Citation Nr: 21069091 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-18 978A DATE: November 17, 2021 ORDER The application to reopen the issue of entitlement to service connection for anxiety now claimed as chronic schizophrenia/depression is granted. The application to reopen the issue of entitlement to service connection for asthma now claimed as chronic pulmonary syndrome is granted. REMANDED Service connection for anxiety now claimed as chronic schizophrenia/depression is remanded. Service connection for asthma now claimed as chronic pulmonary syndrome is remanded. Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a December 2011 rating decision, the Agency of Original Jurisdiction denied service connection for anxiety and emphysema claimed as asthma. The Veteran did not express disagreement or submit new and material evidence within one year. 2. Evidence received since the December 2011 rating decision was not previously submitted to agency decision-makers and relates to an unestablished fact necessary to substantiate the claims for service connection for anxiety (now claimed as chronic schizophrenia/depression) and emphysema claimed as asthma (now claimed as chronic pulmonary syndrome). CONCLUSIONS OF LAW 1. The December 2011 rating decision by the Agency of Original Jurisdiction that denied entitlement to service connection for anxiety and emphysema claimed as asthma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen the claims of service connection for anxiety (now claimed as chronic schizophrenia/depression) and emphysema claimed as asthma (now claimed as chronic pulmonary syndrome). 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 January 1966 to January 1968 to include service in Vietnam. He appeals a September 2014 rating decision. His military occupational specialty was equipment store specialist. He claims these disorders are related to service. In June 2021, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge (VLJ). The VLJ clarified the issues on appeal; clarified the concept of service connection; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claims, inquired as to the existence of potential outstanding records and granted the Veteran an additional 90 days following the hearing to submit evidence. No additional evidence has been received. The actions of the VLJ comply with 38 C.F.R. § 3.103. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and considered 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). The Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of service connection for anxiety and emphysema claimed as asthma in December 2011 rating decision, finding (1) service medical records are silent as to treatment or a diagnosis of either condition during military service, (2) the conditions first manifested years after service and (3) there was no evidence of treatment or chronicity shortly after service. Also, as to asthma, this was found to not be related to treatment for sinusitis during service. The Veteran was provided notice of this decision 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, 20.1103. The evidence received since the December 2011 rating decision includes evidence that is both new and material to each claim. See 38 C.F.R. § 3.156. For example, the Veteran and his wife testified that multiple doctors have told him these conditions are related to service. Also, Carlos E. Mora Quesada, M.D., Internal Medicine, noted in March 2020 that the Veteran has multiple conditions, to include bronchial asthma and schizophrenia, and also observed there was anxiety, nervousness, irritability, impaired impulse control and panic attacks. Dr. M.Q. opined that the Veteran's diseases, including sensorial, cardiopulmonary, metabolics and musculoskeletal diseases with psychiatric disorders are more probable than not secondary to his military service performance. Thus, nexus opinions supporting the claims have been received. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened and will be considered on the merits. REASONS FOR REMAND 1. Service connection for anxiety now claimed as chronic schizophrenia/depression is remanded. 2. Service connection for asthma now claimed as chronic pulmonary syndrome is remanded. The Board has herein granted the Veteran's application to reopen the claims of service connection for anxiety now claimed as chronic schizophrenia/depression and asthma now claimed as chronic pulmonary syndrome. When the Board reopens a claim, after the AOJ has denied reopening that same claim, the matter generally must be returned to the AOJ for consideration of the merits. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). Additionally, remand is warranted to obtain appropriate VA medical opinions. Here, we note that the Veteran reported at the hearing that he has been told his conditions on appeal are related to service by multiple doctors. We also note his earlier assertion that these two conditions are related to exposure to herbicides in Vietnam. However, he declined to provide any supportive medical opinions in the 90 days following the hearing. Nonetheless, Dr. M.Q.'s aforementioned 2020 opinion, while admittedly vague in terms of rationale, is favorable. They simply cite to (1) in-service treatment records and (2) VA San Juan Medical center Outpatient treatment records. Review of the evidence Dr. M.Q. relied on does not shed light on any implicit rationale for a psychiatric condition or emphysema being related to the Veteran's service. Here, we note that the AOJ did not consider this opinion with regard to these claims, as the SOC was dated in 2016. Additionally, earlier-dated relevant VA examinations with negative etiology opinions are not fully dispositive as to current disability. A July 2018 PTSD examination failed to diagnose PTSD and instead found Psychotic disorder NOS with depression 'not incurred during service and that is not related to fear of military hostility or terrorist activity'. The negative rationale included that all STR'S were silent for mental health diagnosis or treatment during service, the records show mental health treatment later on at VAMC with diagnosis of Alcohol dependence, Schizophrenia, psychotic Disorder NOS. The examiner explained, all of these were 'posterior' to the service, so it is difficult to prove that it is a result of the military exposure, since he has a chronic alcohol use history and it is difficult to determine if the psychosis were due to severe depression or a result of alcohol induced psychosis. A November 2011 VA PTSD examination found no PTSD, only 'dyssomnia' which was not noted to be related to service. The Veteran complained of sleep difficulties for a 'long time.' A November 2011 VA examination addressing emphysema found the condition was related to smoking and not sinusitis in service. Relevant to the psychiatric claim, VA treatment records throughout the appeal reflect ongoing diagnoses of schizophrenia since 2001, along with depressive disorder and findings of anxiety controlled by medication. Relevant to the emphysema claim, there are findings of emphysema, chronic obstructive pulmonary disease (COPD) and asthma. In light of the above, Dr. M.Q.'s opinion is not sufficient to grant service connection at this time. However, Dr. M.Q.'s remarks and other evidence of record address theories of entitlement for which the Board does not have sufficient competent medical evidence to decide the claims. See 38 C.F.R. § 3.159 (c)(4). The relatively remote VA examinations are not sufficiently dispositive as to the current disabilities. Accordingly, remand is warranted to obtain a VA medical opinion or telehealth examination, as to the etiology of any current psychiatric disorder and asthma/chronic pulmonary disorder. The Board notes that while he testified at his June 2021 hearing, the recent medical record is replete with reference to the fact that the Veteran is currently bedridden. He reported in October 2020 that as he is bedridden and unable to attend examination unless an examiner is sent to him. Under the circumstances, the Board finds that a VA telehealth examination or medical opinion is appropriate. 3. Service connection for sleep apnea is remanded. Dr. M.Q.'s opinion also indicates that sleep apnea is related to service. While Dr. M.Q.'s opinion is not sufficient to grant service connection at this time for the aforementioned reasons, their relevant remarks and the hearing testimony are sufficient to persuade the Board that a VA telehealth examination or medical opinion, as yet unobtained, is warranted as the Board does not have sufficient competent medical evidence to decide the claim at present. See 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA telehealth examination by an appropriate clinician to determine the nature and etiology of any psychiatric disability, to include anxiety now claimed as chronic schizophrenia/depression. At the examiner's discretion, a VA medical opinion may be obtained instead. The examiner must opine whether any psychiatric disability, to include anxiety now claimed as chronic schizophrenia/depression it is at least as likely as not related to an in-service injury or disease, to include presumed exposure to herbicides agents. The examiner should identify each psychiatric disability the Veteran has currently or has had during the pendency of this appeal. For each psychiatric disability, the examiner must opine whether it is at least as likely as not related to an in-service injury or disease. 2. Schedule the Veteran for a VA telehealth examination by an appropriate clinician to determine the nature and etiology of any asthma now claimed as chronic pulmonary syndrome. At the examiner's discretion, a VA medical opinion may be obtained instead. The examiner must opine whether any asthma now claimed as chronic pulmonary syndrome is at least as likely as not related to an in-service injury or disease, to include presumed exposure to herbicides agents. The examiner should identify each relevant disability the Veteran has currently or has had during the pendency of this appeal. For each such disability, the examiner must opine whether it is at least as likely as not related to an in-service injury or disease to include presumed exposure to herbicides agents or is at least as likely as not (1) proximately due to service connected disease or injury or (2) aggravated by service connected disease or injury. 3. Schedule the Veteran for a VA telehealth examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. At the examiner's discretion, a VA medical opinion may be obtained instead. The examiner must opine whether his sleep apnea is at least as likely as not related to service. The examiner should provide a rationale for any stated opinion. 4. After performing any additional development deemed necessary, the AOJ should adjudicate the Veteran's claims on the merits. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.