Citation Nr: 21062069 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-04 697 DATE: October 6, 2021 ORDER New and material evidence has been received to reopen a service connection claim for a lung disability. Entitlement to service connection for a lung disability, for substitution purposes, is granted. FINDINGS OF FACT 1. In an unappealed July 2010 rating decision, the RO last denied the claim of service connection for a lung disability. 2. The evidence received since the last final July 2010 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claims of service connection for a lung disability. 3. The Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam during the Vietnam era. 4. The Veteran was diagnosed with a lung disability. 5. The probative evidence reflects that the Veteran's lung disability is related to his presumed in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The July 2010 rating decision that last denied service connection for a lung disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a lung disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to establish service connection for a lung disability, for substitution purposes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran unfortunately passed away. The surviving spouse, who is the appellant in this matter, submitted a request for substitution of claimant upon death of claimant, VA Form 21P-0847. The RO notified the appellant in June 2021 that she had been substituted as the claimant in the Veteran's appeal. The Veteran's surviving spouse has been properly recognized as a substitute claimant. As the Veteran's death occurred after October 10, 2008, the appellant's claim is not one for accrued benefits, but remains his original claim into which she is substituted in his stead. 38 U.S.C. § 5121A. In a June 2018 rating decision, the RO denied service connection for the cause of the Veteran's death. That decision was not appealed. A Board video-conference hearing was held in June 2021 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly- received evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "New" evidence is defined as 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(a). 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). The Veteran initially filed a claim for posttraumatic stress disorder and chronic lung condition in January 2010, which was initially denied by the RO in July 2010. The RO concluded that there was no evidence that the current lung disability was related to service. The Veteran timely filed a notice of disagreement in September 2010 and a statement of the case was provided to the Veteran in June 2011. The Veteran did not perfect the appeal to the Board within the permitted time period nor was new and material evidence received within a year of issuance of the notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In February 2017, the Veteran filed a supplemental claim to reopen the claim for a lung condition. In August 2017, the RO found new and material evidence was received to reopen the claim but denied the claim on the merits. A timely notice of disagreement was filed in December 2017 and a statement of the case was provided later that month. In January 2018, the appellant filed a VA Form 9, which was timely. Based on the procedural history of the case, the last final decision for the claim was the July 2010 rating decision. While the August 2017 rating decision found evidence sufficient to reopen the claim, this does not preclude the Board from addressing the issue. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Additional evidence received since the prior final denial, particularly the June 2021 private medical opinion and Board hearing transcript, speaks to the question of whether the Veteran's disability is related to service. See Shade, supra. Accordingly, new and material evidence having been received, the claims for service connection for a lung disability is reopened; to this extent only, the appeal is granted. Service Connection Pertinent Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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 incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962, through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In addition, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection Claim for a Lung Disability The Veteran, and now the appellant, asserts that the Veteran had a lung disability that was related to exposure to Agent Orange during service. See January 2018 VA Form 9; April 2018 Statement in Support of claim. Initially, the Board finds that the Veteran was diagnosed with a lung disability; specifically, idiopathic pulmonary fibrosis (IPF) with usual interstitial pneumonitis (UIP) pattern. As such, the first element of the claim for service connection is met. Next, the Board finds that the Veteran was presumed to be exposed to herbicide agents, to include Agent Orange, while in service. The Veteran's DD Form 214 shows the Veteran served in the Republic of Vietnam between December 1970 and November 1971, resulting in his receipt of a several decorations including a Vietnam Service Medal, Vietnam Campaign Medal, and Combat Infantry Badge; therefore, the Veteran's exposure to Agent Orange during such service is presumed. Accordingly, the second element of the claim for service connection is met. The Board notes that IPF is not a condition associated with exposure to Agent Orange thus permitting presumption of service connection. However, the appellant is not otherwise precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the claim therefore hinges on whether there is competent evidence of a nexus between the Veteran's lung disability and his active service. The Board finds the evidence is at the very least in relative equipoise. The record contains multiple etiology opinions. In a November 2016 private treatment record, Dr. V.N.A. stated that "While the etiology of fibrosis remains unclear, it suspected that an environmental component may have a role. Thus, it is possible that agent orange exposure is related to the development of pulmonary fibrosis although this remains to be confirmed." In an April 2018 letter, a VA physician, indicated that the Veteran was her patient from July 2016 to January 2018. The physician stated that Veteran had a history of IPF which required lung transplantation in 2014 and historically had extensive exposure to Agent Orange while serving in the military. Dr. C.H. stated that "It is possible that his lung condition was a result of his exposure to agent orange." The Board finds that the November 2016 and April 2018 private medical opinions carry no probative weight because both are only couched in terms of possibility and do not meet the standard applicable here, i.e., "at least as likely as not." The opinions are not only of no probative value but are inadequate to decide the claim. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (A physician's statement framed in terms such as "may" or "could" is not probative); see generally, Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical professional's use of equivocal terms such as "may" or "may not" was too speculative to constitute a definitive opinion on issue of causation). In June 2018, a VA medical opinion was obtained. The examiner, a medical doctor, opined that it was less likely than not that UIP was due to exposure to Agent Orange during the Veteran's active service in Vietnam. The examiner noted the Veteran's service treatment records (STRs) were silent for UIP and there was no evidence of UIP within one year of discharge from service. Next, the examiner stated that UIP was not listed as a presumptive service connection condition from Agent Orange exposure. Regarding the private medical opinions of record at the time, the examiner noted that the appellant's contention that the UIP was related to Agent Orange was not supported by objective evidence or rationale. The November 2016 medical opinion from Dr. V.N.A. stated Agent Orange "may" cause the lung disability, which indicated it was speculative and the opinion did not provide objective evidence or rationale in support of the opinion. Similarly, the April 2018 medical opinion suffered the same deficiencies as the medical opinion from Dr. V.N.A. In conclusion, the examiner found there was no evidence based on medical literature that supported the claim that UIP was caused by or a result of and/or aggravated beyond its natural course from exposure to Agent Orange. The Board assigns little probative weight to the VA medical opinion. The examiner reviewed the medical evidence of record, including the private medical opinions. However, the examiner addressed the UIP disability, but failed to address IPF. In addition, the examiner provided little articulated rationale in support of the overall conclusion, instead using as support the fact that UIP is not listed as a presumptive condition related to Agent Orange exposure and the fact that UIP was not present in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Conversely, in a June 2021 letter, Dr. V.N.A. provided another medical opinion. Dr. V.N.A. first stated he was board certified to practice pulmonary and critical care medicine and was specialist in treating patients with advanced lung diseases and lung transplantation. He continued that he had been treating the Veteran for several years and had fully reviewed the Veteran's medical history in the electronic health records at Penn Medicine and that the Veteran had reported to him his extensive exposure to Agent Orange including in the jungles of Vietnam. Dr. V.N.A. further explained the progression of the Veteran's lung disability, from the June 2010 biopsy to the Veteran's passing, to include the risks associated with each procedure. After review of the complexity of the pulmonary fibrosis itself, Dr. V.N.A. cited to the International Journal of Epidemiology for its finding that the toxin had been associated with increased risk of death in Veterans, to include death related to cancer and other respiratory disorders. Dr. V.N.A. opined that, based on the reported severity of the Veteran's exposure to Agent Orange, emerging evidence of severe medical illnesses associated with this toxin and known correlation of other environmental exposures to subsequent development of pulmonary fibrosis, "it is my assessment that it is at least as likely as not that Agent Orange contributed to the patient's development of pulmonary fibrosis, subsequent need for lung transplantation and ultimately his death." The Board finds the opinion of significant probative value. First, Dr. V.N.A. is well qualified to provide such as opinion, as he not only treated the Veteran, but is a medical doctor board-certified in pulmonary and critical care medicine. Moreover, the opinion of Dr. V.N.A. is based on close observation and treatment of the Veteran, and he is well-informed of the Veteran's medical and military history. Furthermore, this doctor provides a detailed outline of the Veteran's lung issues and provided rationale in support of his conclusion. See Nieves-Rodriguez, supra. The Veteran, and subsequently the appellant, stated that the Veteran's lung disability was related to his exposure to Agent Orange. The Board also considered the lay statements provided by the Veteran's children. While the Veteran was competent to report lay observable symptoms of his lung disability, and the family members are competent to report observations of which they have first-hand knowledge, they are not competent to provide evidence as to more complex medical questions, such as a medical nexus. See Layno v. Brown, 6 Vet. App. 465 (1994). Although lay evidence is competent to relate lay observable symptoms, it is not competent to diagnose and determine the etiology of that diagnosis. Nonetheless, after review of the evidence, both lay and medical, the Board finds the evidence is at the very least in relative equipoise. The Board acknowledges the June 2018 negative VA nexus opinion; however, the Board finds the June 2021 letter from the Veteran's treating physician, Dr. V.N.A. to be the most persuasive, as it addressed the Veteran's history in the military as well as his medical history and relied on his medical experience and continued treatment of the Veteran. The Board recognizes that the Court has not fully embraced a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of any other examiner or evidence. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73. Regardless, the length of a medical professional's opportunity or opportunities to examine a claimant may be considered in assigning probative weight. Guerrieri, 4 Vet. App. at 471-73. Accordingly, the Board finds the evidence is at the very least in relative equipoise, and resolving any reasonable doubt in the appellant's favor, finds that the Veteran's lung disability, diagnosed as IPF, was etiologically related to exposure to Agent Orange in service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection is granted. Because the Board is granting the appellant's claim on a direct theory of entitlement, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.