Citation Nr: 20005015 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 18-42 107 DATE: January 24, 2020 ORDER As new and material evidence to reopen the claim of entitlement to service connection for asthma has been received, to this limited extent, the appeal as to this matter is granted. REMANDED The matter of entitlement to service connection for asthma, on the merits, is remanded. FINDINGS OF FACT 1. A March 1999 rating decision denied service connection for asthma; although notified of the denial in an April 1999 letter, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 2. New evidence received since the March 1999 rating decision includes evidence that was not previously considered and is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim for service connection for asthma, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1999 denial of service connection for asthma is final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. As pertinent evidence received since the March 1999 denial is new and material, the criteria for reopening the claim for service connection for asthma are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1994 to May 1998. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2018 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, confirmed and continued the previous denial of service connection for asthma. The Veteran filed a notice of disagreement (NOD) in July 2018. A statement of the case (SOC) was issued in August 2018, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of the Veterans Appeals) later that month. In August 2019, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In connection with the hearing, the Veteran submitted additional evidence with a waiver of RO consideration of the evidence. Also, this appeal has been advanced on the Board’s docket. See U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Regardless of the RO's actions, as explained below, the service connection claim for asthma was previously denied, and the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen the previously denied claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received and, given the favorable disposition of the request to reopen, the Veteran is not prejudiced by the Board characterizing the asthma claim as encompassing both a request to reopen the previousl6 denied claim and the underlying service connection claim. Request to Reopen Under the legal authority in effect at the time of the prior denial and currently, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). In this case, a March 1999 rating decision denied the Veteran’s claim for service connection for asthma. The evidence then of record consisted, primarily, of service treatment records (STRs) and a September 1998 VA examination report. The stated basis of the denial was that the evidence failed to show that the Veteran had the permanent residual or chronic disability of asthma. Although notified of the denial in an April 1999 letter, the Veteran did not initiate an appeal with respect to the denied claim. Moreover, no new and material evidence was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. § 3.156(b), (c). The RO's March 1999 denial of the claim is therefore final, and not subject to reconsideration on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For requests to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial of the claim is the March 1999 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Evidence received since the RO’s March 1999 denials include Mike O’Callaghan Military Medical Center (MMC) treatment records, an April 2018 medical examination report, a June 2018 methacholine test report, and the transcript of the August 2019 Board hearing. The evidence reflects clinical indications and treatment of an ongoing asthma disability. The Veteran also testified that currently, she is using a rescue inhaler daily to treat her asthma-related symptoms, i.e. constant coughing and choking. The Board finds that, collectively, the above-cited lay and medical evidence provides a basis to reopen the previously denied claim for service connection for asthma. The evidence is "new" in that it had not previously been considered by agency adjudicators, and is not cumulative or duplicative of other evidence of record. The evidence is also "material", in that it is relevant to the previously denied claim, as it includes evidence suggesting a current asthma diagnosis, and assertions as to continuity of asthma-related symptoms since service, which, turn, suggest a nexus between such symptoms and the current disability. While not dispositive of the claim, the evidence relates to unestablished facts necessary to substantiate the Veteran's claims not present in the March 1999 rating decision. Thus, when presumed credible, and pursuant to the low standard of Shade, the evidence provides a reasonable possibility of substantiating the claim, as explained below, by, at a minimum, triggering VA’s duty to obtain further examination and opinion. As new and material evidence for the previously denied claim has been received, the criteria for reopening the claim are met. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Board finds that further agency of original jurisdiction (AOJ) action on the reopened claim for service connection is warranted. The Veteran contends that her asthma began in service and that she has intermittently experienced coughing, breathing, and choking symptoms in and since service. Her STRs document several complaints of coughing and wheezing. Later during service, the Veteran underwent an examination to rule asthma See November 9, 1997 Service Treatment Record. The next day, she was assessed with reactive airway disease for which she was prescribed Proventil. The handwritten assessment recorded “asthma complication” and “PFT” but it is unclear whether a PFT (pulmonary function test) was conducted to effectively rule out an asthma diagnosis. In connection with her September 1998 VA examination, the Veteran underwent pulmonary function testing, which indicated normal spirometry, and chest x-rays, which indicated clear lungs. Although the examiner diagnosed her with history asthma, no asthma was found during the objective medical exams. Post service, the Veteran’s O’Callaghan MMC records note asthma as part of her medical history, as well as prescription inhalers to treat her coughing and wheezing symptoms. On April 2018, chest x-ray and pulmonary function testing results were noted to indicate, respectively, normal spirometry” and “no acute pulmonary process”, respectively. As such, the VA examiner declined to render an etiology opinion due to a lack of an asthma diagnosis. However, the computerized interpretation of these test results stated the following: “There is a minimal obstructive lung defect. On the basis of this study, more detailed pulmonary function testing may be useful if clinically indicated”. Subsequently, in connection with her Board hearing, the Veteran submitted the results of a methacholine challenge test that revealed the following: “…testing is positive for bronchial hyperresponsiveness in the appropriate clinical setting. Other causes… include allergic rhinitis, cystic fibrosis, heart failure, and COPD, and bronchitis.” See June 2018 O’Callaghan MMC - Pulmonary Clinic Record. Considering, in particular, the more recent methacholine testing results, the medical evidence now appears to suggest a current asthma diagnosis. Given this evidence, along with the noted complaints in service, and the Veteran’s lay assertions as to the nature, onset and symptoms, a remand of this matter for further medical examination and opinion is warranted. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claim Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103a; 38 C.F.R. § 3.129. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulation. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. The matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and her agent a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include any private (non-VA) treatment or opinion. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within a one-year period). 2. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA pulmonary /respiratory examination, by an appropriate physician, to obtain information confirming the current presence of asthma, and opinion as to the etiology of such asthma. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Considering all examination findings/testing results, as well as other post-service evidence—to particularly include the Veteran’s June 2018 methacholine study results indicating a diagnosis of asthma—the physician should clearly confirm whether evidence supports a diagnosis chronic asthma at any point pertinent to the current claim. If not, the physician should reconcile such finding with the evidence of record suggesting asthma, to include explicitly explaining why the June 2018 methacholine results are not indicative of such diagnosis, and identifying any testing results that actually rule out asthma. If so, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during active service, is otherwise medically-related to service, to include the respiratory complaints and assessments noted therein. In addressing the above, the physician must consider and discuss all medical evidence and other objective evidence, to include the Veteran’s recent methacholine test results, the computerized interpretation of the April 2018 VA examination report, and the November 1997 service treatment notes. The physician must also consider and discuss all lay evidence of record, as reflected in Board hearing transcript, and written statements of the Veteran, to include her competent assertions as to in-service coughing, choking, and wheezing, as well as her report of such symptoms since service. In this regard, the examiner is advised that the Veteran is competent to report her symptoms and history, her assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached must be provided. 3. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested action above, and any other notification and/or development deemed warranted, adjudicate the claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Spann. Law Clerk 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.