Citation Nr: 21068800 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-13 051 DATE: November 12, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD); to this extent, the appeal is granted. Entitlement to an effective date earlier than January 28, 2016 for the grant of service connection for headaches is denied. REMANDED Entitlement to service connection for COPD, to include as due to exposure to asbestos, is remanded. Entitlement to service connection for breast cancer, to include as due to exposure to asbestos, is remanded. Entitlement to service connection for a right eye cataract is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type 2, and/or a heart disability, is remanded. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to asbestos, is remanded. Entitlement to service connection for neuropathy of the bilateral upper extremities, to include as secondary to diabetes mellitus, type 2, is remanded. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, type 2, is remanded. Entitlement to an initial rating higher than 30 percent for headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Entitlement to service connection for COPD was denied by the RO in a September 2013 rating decision; the Veteran did not complete a substantive appeal or submit new and material evidence within one year. 2. Some of the evidence received since the September 2013 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating a claim for service connection for COPD. 3. The Veteran claimed entitlement to service connection for migraine headaches on a VA Form 21-526EZ received on January 28, 2016. 4. No communication received prior to January 28, 2016 may be interpreted as a formal or informal claim of entitlement to service connection for a headache disability. CONCLUSIONS OF LAW 1. The September 2013 rating decision that denied entitlement to service connection for COPD is final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105 (a), 3.156, 20.1103. 2. The evidence received since the September 2013 rating decision is new and material, and the Veteran's claim for service connection for COPD is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for an effective date earlier than January 28, 2016 for the grant of service connection for headaches are not met. 38 U.S.C. §§ 5110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1960 to February 1963. This matter comes before the Board of Veterans' Appeals (BVA or Board) from September 2013, November 2014, and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2020 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. PETITION TO REOPEN 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for COPD. The Veteran seeks to reopen her claim for entitlement to service connection for COPD. Notwithstanding a determination by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record with respect to this claim reflects that a claim for service connection for COPD was last denied in a rating decision of September 2013. The Veteran did not express timely disagreement or submit new and material evidence within one year and subsequently the rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be reopened if new and material evidence is submitted. In this instance, since the September 2013 rating decision denied the claim on the basis that the evidence did not show any in-service event, disease or injury, the Board finds that new and material evidence would consist of evidence of an event, injury or disease during service. The evidence received since the September 2013 rating decision consists of numerous records and documents. The Veteran submitted statements asserting that her COPD is a result of in-service exposure to asbestos; as noted, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Thus, the Board finds this is evidence of a possible in-service exposure. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for COPD. The Board determines that the claim is reopened. EARLIER EFFECTIVE DATE 2. Entitlement to an effective date earlier than January 28, 2016 for the grant of service connection for headaches. The Veteran seeks entitlement to an effective date earlier than January 28, 2016 for the grant of service connection for headaches. She argues that her headaches had an onset during service and therefore, she is entitled to an effective date earlier than January 2016. See, e.g., April 2016 notice of disagreement. Unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Here, the Veteran was discharged from service in February 1963. She did not raise a claim for entitlement to service connection for headaches within a year from discharge. Rather, the Veteran first raised a service connection claim for headaches in January 2016. Because the Veteran did not apply for service connection for this issue within one year of separation from service, an effective date back to the day following discharge is not possible. Instead, the appropriate effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2). In a VA Form21-526EZ received on January 28, 2016, the Veteran claimed entitlement to service connection for headaches. In April 2016, the Veteran's claim was granted, and an effective date of January 28, 2016 was assigned. In an October 2016 notice of disagreement, the Veteran disagreed with the effective date of the award. VA received the Veteran's original claim of service connection for headaches on January 28, 2016. Her entitlement to service connection preceded her filing of the original claim; consequently, the proper effective date is the date of the Veteran's claim, January 28, 2016. As applicable in this appeal, the Board has also considered whether any evidence of record prior to January 2016 could serve as an informal claim, in order to entitle the Veteran to an effective date earlier than January 2016. In this regard, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran indicates an attempt to apply for service connection for headaches. Unfortunately, there is no evidence of record that indicates an attempt to apply for service connection for this issue prior to January 2016. In sum, the Board finds that the currently assigned effective date of January 28, 2016 is the earliest effective date allowed under the law. The preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND All issues. During the August 2020 Board hearing, the Veteran identified multiple private treatment providers. On remand, these records should be obtained and associated with the file. 3. Entitlement to service connection for COPD, to include as due to exposure to asbestos. 4. Entitlement to service connection for breast cancer, to include as due to exposure to asbestos. 5. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to asbestos. The Veteran asserts her COPD, breast cancer, and diabetes mellitus, type 2, are due to exposure to asbestos while staying in the barracks at Fort Sam Houston. To date, no development has been completed to verify whether the Veteran was exposed to asbestos during service, as the Veteran's exposure to asbestos was determined to be low based purely on her military occupation specialty (MOS). On remand, the RO should attempt to verify the Veteran's exposure to asbestos, based on her assertions that the barracks she stayed in had asbestos. The Board notes that VA medical opinions were obtained as to whether the Veteran's diabetes and breast cancer are at least as likely as not due to exposure to asbestos; however, these opinions were formed based on the level of exposure to asbestos determined solely by her MOS. If exposure to asbestos from the Veteran's barracks is verified, addendum medical opinions should be obtained regarding a possible etiologically relationship between exposure to asbestos and the claimed disabilities. Additionally, the Board notes that service treatment records document the Veteran had in-service upper respiratory infections. A February 1965 chest x-ray revealed a moderate increase in bronchovascular trunk markings on the right side and questionable mild peri-bronchial infiltration. To date, the Veteran has not yet been afforded a VA examination for her claimed COPD. On remand, the Veteran should be afforded a VA examination and a medical opinion should be obtained. 6. Entitlement to service connection for a right eye cataract. The Veteran asserts her right eye cataract is due to her time in service. The Board notes that service treatment records document multiple eye complaints during service. To date, the Veteran has not yet been afforded a VA examination for her claimed disability. On remand, the Veteran should be afforded a VA examination and a medical opinion should be obtained. 7. Entitlement to service connection for a heart disability. 8. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type 2, and/or a heart disability. The Veteran asserts she has a heart disability as a result of strenuous physical training during service. To date, the Veteran has not yet been afforded a VA examination for her claimed heart disability. On remand, the Veteran should be afforded a VA examination and a medical opinion should be obtained. She also asserts that her hypertension is due to stress during service or is secondary to a heart disability and/or her diabetes mellitus, type 2. On remand, a medical opinion should be obtained. 9. Entitlement to service connection for neuropathy of the bilateral upper extremities, to include as secondary to diabetes mellitus, type 2. 10. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, type 2. The Veteran asserts she has neuropathy of the bilateral upper and lower extremities on a direct basis, arguing several theories of entitlement. The Veteran asserts that strenuous physical training during service caused her neuropathy of the bilateral upper and lower extremities. Additionally, she asserts the repetitive work and long periods of standing while working in the mailroom during service caused the neuropathy of the bilateral upper and lower extremities Finally, she asserts that the neuropathy of the bilateral upper and lower extremities is secondary to her diabetes. To date, medical opinions have not been obtained that address the Veteran's theories of entitlement. On remand, medical opinions should be obtained. 11. Entitlement to an initial rating higher than 30 percent for headaches. The Veteran seeks entitlement to an initial rating higher than 30 percent for migraines. The Veteran was afforded a VA examination in March 2021; however, the RO did not subsequently issue a supplemental statement of the case. Additionally, as noted, additional treatment records have been identified and should be obtained on remand. 12. Entitlement to a TDIU. The Board finds that the issue of entitlement to a TDIU is inextricably intertwined with additional claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). Therefore, a decision on this claim is being deferred pending completion of the development ordered on remand to avoid piecemeal adjudication. The matters are REMANDED for the following action: 1. Request that the Veteran complete authorizations for VA to obtain all private treatment records, to include, but not limited to, those identified during the August 2020 Board hearing: Dr. M., Dr. B., Forrest City Arkansas Baptist Hospital, and Gwinnett Medical Hospital. Inform the Veteran that she can submit the evidence herself. If any requested records cannot be obtained, inform the Veteran of the results of the requests for records. 2. Conduct appropriate development to verify any potential exposure to asbestos during the Veteran's service, to include seeking information from appropriate sources as to whether the Veteran was exposed to asbestos while staying in the barracks at Fort Sam Houston. 3. If exposure to asbestos is verified, obtain addendum opinions for the Veteran's claimed breast cancer and diabetes mellitus, type 2. After a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that: a) the Veteran's breast cancer began in service, was caused by service, or is otherwise related to military service, to include as due to exposure to asbestos during service. b) the Veteran's diabetes mellitus, type 2, began in service, was caused by service, or is otherwise related to military service, to include as due to exposure to asbestos during service. 4. Afford the Veteran a VA examination for her claimed COPD. *The Board notes that given the Veteran's physical impairments/cognitive status, special accommodations (such as examination via home visit, videoconference, or by telephone) may have to be made in order to complete an examination, and solely a record review and opinion by an examiner, in the absence of a physical examination, may have to be conducted. Scheduling should be coordinated with the Veteran's current caretaker to determine the best way in which to ensure this examination/medical opinion is completed. The Veteran's claims folder must be reviewed by the examiner. The examiner is asked to provide an opinion on the following question: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's COPD began in or is causally or etiologically related to her active service, to include as due to exposure to asbestos? In so opining, please consider and discuss the service treatment records documenting upper respiratory infections and the February 1965 chest x-ray that revealed a moderate increase in bronchovascular trunk markings on the right side and questionable mild peri-bronchial infiltration. A detailed rationale for the opinions must be provided. 5. Afford the Veteran a VA examination for her claimed right eye cataract. *The Board notes that given the Veteran's physical impairments/cognitive status, special accommodations (such as examination via home visit, videoconference, or by telephone) may have to be made in order to complete an examination, and solely a record review and opinion by an examiner, in the absence of a physical examination, may have to be conducted. Scheduling should be coordinated with the Veteran's current caretaker to determine the best way in which to ensure this examination/medical opinion is completed. The Veteran's claims folder must be reviewed by the examiner. The examiner is asked to provide an opinion on the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's right eye cataract began in or is causally or etiologically related to her active service; or is proximately due to OR aggravated (beyond a natural progression) by her service-connected headaches? In so opining please consider and discuss the service treatment records documenting vision complaints, eye complaints, and headaches (see, e.g., February 1961 complaints of "eyes tear when doing much visual work;" March 1962 Report of Medical History noting occasional blurring vision on reading; January 1963 ophthalmologic consultation with complaints of burning eyes; and January 1963 note that she experiences headaches most after using her eyes.) A detailed rationale for the opinion must be provided. 6. Afford the Veteran a VA examination for her claimed heart disability. *The Board notes that given the Veteran's physical impairments/cognitive status, special accommodations (such as examination via home visit, videoconference, or by telephone) may have to be made in order to complete an examination, and solely a record review and opinion by an examiner, in the absence of a physical examination, may have to be conducted. Scheduling should be coordinated with the Veteran's current caretaker to determine the best way in which to ensure this examination/medical opinion is completed. The Veteran's claims folder must be reviewed by the examiner. The examiner is asked to provide an opinion on the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's heart disability began in or is causally or etiologically related to her active service, to include the Veteran's asserted theory that she has a heart disability due to strenuous physical training completed during service. A detailed rationale for the opinion must be provided. 7. Afford the Veteran a VA examination for her hypertension. *The Board notes that given the Veteran's physical impairments/cognitive status, special accommodations (such as examination via home visit, videoconference, or by telephone) may have to be made in order to complete an examination, and solely a record review and opinion by an examiner, in the absence of a physical examination, may have to be conducted. Scheduling should be coordinated with the Veteran's current caretaker to determine the best way in which to ensure this examination/medical opinion is completed. The Veteran's claims folder must be reviewed by the examiner. The examiner is asked to provide an opinion on the following questions: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension had an onset during service or within one year of discharge from service or is otherwise causally or etiologically due to her active service, to include the Veteran's asserted theory that stress she experienced during service caused her hypertension. b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is proximately due to or aggravated (beyond a natural progression) by her heart disorder or diabetes mellitus, type 2. A detailed rationale for the opinion must be provided. 8. Obtain an addendum opinion for the Veteran's neuropathy of the bilateral upper and lower extremities. If deemed necessary by the examiner, afford the Veteran a VA examination. *The Board notes that given the Veteran's physical impairments/cognitive status, special accommodations (such as examination via home visit, videoconference, or by telephone) may have to be made in order to complete an examination, and solely a record review and opinion by an examiner, in the absence of a physical examination, may have to be conducted. Scheduling should be coordinated with the Veteran's current caretaker to determine the best way in which to ensure this examination/medical opinion is completed. The Veteran's claims folder must be reviewed by the examiner. The examiner is asked to provide an opinion on the following questions: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy of the bilateral upper extremities began in or is causally or etiologically due to her active service, to include the Veteran's asserted theory that her neuropathy is due to strenuous physical training during service and/or repetitive use and standing for long periods in the mailroom during service; b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy of the bilateral lower extremities began in or is causally or etiologically related to her active service, to include the Veteran's asserted theory that her neuropathy is due to strenuous physical training during service and/or repetitive use and standing for long periods in the mailroom during service; c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy of the bilateral upper extremities is proximately due to or aggravated (beyond a natural progression) by her diabetes mellitus, type 2; d) Is it at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy of the bilateral lower extremities is proximately due to or aggravated by her diabetes mellitus, type 2. A detailed rationale for the opinions must be provided. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.