Citation Nr: 21069266 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-43 705 DATE: November 18, 2021 ORDER New and material evidence has been received to reopen a previously denied claim for entitlement to service connection for tuberculosis. REMANDED Entitlement to service connection for a respiratory condition is remanded. FINDING OF FACT Service connection for tuberculosis was last denied in an unappealed May 2010 rating decision; evidence received since that rating decision is new and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria to reopen the claim for entitlement to service connection for tuberculosis have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to February 1989 and from January 2004 to March 2005, with additional National Guard service. He had service in Southwest Asia during the Persian Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran's claims file. The Veteran also submitted additional evidence after his hearing. Section 501 of the Camp Lejeune Act of 2012 provides an automatic waiver of evidence submitted by a veteran or his or her representative with or after a Substantive Appeal received on or after February 2, 2013. The Veteran's VA Form 9 was received in August 2018. Accordingly, the Board may review this evidence in the first instance. See 38 U.S.C. § 20.1305. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to tuberculosis. Service connection for tuberculosis was denied in an unappealed May 2010 rating decision as the RO determined that while the Veteran's service treatment records showed a positive reaction to the purified protein derivative (PPD) skin test, that finding was considered a clinical finding and not a disability subject to VA disability compensation. In other words, the claim was denied for lack of a current disability, as he did not have diagnosis of active tuberculosis or a diagnosed pulmonary disability. New and material evidence was not received within a year of notice of the decision. See 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of the Veteran. 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 and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In July 2016, VA received the Veteran's intent to file a claim form, and one month later, his petition to reopen the claim for service connection for tuberculosis was also received. After review, the Board finds that new and material evidence sufficient to reopen this claim has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The evidence received since the last final denial includes additional VA treatment records, his lay contentions, a 2020 referral order from Dr. R.L. based on 'abnormal results of pulmonary function studies,' a 2020 private spirometry test result, an August 2020 Board hearing transcript containing testimony of the Veteran discussing his symptoms since the positive PPD skin test, a July 2015 e-mail discussing work accommodations for respirator usage restrictions based on a spirometry examination report from a potential employer, and a June 2015 rescission of offer letter from a potential employer, as reasonable accommodations based on his physical examination results were unavailable. Some of the evidence is new, as it was not previously considered by the RO, and it is material, as it relates directly to the element not previously established a current disability. In particular, the Veteran's May 2018 substantive appeal (VA Form 9) shows he reported that his breathing capacity has deteriorated since service. He noted difficulty holding his breath for long periods or running long distances, that he has allergies and get frequent colds, and his chest hurts. Moreover, the 2015 e-mail and rescission of offer letter from a potential employer, coupled with the 2020 Dr. R.L. referral order and private spirometry test result raise a reasonable possibility of substantiating the claim, as a potential functional impairment of earning capacity possibility is raised. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (functional impairment of earning capacity may establish the presence of a disability). The new evidence is also material as it addresses a previously unestablished element- a current disability. See Shade, 24 Vet. App. at 117-18. In addition, at the hearing before the undersigned, the Veteran's representative raised a new theory of service connection, based on the Veteran's Gulf War service, which was not previously considered. For these reasons, new and material evidence has been received, and the claim is reopened. REASONS FOR REMAND Entitlement to service connection for a respiratory condition is remanded. The Veteran seeks service connection for a respiratory disorder due to service, to include as a result of a positive PPD skin test in February 2005 during service. See Hearing Transcript, page 2. He testified that he currently takes medication for his respiratory condition and has a 'breathing treatment' every night. See id. at page 5. The Veteran also testified to experiencing intermittent shortness of breath, fluid build-up in his lungs, and some coughing since returning from service in Southwest Asia. See id. at page 9. On the Veteran's May 2018 VA Form 9, he reported that his breathing capacity has deteriorated since service. He noted difficulty holding his breath for long periods or running long distances, that he has allergies and get frequent colds, and his chest hurts. The Board has recharacterized the issue on appeal from service connection for tuberculosis, to service connection for a respiratory disorder, based on the evidence of record (which does not reflect an active tuberculosis diagnosis) and the Veteran's subjective symptoms. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Veteran's representative has requested that his claim be considered based on presumptions afforded to a Persian Gulf veteran under 38 C.F.R. § 3.317. See id. at page 6. The Veteran's DD Form 214 reflects service in Kuwait from February 2014 to February 2005, and while it does not reflect any awards indicating combat involvement, it does show he served in a designated imminent danger pay area. Based on his DD Form 214, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Service treatment records show that after his return from Southwest Asia, the Veteran had a positive PPD skin test result in February 2005. An x-ray imaging report showed his lungs were normal. The impression was tuberculin PPD nonspecific reaction without active tuberculosis, and he was prescribed 'inh' for six months as a result. In June 2005, this positive PPD skin test was determined to be in the line of duty. After service, a June 2015 letter from a potential employer indicated the Veteran's employment offer was rescinded as he was 'unable to perform and/or safely perform the essential job functions' with or without reasonable accommodations. A July 2015 e-mail reflected that the workplace was unable to accommodate his respirator usage restrictions identified during an initial entry physical at Workforce Wellness that involved 8 efforts on a spirometry exam. The exam results are not associated with the record. The Veteran was afforded a Persian Gulf War type examination in October 2019. While the examiner was requested by the RO to consider the symptoms representing an 'undiagnosed illness' or "diagnosed medically unexplained chronic multisymptom illness,' the examiner only focused on the disability claim at that time, which was for a knee condition. After the hearing, the Veteran submitted private treatment records from Dr. R.L. that indicated he had an abnormal pulmonary function test and subsequently underwent another spirometry exam. The Veteran has not had a VA respiratory examination, but he indicated his willingness to attend such at the hearing. See Hearing Transcript, page 11. A VA examination would be helpful in this case, and as such, should be scheduled on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, as noted earlier, the Veteran submitted private treatment records from Dr. R.L. and from a private pulmonary center that administered his August 2020 spirometry exam. Unfortunately, these records are almost illegible and also incomplete. On remand, the AOJ is asked to obtain authorization from the Veteran and request the July 2015 spirometry exam results from Workforce Wellness and these records. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. R.L., for Workforce Wellness, and any other physician(s)/facility(ies) that have treated him for his respiratory complaints. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed respiratory condition. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.