Citation Nr: 21001354 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-62 949 DATE: January 7, 2021 ORDER The application to reopen the claim for service connection for atrial fibrillation to include as secondary to diabetes mellitus is denied. The application to reopen the claim for service connection for hypertension to include as secondary to diabetes mellitus is granted. The application to reopen the claim for service connection for asthma is granted. REMANDED Entitlement to service connection for restless leg syndrome to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a pulmonary disability to include chronic obstructive pulmonary disease (COPD) and asthma to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure and/or secondary to service-connected disease or injury is remanded. FINDINGS OF FACT 1. In a December 2012 decision, the Board denied service connection for atrial fibrillation to include as secondary to diabetes mellitus. 2. Evidence submitted since the December 2012 Board decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the atrial fibrillation claim. 3. In a December 2012 decision, the Board denied service connection for hypertension to include as secondary to diabetes mellitus. 4. Evidence received since the December 2012 Board decision denying service connection for hypertension relates to a basis for the prior denial. 5. In an unappealed November 2001 rating decision, the RO denied service connection for asthma. 6. The evidence received since the November 2001 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for asthma. CONCLUSIONS OF LAW 1. The December 2012 Board decision that denied service connection for atrial fibrillation to include as secondary to diabetes mellitus is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2019). 2. Since the December 2012 Board decision, new and material evidence has not been received, and the claim of entitlement to service connection for atrial fibrillation to include as secondary to diabetes mellitus is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The December 2012 Board decision that denied service connection for hypertension to include as secondary to diabetes mellitus is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2019). 4. Evidence received since the December 2012 Board decision with regard to the hypertension claim is new and material and the claim of service connection is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 5. The November 2001 rating decision denying service connection for asthma is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 6. Since the November 2001 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for asthma; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1971 and from June 1975 to August 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2014 and January 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a videoconference hearing held at the RO before the undersigned Veterans Law Judge (VLJ). However, a transcript of the hearing was unable to be produced due to audio malfunctions heard throughout the testimony of the Veteran in the Digital Audio Recording System (DARS). As such, the Veteran was informed via an October 2019 letter from VA of the unavailability of the hearing transcript and if he desired another Board hearing, he was to respond within 30 days of the letter. He was further informed that if no response was received, the Board would proceed with adjudication of his claims. A review of the record reveals that the Veteran provided a response noting that he did not desire another Board hearing. Therefore, the Board will proceed with adjudication of the Veteran’s claims. With regard to the Veteran’s pulmonary disability claim, the Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a veteran’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran filed a claim of service connection for COPD. However, he also submitted a medical opinion dated September 2019 from F.C., DNP, FNPC who opined that the Veteran has a pulmonary disease to include bronchial asthma that is a direct result of service. As will be discussed below, the Veteran was previously denied service connection for asthma in an unappealed rating decision dated November 2001. However, as will also be discussed below, the Board finds that new and material evidence has been received to reopen the asthma claim and has recharacterized the reopened claim to include service connection for a pulmonary disability in light of Clemons. New and Material Evidence Pertinent legal criteria A Board decision is generally final as of the date stamped on the face of decision. See 38 C.F.R. § 20.1100 (2019). Additionally, in general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. See 38 U.S.C. § 5108 (2012). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. See 38 C.F.R. § 3.156(a) (2019). Material evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See id. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. See id. The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). Application to reopen atrial fibrillation In a January 2007 rating decision, the RO denied the Veteran’s claim of service connection for atrial fibrillation to include as secondary to service-connected diabetes mellitus. The Veteran filed a timely appeal to the January 2007 rating decision, and in a December 2012 decision, the Board denied the atrial fibrillation claim on the basis that there was insufficient evidence that the Veteran’s atrial fibrillation was either related to service or secondary to his diabetes mellitus. The December 2012 Board decision is final. At the time of the prior Board decision in December 2012, the record included the Veteran’s statements, the Veteran’s service treatment records, postservice VA and private treatment records, and VA examination reports dated March 2006 and May 2011. The service treatment records were absent complaints of or treatment for atrial fibrillation. The March 2006 and May 2011 VA examination report noted the Veteran’s contention that the atrial fibrillation was secondary to the diabetes mellitus. After examination of the Veteran and consideration of the Veteran’s medical history, the March 2006 VA examiner concluded that the Veteran’s atrial fibrillation could not be directly attributed to the diabetes. The May 2011 VA examiner concluded that the Veteran’s diagnosed atrial fibrillation was not caused or aggravated by the diabetes mellitus. The Veteran submitted a private medical opinion from L.Y,, M.D. dated January 2010 that indicated the Veteran’s atrial fibrillation could be related to the Veteran’s diabetes mellitus. In May 2013, the Veteran applied to reopen his claim of entitlement to service connection for atrial fibrillation to include as secondary to diabetes mellitus. In order to reopen the previously denied claim, the evidence submitted since the last final denial (December 2012) must be new and material. After a thorough review of the entire record the Board concludes that new and material evidence sufficient to reopen the claim of entitlement to service connection for atrial fibrillation has not been submitted. In the present case, an unestablished fact is whether the Veteran has atrial fibrillation that is related to service or secondary to the service-connected diabetes mellitus. The added evidence is not new and material as to whether the Veteran’s atrial fibrillation is related to service or is secondary to the Veteran’s diabetes mellitus. The Board acknowledges that the Veteran submitted a March 2013 private medical opinion from Dr. L.Y. that indicates the Veteran’s atrial fibrillation is secondary to the Veteran’s diabetes mellitus. However, the Board notes that the March 2013 opinion from Dr. L.Y. is the same report that was submitted by the Veteran in January 2010. Therefore, the Board finds that the March 2013 report from Dr. L.Y. is not new. Furthermore, with regard to recent statements from the Veteran to the extent that he has atrial fibrillation that is either related to service or secondary to his diabetes mellitus, such evidence is cumulative and redundant of similar statements made prior to the December 2012 Board decision. Accordingly, such statements are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). In short, the requirement which was missing at the time of the December 2012 Board denial of service connection remains lacking. New and material evidence has not been received, and the Veteran’s claim of entitlement to service connection for atrial fibrillation to include as secondary to diabetes mellitus may not be reopened. The application to reopen is denied. Application to reopen hypertension In a January 2007 rating decision, the RO denied the Veteran’s claim of service connection for hypertension to include as secondary to service-connected diabetes mellitus. The Veteran filed a timely appeal to the January 2007 rating decision, and in a December 2012 decision, the Board denied the hypertension claim on the basis that there was insufficient evidence that the Veteran’s hypertension was either related to service or secondary to his diabetes mellitus. The December 2012 Board decision is final. At the time of the prior Board decision in December 2012, the record included the Veteran’s statements, the Veteran’s service treatment records, postservice VA and private treatment records, and a VA examination report dated May 2011. The service treatment records were absent complaints of or treatment for hypertension. The May 2011 VA examination report noted the Veteran’s contention that the hypertension was secondary to the diabetes mellitus. After examination of the Veteran and consideration of the Veteran’s medical history, the VA examiner concluded that the Veteran’s diagnosed hypertension was not caused or aggravated by the Veteran’s diabetes mellitus. The Veteran submitted a private medical opinion from L.Y,, M.D. dated January 2010 that indicated the Veteran’s hypertension could be related to the Veteran’s diabetes mellitus. In May 2013, the Veteran applied to reopen his claim of entitlement to service connection for hypertension to include as secondary to diabetes mellitus. In order to reopen the previously denied claim, the evidence submitted since the last final denial (December 2012) must be new and material. The evidence received since the December 2012 Board decision includes evidence that is new and material to the claim. See 38 C.F.R. § 3.156. Specifically, in October 2019, VA received from the Veteran an October 2019 medical opinion from F.C., DNP, FNPC who opined that the Veteran’s current hypertension is at least as likely as not a direct result of service. Pertinently, there were no findings of a relationship between the hypertension and service at the time of the December 2012 Board decision. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, supra. Application to reopen asthma In a November 2001 rating decision, the RO denied the Veteran’s claim of service connection for asthma on the basis that there was no evidence that the Veteran’s asthma was related to service. The Veteran did not appeal the denial of the November 2001 rating decision and new and material evidence was not associated with the claims folder within one year of the rating decision. The decision therefore became final. At the time of the prior rating decision in November 2001, the record included the Veteran’s service treatment records which documented the Veteran being seen for chest pain in May 1969 as well as for asthma in July 1979, October 1979, and January 1980. In November 2017, the Veteran filed a claim of service connection for “COPD” but subsequently submitted evidence in support of his claim of pulmonary treatment to include treatment for asthma. As such, the Board finds that the Veteran indicated a desire to reopen his previously denied asthma claim. In order to reopen the previously denied claim, the evidence submitted since the last final denial (November 2001) must be new and material. The evidence received since the November 2001 rating decision includes evidence that is new and material to the claim. See 38 C.F.R. § 3.156. Specifically, in September 2019, VA received from the Veteran a September 2019 medical opinion from F.C., DNP, FNPC who opined that the Veteran’s current pulmonary disease to include asthma is at least as likely as not a direct result of service. Pertinently, there were no findings of a relationship between the asthma and service at the time of the November 2001 rating decision. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, supra. REASONS FOR REMAND Restless leg syndrome, pulmonary disability, and hypertension With regard to the Veteran’s claim of service connection for restless leg syndrome, the Veteran contends that he has restless leg syndrome that is related to service or alternatively secondary to his service-connected diabetes mellitus. The Board notes that the Veteran’s service treatment records are absent complaints of or treatment for restless leg syndrome. However, there is no medical opinion of record as to whether the Veteran’s restless leg syndrome is caused or aggravated by the diabetes mellitus. The Board finds that remand for such opinion is warranted. With respect to the Veteran’s claim of service connection for a pulmonary disability, the Veteran contends that he has a pulmonary disability that is related to service or is alternatively secondary to his service-connected diabetes mellitus. The Veteran’s service treatment records document the Veteran being seen for respiratory symptoms in May 1969 as well as for asthma specifically in July 1979, October 1979, and January 1980. The Board further notes a medical opinion dated September 2019 from F.C., DNP who is affiliated with VA and has treated the Veteran for respiratory symptoms in which he opines that it is at least as likely as not that the Veteran has a pulmonary disease to include bronchial asthma that is a direct result of service. No rationale was provided for this opinion. There is no other medical opinion of record as to whether the Veteran’s pulmonary disability is related to service and no medical opinion of record as to whether the pulmonary disability is caused or aggravated by the diabetes mellitus. The Board finds that remand for such opinion is warranted. With regard to the Veteran’s claim of service connection for hypertension, the Veteran contends that he has hypertension that is related to his service or is alternatively secondary to his service-connected diabetes mellitus. With regard to the Veteran’s contention that his hypertension is related to service, the Board notes that his service treatment records are absent complaints of or treatment for hypertension or symptoms relating to such. However, the Veteran’s service personnel records verify his service in Vietnam from October 1970 to October 1971; herbicide exposure is therefore conceded. The Board acknowledges that the Veteran has noted his exposure to herbicides during service in Vietnam, and F.C., DNP, FNPC provided a medical opinion dated October 2019 in which he opined that it is at least as likely as not that the Veteran’s hypertension is a direct result of service. No rationale was provided for F.C.’s medical opinion. There is no other medical opinion of record as to whether the Veteran’s hypertension is related to service to include herbicide exposure. Crucially, the Board notes that in Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Further, hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. In light of the foregoing, the Board finds that remand is warranted to obtain an opinion as to whether the Veteran’s current hypertension is related to service to include herbicide exposure. Moreover, although a VA medical opinion was obtained as to whether the Veteran’s hypertension is secondary to the service-connected diabetes mellitus, as the Veteran has indicated a worsening of his hypertension symptoms, the Board finds that an opinion should also be obtained as to whether the hypertension is caused or aggravated by the diabetes mellitus. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of his pulmonary disability. Based on the review and the examination, the examiner should respond to the following: a. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has a pulmonary disability to include COPD and/or asthma that was incurred in or aggravated by service, to include being seen for respiratory symptoms in May 1969, July 1979, October 1979, and January 1980. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has a pulmonary disability to include COPD and/or asthma that is caused or aggravated by his service-connected diabetes mellitus. If the examiner finds that the pulmonary disability is aggravated by the service-connected diabetes mellitus, then he/she should quantify the degree of aggravation, if possible. A rationale for all opinions expressed should be provided. 2. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of his restless leg syndrome. Based on the review and the examination, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has restless leg syndrome that is caused or aggravated by his service-connected diabetes mellitus. If the examiner finds that the restless leg syndrome is aggravated by the service-connected diabetes mellitus, then he/she should quantify the degree of aggravation, if possible. In regard to the diagnosis, is there an underlying disease or injury that produces the syndrome in this Veteran A rationale for all opinions expressed should be provided. 3. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of his hypertension. The claims file must be made available to the examiner for review.   Based on the review and the examination, the examiner should respond to the following: a. Whether the Veteran’s diagnosed hypertension is at least as likely as not (50 percent probability or greater) related to his service, to include his presumed exposure to herbicides in Vietnam. In making this determination, the examiner should address the NAS updates which concluded that there was “sufficient” evidence of an association between hypertension and herbicide exposure. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s hypertension is caused or aggravated by his service-connected diabetes mellitus. If the examiner finds that the hypertension is aggravated by the service-connected diabetes mellitus, then he/she should quantify the degree of aggravation, if possible. A rationale for all opinions expressed should be provided. 4. Review the claims file to ensure that all of the foregoing requested development is completed and arrange for any additional development indicated. Then   readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.