifically address whether it is at least as likely as not that any lung conditions are due to or aggravated by the Veteran’s active duty service, including exposure to asbestos. 2. If the examiner finds that signs or symptoms suggest an alternative etiology, the examiner shall fully explain why such signs or symptoms make an alternative etiology more likely. If the examiner cannot provide such opinions without speculation, the examiner shall   fully explain why more definite conclusions cannot be reached. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.