Citation Nr: 20007611 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-02 588 DATE: January 29, 2020 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory and/or pulmonary disorder, to include as a qualifying chronic disability and/or secondary to service-connected gastroesophageal reflux disease (GERD). REMANDED Service connection for a respiratory and/or pulmonary disorder, to include as a qualifying chronic disability, and/or secondary to service-connected GERD is remanded. FINDINGS OF FACT 1. In an April 2013 rating decision, the RO denied service connection for a respiratory/pulmonary disorder. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 2. Evidence received since the April 2013 rating decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for a respiratory/pulmonary disorder.   CONCLUSIONS OF LAW 3. The April 2013 rating decision denying service connection for a respiratory/pulmonary disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). 4. New and material evidence has been received to warrant reopening of the claim of service connection for a respiratory/pulmonary disorder. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from October 1995 to October 1999. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans’ Affairs (VA) Regional Office in Portland, Oregon. The Veteran testified at a hearing in Portland, Oregon in October 2019. New and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory and/or pulmonary disorder. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). 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 or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, 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 that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). In an April 2013 rating decision, the RO denied service connection for the Veteran’s respiratory disorder because it could not be linked to Gulf War environmental exposures, but rather to a common and well-diagnosed disability, namely GERD. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the April 2013 decision included the following: 1) the Veteran’s service treatment records; 2) a VA examination from March 2013; 3) service personnel records (SPRs); and 4) VA medical records from October 2009 to March 2013. In the March 2013 examination, a VA examiner found that the Veteran’s respiratory condition was not likely due to Gulf War illness but rather connected to his history of GERD or allergies. Evidence submitted after the April 2013 decision includes the following: 1) a May 2015 VA examination for esophageal conditions, noting that the Veteran’s cough was not related to his GERD; 2) Veteran’s statement, to include testimony at the October 2019 Board hearing; and 3) VA medical records from January 2015. The Veteran’s testimony was that he was exposed to harmful particles when he sanded aircraft and disposed of radar absorbent materials as part of his military duties or that his pulmonary issues were secondary to his service-connected GERD. The Board therefore finds that new and material evidence has been submitted, as the Veteran has offered new evidence that pertains directly to a basis for the prior denial of his claims. The May 2015 VA examination directly contradicts the March 2013 VA examination and undermines the basis for the denial of service connection in the April 2013 rating decision. The evidence are new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claims - evidence of an in-service incident and a possible connection between the Veteran’s GERD and his pulmonary issues. 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claims. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened.   REASONS FOR REMAND Entitlement to service connection for a respiratory and/or pulmonary disorder, to include as a qualifying chronic disability, and/or secondary to service-connected GERD is remanded. The Veteran contends that he suffers from chronic cough as a result of exposure to chemical and environmental hazards during the Persian Gulf War; specifically, to incinerator smoke. Alternatively, he contends that his condition is secondary to his service-connected GERD. Service connection may be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (such as CFS, fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). As an initial matter, the Board notes that SPRs document that the Veteran served in Kuwait; thus, exposure to environmental hazards/burn pits is verified. Moreover, the SPRs indicate exposures to the chemical Naptha/Safety Kleen. Additionally, the Veteran is service connected for GERD, evaluated as 10 percent disabling, from December 23, 2014. The Veteran’s STRs mention bloody coughing twice in December 1997. The Veteran maintained in a March 2013 VA examination that he was exposed to numerous toxic chemicals due to his MOS during the Gulf War. He noted that he was exposed to incinerator smoke during his deployments and that his duties included disposing of radar absorbent material in incinerator burns. He reported that it was because of his exposure to this incinerator smoke that he developed a chronic respiratory condition. The Veteran indicated that he did not suffer from respiratory illness prior to the Gulf War. Rather, these symptoms manifested during and upon his return from the Gulf. In the March 2013 VA examination, the examiner identified no diagnosed illnesses for which no etiology exists and performed an additional respiratory conditions disability benefits questionnaire (DBQ). The examiner reviewed the Veteran’s claims file and found that the Veteran did not have a diagnosable respiratory condition. The examiner administered a pulmonary function test (PFT) but the results were largely invalidated due to the Veteran’s coughing. The examiner still found, however, that there was no evidence of airflow obstruction. Although the examiner indicated that the PFT results should not be used as a clinical indicator, he concluded that the Veteran was without a chronic disability attributable to his service in Southwest Asia. The examiner concluded that the Veteran’s “chronic cough” condition is more likely due to common and well diagnosed illnesses, such as the Veteran’s history of allergies and GERD. In a May 2015 VA examination, however, the examiner opined that although the Veteran’s chronic cough could be related to GERD, it could also be due to other factors such as post-nasal drip. The examiner found that currently, there was no evidence to link the Veteran’s GERD to his chronic cough. The Board finds both the March 2013 and May 2015 VA examinations inadequate. The implication of the medical opinions is that the Veteran does not have a current disability manifested by chronic cough. However, deficiencies in the provided rationale leave the Board unable to make such a determination. In this regard, although the VA examiner from the March 2013 examination found no diagnosed illnesses for which no etiology exists, she provided no discussion of why the Veteran’s chronic cough symptoms do not satisfy the criteria for a respiratory condition due to Gulf War exposures. The examiner failed to provide more than a conclusory rationale that the chronic cough symptoms were due to the Veteran’s GERD or allergies and provided no reliable results from the PFT. This conclusion ultimately conflicts with the findings of the May 2015 VA examination in which the examiner found no current evidence of a connection between the Veteran’s GERD and his chronic cough. The VA examiner provided a conclusory statement that there was no current evidence linking the Veteran’s chronic cough to his GERD and provided no explanation. In the absence of a medical opinion and rationale which adequately address the Veteran’s competent and credible reports of chronic cough, the Board finds that an addendum medical opinion is required to provide further guidance. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Lastly, the examiners’ opinions in the March 2013 and May 2015 VA examinations differed as to what, if any, relationship exists between the Veteran’s chronic cough and his service-connected GERD. The Board acknowledges that, in the absence of a current disability manifested by chronic cough, the issue of secondary service connection would be moot. However, given that further medical guidance is needed as to the nature of the Veteran’s claimed chronic respiratory issues, the Board finds that the relationship, if any, between the Veteran’s chronic cough and GERD should also be addressed on remand. As there are conflicting opinions in the March 2013 and May 2015 VA examinations, an examiner must address whether there is a relationship between the Veteran’s service-connected GERD and his respiratory issues. The May 2015 examination is also ultimately inadequate because, although the examiner opined that the Veteran’s cough was unlikely to have been caused by his GERD, the examiner failed to address whether the Veteran’s chronic cough was aggravated by his GERD. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Based on the foregoing, the Board finds that an addendum opinion is required in order to establish whether or not the Veteran has a diagnosis for his symptoms of chronic cough; or in the alternative whether such symptoms constitute an undiagnosed illness or chronic disability; and whether or not his symptoms noted above are attributable to any other diagnosis, to include her service connected GERD.   The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran a VA examination regarding the nature and etiology of his respiratory and/or pulmonary disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, is there a respiratory and/or pulmonary disorder that can be attributed to a known clinical diagnosis? If yes, then provide an opinion regarding whether it is it at least as likely as not (50 percent or greater probability) that each identified clinical diagnosis is etiologically related to active service, to include symptoms during service, Gulf War exposures, or chemical exposures document in the SPRs. If no, then provide an opinion regarding whether it is it at least as likely as not (50 percent or greater probability) that respiratory/pulmonary symptoms are an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology? For each diagnosable chronic multi-symptom illness with a partially explained etiology opine whether it is at least as likely as not that it is related to Persian Gulf exposures. Finally, the examiner must provide an opinion regarding each diagnosed respiratory and/or pulmonary disorder, whether it is it at least as likely as not (50 percent or greater probability) that it is caused or aggravated by service-connected GERD. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board Ashley Ki 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.