Citation Nr: A21016813 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 210812-178010 DATE: October 15, 2021 ORDER Readjudication of the claim for service connection for hypogammaglobulinemia is warranted. REMANDED Entitlement to service connection for hypogammaglobulinemia is remanded. FINDING OF FACT New evidence was received after the April 1970 denial that is relevant to the issue of entitlement to service connection for hypogammaglobulinemia. CONCLUSION OF LAW The criteria for readjudicating the claim for entitlement to service connection for hypogammaglobulinemia are met. 38 C.F.R. §§ 3.156(d), 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to September 1969. The Veteran has qualifying service in the Republic of Vietnam during the Vietnam Era. His exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). In April 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for hypogammaglobulinemia most recently addressed in an April 1970 rating decision. In July 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Whether new and relevant evidence was presented to warrant readjudicating the claim for service connection for hypogammaglobulinemia. The Veteran, and his representative, contends that he submitted evidence that is new and relevant to the claim of entitlement to service connection for hypogammaglobulinemia, and warrants readjudication of the issue. A claimant may continuously pursue a claim or issue by filing a supplemental claim following notice of a decision by the AOJ or the Board. 38 C.F.R. § 3.2500(c). If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all the evidence of record. 38 C.F.R. § 3.2501. New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(2). If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. Id. An April 1970 rating decision denied the claim for service connection for hypogammaglobulinemia because the condition is considered a congenital or developmental abnormality. A May 1970 VA letter notified the Veteran of this decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the April 1970 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In April 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for hypogammaglobulinemia most recently addressed in an April 1970 rating decision. A July 2021rating decision found that new and relevant evidence had not been received. This appeal arises from that decision. The Board finds that the record contains new evidence after the prior final disallowance of the Veteran's claim that is relevant to his claim. In this regard, in May 2021, the Veteran submitted an excerpt of a medical article finding: The presenting feature of hypogammaglobulinemia is usually a clinical history of recurrent, chronic, or atypical infections. These infections include but are not limited to: bronchitis, ear infections, meningitis, pneumonia, sinus infections, and skin infections. As such, this evidence tends to show an onset of hypogammaglobulinemia while in service and tends to prove a matter at issue in the claim. It is noted that in deciding whether any new and relevant evidence has been submitted sufficient to readjudicate the claim, the Board will presume, to that extent, that the evidence is credible unless it is inherently incredible or beyond the Veteran's competence as a lay person. This evidence, further, was received after the April 1970 prior denial and is relevant to the issue. Accordingly, as new and relevant evidence has been received, the application to readjudicate the previously denied claim is granted. REASONS FOR REMAND Entitlement to service connection for hypogammaglobulinemia is remanded. Given that new and relevant had been received to readjudicate the claim for service connection for hypogammaglobulinemia and that the AOJ has not considered the issue on the merits, the Board finds that remand is necessary. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Further, the Board observes that the Veteran, and his representative, contend that his hypogammaglobulinemia is related to his service. In this regard, the Veteran argues that it stems from "the stress of combat, the harsh winter training condition, the lack of sanitation while in field operation." See Correspondence (May 2021). Next, the Board observes that the Veteran submitted a September 2016 Board decision finding a veteran's common variable immune deficiency as related to in-service exposure to herbicide agents. Although the Veteran or his representative has not explicitly argued that his hypogammaglobulinemia stems from in-service exposure to herbicide agents, the alternative theory of entitlement for this claim has been raised by the record and must be considered by the VA. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). Here, the July 2021 rating decision found that the Veteran has a current hypogammaglobulinemia disability. This is a favorable finding by the AOJ. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Hence, as there was new and relevant at the time of the July 2021 rating decision on appeal and VA's duty to assist was triggered (i.e. to develop the raised theories of entitlement) at that time given this, the Board finds that remand is also necessary to correct a duty to assist error that occurred prior to the July 2021 decision on appeal. See 38 C.F.R. § 20.802. To better explain, as an initial matter, the Board notes that hypogammaglobulinemia may be congenital, sex-linked, and/or part of a combined immunodeficiency state. It may also be acquired, as in multiple myeloma, immunoglobulin light chain (AL) amyloidosis, chronic lymphocytic leukemia, lymphoma, or the nephrotic syndrome. S. Vincent Rajkumar, MD, Laboratory methods for analyzing monoclonal proteins, UPTODATE, https://www.uptodate.com/contents/laboratory-methods-for-analyzing-monoclonal-proteins?search=hypogammaglobulinemia%20and%20congential%20and%20acquired%20&source=search_result&selectedTitle=2~150&usage_type=default&display_rank=2 (last updated June 12, 2020). (Emphasis added). In this instance, the record reflects a diagnosis for hypogammaglobulinemia. Next, the record shows in-service treatment for pneumonia. See STR (March 1968). However, VA did not obtain an examination or medical opinion in this matter, and VA's duty to obtain a VA medical opinion and examination was triggered prior to the July 2021 decision on appeal. McLendon v. Nicholson, 20 Vet. App. 81-82 (2006) (evidence needed to trigger VA's duty to furnish an examination is low). Further, although the Veteran's hypogammaglobulinemia may be congenital, the evidence of record is inadequate as it does not contain a medical opinion on whether his hypogammaglobulinemia constitutes a congenital "disease process," or a congenital "defect or abnormality" within the definition of those terms. It is noted that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c); Terry v. Principi, 340 F.3d 13784 (Fed. Cir. 2003). Service connection may be granted for congenital diseases, as opposed to congenital defects. 38 C.F.R. § 3.303(c); VAOPGCPREC 67-90 (1990), 55 Fed. Reg. 43253 (1990); VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45711 (1990). VA regulations specifically prohibit service connection for congenital defects unless the defect was subjected to a superimposed disease or injury during service which created additional disability. If a defect is subject to superimposed disease or injury, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45711 (1990). Accordingly, the Board finds that remand is required. See Hickson, supra. See also 38 C.F.R. § 20.802. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his hypogammaglobulinemia. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with hypogammaglobulinemia. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: Preexisting Congenital Disability (a) Whether the Veteran's hypogammaglobulinemia clearly and unmistakably (undebatable) preexisted the Veteran's service. Explain. (b) If so, clarify whether it constitutes a congenital "disease" or "defect." Note: A disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. Explain. (c) If the hypogammaglobulinemia is identified as a congenital "defect," opine on whether it is at least as likely as not that there was any superimposed injury or disease in service which resulted in additional disability. Consider and expressly address in-service exposure to herbicide agents and in-service treatment for pneumonia. Explain. (d) If the hypogammaglobulinemia is identified as a congenital "disease," opine on whether it was clearly and unmistakably not aggravated by service or whether it is clear and unmistakable that any increase was due to the natural progress. Consider and expressly address in-service exposure to herbicide agents and in-service treatment for pneumonia. Explain. Non-Preexisting Disability (e) If the Veteran's hypogammaglobulinemia is found not to have preexisted service, opine on whether it at least as likely as not (1) had its onset in service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's contentions that it stems from service, to include in-service exposure to herbicide agents and in-service treatment for pneumonia. Explain. 2. Following any development deemed necessary to meet VA's duty to assist, readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.