Citation Nr: 21063562 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-55 278 DATE: October 14, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a pulmonary embolism (to include being claimed as fainting spells), and to that extent only the claim is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for systemic lupus (to include a claim for arthritis), and to that extent only the claim is granted. REMANDED Entitlement to service connection for a bilateral foot disability, to include pes planus, is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for systemic lupus is remanded. Entitlement to service connection for arthritis, to include rheumatoid arthritis, is remanded. Entitlement to service connection for a respiratory or pulmonary disability, to include asthma, pulmonary embolism, fainting spells, and chronic cough, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The February 2010 rating decision that denied service connection for pulmonary embolism (to include claim for fainting spells) and service connection for systemic lupus (to include claim for arthritis) is final. 2. The evidence received since the February 2010 rating decision, by itself, or in conjunction with previously considered evidence, is not cumulative or redundant of evidence previously of record and relates to an unestablished fact necessary to substantiate the claims for service connection for pulmonary embolism (to include claim for fainting spells) and service connection for systemic lupus (to include claim for arthritis). CONCLUSIONS OF LAW 1. The February 2010 rating decision which denied service connection for pulmonary embolism (to include claim for fainting spells) and service connection for systemic lupus (to include claim for arthritis) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received after the February 2010 rating decision is new and material, and the claims for service connection for pulmonary embolism (to include claim for fainting spells) and service connection for systemic lupus (to include claim for arthritis) are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to November 1984. The Veteran has additional duty with the Naval Reserve This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2010 and May 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In December 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. Service Connection 1. New and material evidence has been received to reopen a claim of entitlement to service connection for systemic lupus (to include claim for arthritis). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for pulmonary embolism (to include claim for fainting spells). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided on the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of her claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). 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 (2010). Moreover, in determining whether the low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. The Board has thoroughly reviewed all the evidence of record. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Department of Veterans Affairs (VA) Regional Office (RO) considered and denied the claims for service connection for pulmonary embolism (to include claim for fainting spells) and service connection for systemic lupus (to include claim for arthritis) in a February 2010 rating decision. At that time, the evidence of record included numerous lay statements from the Veteran, medical treatment records, and Navy reserve records. The February 2010 rating decision denied service connection for pulmonary embolism (to include claim for fainting spells) because the evidence of record did not show the disability began in Military service or was cause by some event or experience in service. The February 2010 rating decision denied service connection for systemic lupus (to include claim for arthritis), in part, because treatment records did not show the Veteran as being diagnosed with or treated for systemic lupus or arthritis. The Veteran was notified of the February 2010 rating decision and her appellate rights. The Veteran did not submit a notice of disagreement or new and material evidence within one year of the notification. The February 2010 rating decision is now final. 38 U.S.C. § 7105; 38 C.F.R. § § 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103. The evidence received and submitted into the record since the February 2010 rating decision includes additional service medical records, VA records; and lay statements from the Veteran, to include hearing testimony. As it pertains to the pulmonary embolism claim, the Veteran has now offered a new theory of entitlement. The Veteran now asserts that this condition is secondary to a bilateral foot condition. The credibility of the newly submitted evidence is presumed in determining whether the new evidence is material. Justus v. Principi, 3 Vet. App. 510 (1992). The Board notes that there is evidence of record that suggests the Veteran's pulmonary embolism is the result of foot surgery. Additionally, there is now medical evidence of record showing the Veteran as being diagnosed with lupus. The Board finds that the evidence added to the record since the February 2010 rating decision raises a reasonable possibility of substantiating the claims. Accordingly, the additional evidence is material. As new and material evidence has been received, the claims for service connection for pulmonary embolism (to include claim for fainting spells) and service connection for systemic lupus (to include claim for arthritis) are reopened. REASONS FOR REMAND 1. Entitlement to service connection for systemic lupus is remanded. 2. Entitlement to service connection for a recurrent bilateral foot disability, to include pes planus, is remanded. 3. Entitlement to service connection for arthritis, to include rheumatoid arthritis, is remanded. 4. Entitlement to service connection for a lumbar spine disability is remanded. 5. Entitlement to service connection for a respiratory or pulmonary disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of these claims for service connection. The Veteran contends that the currently diagnosed disabilities are the result of or exacerbated by the physical nature of being in service, with constant marching, running, walking, and other strenuous activity. Post-service treatment records show that the Veteran has been diagnosed with lupus, rheumatoid arthritis, and pes planus. Prior to Agency of Original Jurisdiction adjudication in May 2015, the record shows diagnoses and alleged potential causative events in service. However, the Veteran has not been provided a VA examination which addresses any relationship between the claimed disabilities and service. That is a pre-decisional duty to assist error. Therefore, the Board finds that a VA opinion to determine any relationship between the claimed disabilities and active service should be scheduled. The Veteran is notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The Board finds that the issue of entitlement to service connection service connection for a pulmonary embolism and service connection for a lumbar spine disability are inextricably intertwined with the issue of entitlement to service connection for a bilateral foot disability. Specifically, the Veteran asserts that a pulmonary embolism is secondary to treatment for foot disabilities. The Veteran also asserts that a back disability is secondary to or aggravated by foot disabilities. Thus, because the issue of entitlement to service connection for a bilateral foot disability will have a substantial effect on the merits of the claims for service connection for a pulmonary embolism and lumbar spine disability, they are inextricably intertwined. Since that claim is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that derivative claim prior to the determination of the other claim. Therefore, the adjudication of the inguinal hernia claim must be deferred pending resolution of the bilateral foot claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a respiratory condition, to include asthma and chronic cough. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that asthma and breathing problems were aggravated by asbestos exposure while aboard the USS Frank Cable during service. Asbestos exposure has not been conceded by VA. Prior to Agency of Original Jurisdiction adjudication in May 2015, the record shows a preexisting condition asthma and claimed events in service. However, the Veteran has not been provided a VA examination which addresses any relationship between the claimed disability and service. That is a pre-decisional duty to assist error. Therefore, the Board finds that a VA opinion to determine any relationship between the claimed disability and active service should be scheduled. Additionally, in light of the evidence and arguments of record, the Board finds that an opinion, report, or other evidence from the appropriate records depositories is needed to address the issue of whether the Veteran was exposed to asbestos during active service, and whether any resulting respiratory or pulmonary disability resulted from any asbestos exposure during service. 6. Entitlement to individual unemployability (TDIU) is remanded. Because a decision on the remanded issues for service connection could significantly impact a decision on the issue of entitlement TDIU, the Board finds that the issues are inextricably intertwined. Because the claims are being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that TDIU claim prior to the determination of the other claim. Therefore, the adjudication of the TDIU claim must be deferred pending resolution of that claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Request the Defense Personnel Records Information Retrieval System (DPRIS) or another appropriate Federal department, make a determination as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran was exposed to asbestos during active service. Specifically, the researcher is asked to determine if the Veteran was exposed to asbestos while aboard the USS Frank Cable. The relevant time periods include August 1984 to November 1984. A copy of any requests sent and any reply, to include any negative reply, should be associated with the claims file. If the event is not verified, an official determination so indicating should be entered into the record. If any requested Federal records cannot be obtained, document in a memorandum of unavailability to the file the attempts that were made to obtain them and explain why additional attempts to obtain the records would be futile. Provide to the Veteran and representative a written notification of the specific records that could not be obtained, explaining the efforts VA has made to obtain this evidence, and describing any further action VA will take to develop the claim. The Veteran and representative should be allowed an opportunity to respond. 2. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 3. Then, schedule the Veteran for a VA musculoskeletal examination to diagnose and determine the nature and etiology of the claimed musculoskeletal disabilities. The examiner must review the claims file, including this Remand and the Veteran's lay statements, including hearing testimony, and should indicate review of the file in the report. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner should diagnose all foot and back disabilities found or shown in the record during the pendency of the claim, to include pain resulting in a functional loss of either foot or the lumbar spine. For each diagnosed left or right foot and back disability that is found at entrance to service, the examiner should opine whether it is clear and unmistakable that the disability was not aggravated (worsened beyond the natural progress of the disease) during service. For each diagnosed left or right foot and back disability that is found to not have clearly and unmistakably preexisted entrance to active service, to include any pain resulting in functional loss, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) the left or right foot or back disability is etiologically related to active service or any event, disease, or injury during service, including whether any disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, or (3) manifested as arthritis within one year after separation from service. Please cite to any evidence to support a finding of foot or back arthritis within one year following separation from service. The examiner is explicitly asked to discuss the significance, if any, of the physical nature of being in service on the Veteran's present disabilities. A clearly stated rationale for each opinion should be provided and must not be based on the lack of an in-service record of the claimed disability. If the Veteran is found to have a foot disability related to service, the examiner should opine whether it is at least as likely as not (50 percent or greater disability) that the claimed back disability was caused by the foot disability or treatment for the foot disability or gait disturbance due to a foot disability, or has been aggravated (increased in severity beyond the natural progress of the disorder) by the foot disability, or any gait disturbance due to a foot disability. In writing the report, the examiner should refer to any service medical records, indicating any treatment in service for any of the claimed disabilities. 4. Scheduled the Veteran for a VA examination to determine the nature and etiology of a pulmonary embolism. The examiner must review the claims file and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that a pulmonary embolism, and any associated residuals, is etiologically related to active service or any event, disease, or injury during active service, including whether the disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability or treatment for any service-connected disability, to specifically include foot surgery, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to specifically include foot surgery. (5) If the Veteran is found to have been exposed to asbestos, or any other environmental or chemical hazard while in-service, the examiner should opine whether the pulmonary embolism or any respiratory disability is at least as likely as not (50 percent or greater probability) due to the exposure in service. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of lupus and rheumatoid arthritis. The examiner must review the claims file, to include this Remand, and should note that review in the report. The examiner should provide clearly stated rationales with references to the record, diagnostic tests, and medical literature for each opinion. For both lupus and rheumatoid arthritis, (1) the examiner must opine whether the claimed condition is a congenital defect, a developmental defect, or a hereditary disease. (2) For each congenital, developmental, or hereditary defect, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that each congenital, developmental, or hereditary defect was NOT aggravated (increased in severity beyond the natural progress of the disorder) by service or a service- connected disability. (3) If the examiner finds that neither is a congenital, developmental, or hereditary defect, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that each disability is related to any event, injury, or disease in service. The examiner is explicitly asked to discuss the significance, if any, of the physical nature of being in service (ordinary wear and tear) on the Veteran's lupus and rheumatoid arthritis. A clearly stated rationale for each opinion should be provided and must not be based on the lack of an in-service record of the claimed disability. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed respiratory disability. The examiner should provide the following opinions, based on the record: (a) Did a respiratory disability clearly and unmistakably (medically undebatable) preexist entrance to active service? The examiner should state what evidence supports that opinion. (b) If a respiratory disability is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that a preexisting respiratory disability was not aggravated (worsened beyond the natural progress of the disease) during service. (c) For any respiratory disability that is found to not clearly and unmistakably have preexisted entrance to active service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the respiratory disability is etiologically related to active service or any event, disease, or injury during service, including whether a respiratory disability (1) began during active service, or (2) was noted during service with continuity of the same symptomatology since service. (3) If the Veteran is found to have been exposed to asbestos, or any other environmental or chemical hazard while in-service, the examiner should opine whether any respiratory disability is at least as likely as not (50 percent or greater probability) due to the exposure in service. A clearly stated rationale for each opinion offered must be provided and must not be based solely on the lack of an in-service record of the claimed disability. The examiner is also asked to comment on the impact of the service-connected disabilities on employment and activities of daily life. The examiner should opine whether it was at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, which was consistent with education and training. If the Veteran is found to be capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would have been necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.