Citation Nr: 21062744 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-20 616 DATE: October 12, 2021 ORDER New and material evidence having been received, the petition to reopen a claim for service connection for bronchial asthma is granted. New and material evidence having been received, the petition to reopen a claim for service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for residuals of strep throat is denied. Entitlement to service connection for a bilateral foot disability is denied. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for bronchial asthma is remanded. Entitlement to service connection for OSA is remanded. FINDINGS OF FACT 1. In an April 2010 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bronchial asthma and OSA; the Veteran did not appeal the denials and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the April 2010 rating decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bronchial asthma and OSA. 3. The evidence is against finding that the Veteran has had residuals of in-service strep throat at any time during or approximate to the pendency of the claim. 4. The evidence is against finding that any bilateral foot disability began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for bronchial asthma have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for reopening the previously denied claim for service connection for OSA have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for residuals of strep throat have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bilateral foot disabilities have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the VA Regional Office (RO). The issues were previously before the Board in March 2020, where they were remanded for additional development. In November 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. The Board notes that there is suggestion in the record that some of the Veteran's service treatment records may be missing. As the Board noted in its previous remand, October 1978 Military Personnel Records note that the Veteran enlisted for a period of six years in the U.S. Army Reserve, and it appeared that records from any Reserve period had not been obtained. In February 2010, the RO notified the Veteran that, after several attempts, his STRs were unavailable for review, and that any further attempts to obtain such records would be futile. Subsequent to the Board's previous remand, however, the Veteran reported in a May 2020 communication with the RO that he did not have any Reserve or National Guard service beyond his period of active-duty service noted on his DD-214. The Board nevertheless notes that, when service records may be missing, there is a heightened duty on the Board to explain its findings and conclusions. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when a veteran's medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Claims to Reopen If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Whether new and material evidence has been received to reopen claims for service connection for bronchial asthma and OSA The RO denied the Veteran's claims of service connection for asthma and OSA in an April 2010 rating decision, finding that the evidence did not reflect that these disabilities existed for service connection purposes. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The evidence received since the April 2010 rating decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. For example, private medical treatment records provided in October 2014 show a history of asthma and OSA, both of which have been confirmed upon VA examinations recently in July 2021. This new evidence addresses the reason for the previous denial; that is, currently diagnosed disabilities, and raises a reasonable possibility of substantiating the claims. The credibility of this evidence is presumed for purposes of reopening. See Justus, 3 Vet. App. at 513. Accordingly, the claims are reopened. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). As explained in the remand section below, the Board has determined that additional development is necessary before the merits of the Veteran's claims for service connection for a bronchial asthma and OSA can be addressed. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 2. Entitlement to service connection for residuals of strep throat The Veteran's STRs note in-service treatment for strep throat for which he has claimed service connection. The Board concludes, however, that the Veteran does not have a current diagnosis of strep throat or any residuals of his in-service strep throat, nor has he had such at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Pursuant to the Board's remand, a VA infectious disease examination was afforded in July 2021. The VA examiner evaluated the Veteran and determined that, while he experienced strep throat in service, he did not have a diagnosis of strep throat or any current residuals. Further, VA and private treatment records do not contain a diagnosis of strep throat or any residuals. While private practitioner, Dr. I.G., stated in a September 2014 that the Veteran has had "phlegms and congestions" since his in-service incident of strep throat, there is no indication that Dr. I.G. performed a physical examination or any diagnostic tests to confirm the presence of strep throat residuals. Instead, the statement appears to be based on the Veteran's self-reported medical history, which is inconsistent with treatment records that show no actual no diagnosis. Consequently, the Board gives more probative weight to the July 2021 VA examiner's findings. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. The record is negative for any objective evidence of any residual of strep throat, nor is there any evidence of functional impairment associated with such. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). As such, the claim must be denied. 3. Entitlement to service connection for a bilateral foot disability The Veteran testified at his November 2019 hearing that he began to have problems with his heels toward the end of active service, and that he believes his condition is due to the footwear and poor working conditions during active service. While the Veteran filed a service connection claim initially for bilateral heel spurs, the Board notes that the Veteran currently has several bilateral foot disabilities. At a July 2021 VA foot conditions examination, for examples, the Veteran was diagnosed with pes planus (flat foot) and bilateral arthritis, in addition to his bilateral heel spurs. As he has described overall foot pain during the course of his appeal, the Board has recharacterized and expanded the issue on appeal to include all foot disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the remaining question is whether a current foot disability is related to service. The Veteran's STRs show no complaints, diagnosis, or treatment related specifically to a bilateral foot disability. While the Board notes that a March 29, 1978 STR indicates a complaint of pain in the left foot from a suspected inversion sprain, further review of STRs from this date suggest that the Veteran actually suffered a left ankle sprain while playing basketball, with the Talofibular ligament (which is at the ankle) noted to be tender. X-ray testing focused specifically on the distal third of the tibia and fibula were normal. His remaining STRs are negative for any complications resulting from this one particular incident. As the Veteran reported several other ailments during service, and as foot problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems specifically with his feet during service the Board would expect that he would have reported these problems to medical professionals. Moreover, while the Veteran has asserted that he began to have problems with his feet towards the end of service, evaluation of the feet was normal during his May 1980 separation examination. In a corresponding report of medical history, the Veteran specifically denied having had foot trouble. If foot pain was present during service, the Board would expect the Veteran would have responded "yes" when asked foot trouble at separation because a reasonable person would have interpreted the question to include symptoms of foot pain. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having foot trouble. While the Veteran asserted during his Board hearing that he was not diagnosed with heel spurs until a few years after service, a diagnosed foot disability is not actually shown by medical evidence until approximately February 2015, many years after the Veteran's separation from service, where a VA treatment record simply notes bilateral heel spurs with no date of diagnosis or indication of their onset. Pursuant to the Board's previous remand, the Veteran was provided the opportunity to provide the necessary information and authorization for VA to obtain any outstanding private treatment records, and the Veteran responded in May 2020 and identified a number of private practitioners. The record does not suggest that any records identified by the Veteran may be outstanding. As a chronic foot disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of a current bilateral foot disability cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where he denied any foot trouble at all. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran presented for a VA examination in July 2021, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that is less likely than not that any of the Veteran's foot disabilities are related to his military service. In support of this conclusion, the examiner explained that, while he does have a history of foot pain post service, there is a lack of evidence in Veteran's service record for any foot complaints, to include flat foot, and only after many years after service did the Veteran begin to experience symptoms. The Board finds the above opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran, and there is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The opinion is also supported by other evidence of record. As previously noted, the Veteran's separation examination and contemporaneous report of medical history is negative for foot complaints, despite his assertion during his hearing that his foot trouble began towards the end of service, and there is no record of foot complaints for decades after service. This calls into question the veracity of the Veteran's statements regarding the purported onset of his foot problems. The Board has considered the Veteran's statements, to include his assertions that his foot disabilities are related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., foot pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While the Board regrets further delay, the Veteran's claims for service connection for bronchial asthma, allergic rhinitis, and OSA must be remanded for additional development. The Board noted in its last remand the Veteran asserted that all of his claimed respiratory disabilities may be related, in part, to in-service working conditions as a track-and-wheel mechanic; specifically, that he was exposed to fumes, gas and smoke while working in a poorly ventilated area. His DD-214 notes that his primary specialty was a track and vehicle mechanic, and his STRs show that in May 1979 he was treated for hay fever and for a stuffy nose in May 1980. On separation examination in May 1980, he gave a history of hay fever and it was noted that he had chronic upper respiratory infections for one year. While A VA examiner in July 2021 provided the opinions that the Veteran's rhinitis, asthma, and OSA are less likely than not related to his military service, none of these opinions address the Veteran's assertions regarding his in-service hazardous exposures. The Board also notes that the examiner, in providing the opinion that the Veteran's OSA is more likely due to obesity and not an in-service fractured nose, also opined that his OSA is not related to posttraumatic stress disorder or a heart condition, which was not a question posed by the Board in its previous remand directives. As the record does not reflect a diagnosis of any acquired psychiatric disorder, the Board can only assume that the examiner simply copied and pasted information from a different veteran, and therefore affords the OSA opinion little, if any, probative weight. Thus, a remand for addendum opinions is necessary. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his remaining claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer opinions as to the etiology of the Veteran's claimed bronchial asthma, allergic rhinitis, and OSA disabilities. The examiner is asked to consider: a) Whether it is at least as likely as not (50 percent or greater probability) that any current bronchial asthma had its clinical onset during active service or is related to any incident of service, to include in-service chronic upper respiratory infections and/or exposure to fumes, gas and smoke related to the Veteran's military occupational specialty. The Veteran's separation examination dated in May 1980 notes that chronic upper respiratory infections for one year. b) Whether it is at least as likely as not (50 percent or greater probability) that any current allergic rhinitis had its clinical onset during active service or is related to any incident of service, to include in-service treatment for hay fever in May 1979, a stuffy nose in May 1980, and chronic upper respiratory infections; and/or exposure to fumes, gas and smoke related to the Veteran's military occupational specialty. The Veteran's separation examination dated in May 1980 notes a history of hay fever and a chronic upper respiratory infection for one year. c) Whether it is at least as likely as not (50 percent or greater probability) any current sleep apnea had its clinical onset during active service or is related to any incident of service, to include the commuted fracture of the nasal bone with a possible slight depression in September 1979, in-service snoring, and/or exposure to fumes, gas and smoke related to the Veteran's military occupational specialty. The need for any additional physical examination is left to the discretion of the examiner(s). A complete rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.