Citation Nr: 21069916 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-11 376 DATE: November 22, 2021 ORDER New and material evidence having been received, the claim to reopen the previously denied claim of entitlement to service connection for nodules on lungs due to exposure to asbestos is granted. REMANDED Entitlement to service connection for nodules on lungs due to exposure to asbestos is remanded. FINDINGS OF FACT 1. In an August 2015 rating decision, the Regional Office (RO) denied entitlement to service connection for nodules on lungs due to exposure to asbestos; the Veteran did not appeal the decision and it became final. 2. Evidence received subsequent to the August 2015 rating decision relates to an unestablished fact necessary to substantiate the claim; is not cumulative of the evidence previously of record; and raises a reasonable possibility of substantiating the claim of entitlement to service connection for nodules on lungs due to exposure to asbestos. CONCLUSIONS OF LAW 1. The August 2015 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for nodules on lungs due to exposure to asbestos. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1955 to December 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by a Department of Veterans Affairs (VA) RO. In March 2018, the Veteran timely filed a notice of disagreement (NOD) and in March 2019, the RO issued a statement of the case (SOC). In April 2019, the Veteran perfected a substantive appeal and requested a hearing before a Veterans Law Judge (VLJ). In September 2021, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of that proceeding has been associated with the record. The Veteran's appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2020). 1. New and material evidence having been received, the claim to reopen the previously denied claim of entitlement to service connection for nodules on lungs due to exposure to asbestos is granted. The Veteran is seeking service connection for nodules on lungs due to exposure to asbestos. By way of history, in an August 2015 rating decision, the RO denied entitlement to service connection for nodules on lungs due to exposure to asbestos because the Veteran's service treatment records (STRs) did not show exposure to asbestos. The Veteran did not initial an appeal, and new and material evidence was not received within one year of the rating decision's issuance. The August 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In the March 2018 rating decision on appeal, the RO denied reopening the Veteran's claim based on no new and material evidence having been submitted. But see March 2019 SOC (the AOJ reopened the claim for entitlement to service connection). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 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. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Board finds that new and material evidence has been received subsequent to the August 2015 rating decision, which denied service connection for nodules on lungs due to exposure to asbestos. At the time of the rating decision, the evidence of record included VA treatment records, private treatment records, lay assertions, PIES report, military personnel records, and the Veteran's DD 214. Relevant evidence received more than one year since the August 2015 rating decision includes the Veteran's February 2018 claim, which indicates exposure to asbestos during service. See February 2018 Correspondence. This evidence satisfies the definition of new and material evidence, as it raises a reasonable possibility of substantiating the claim. This evidence was not of record at the time of the prior final denial and provides evidence towards substantiating the Veteran's claim. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of service connection for sleep apnea. REASONS FOR REMAND 1. Entitlement to service connection for nodules on lungs due to exposure to asbestos is remanded. The Veteran is seeking service connection for nodules on lungs due to exposure to asbestos during service. Specifically, he contends that exposure incurred during military service while he was serving on the USS Rockbridge and sleeping directly under piping for a year that was covered with asbestos (the cover had been torn away). See September 2021 Board Hearing Tr.; August 2020 Statement; February 2018 Claim; February 2018 Correspondence. The Veteran's military personnel record shows that the Veteran served in Camp Lejeune from March 1956 to July 1956. Following a review of the evidence of record, the Board finds that a remand is warranted for additional development. Specifically, the record shows that the Veteran was afforded a VA examination in March 2019. The examiner opined that the "Veteran ha[s] a diagnosis of asbestosis that is not at least as likely as not (50 percent or greater probability) incurred in or caused by (the) asbestos exposure during service." He explained that the Veteran has no diagnosis of asbestosis or pulmonary condition that was found documented on STRs or current VA files. The examiner notes the Veteran's statements and private opinion regarding the existence of small pulmonary nodules that were possibly the result of exposure to asbestos. He then asserts that the Veteran's military occupational specialty (MOS) of machine gunner had a minimal probability for asbestos exposure. Here, the VA opinion is inadequate for adjudicative purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The examiner fails to address the Veteran's lay assertions regarding exposure to asbestos due to having slept under an asbestos covered pipe for a year during service. The examiner additionally fails to provide any opinion as to whether the Veteran's disability is related to his service in Camp Lejeune from March 1956 to July 1956. As such, a remand is necessary for an addendum etiological opinion that contains adequate rationale regarding all pertinent evidence of record. The matter is REMANDED for the following action: 1. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic file. Any and all responses, including negative responses, must be properly documented in the electronic file, as well as any notification to the Veteran as to any records deemed unavailable. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's lung condition. The applicable record, to include a copy of this Remand, shall be made available to the examiner. The examiner must indicate review of the record. The need for a VA examination is left to the discretion of the clinician selected to write the opinion. The examiner must answer the following questions: (a.) Whether the Veteran's lung condition, to include nodules on lungs, is at least as likely as not (i.e., a 50 percent probability or greater) related to an in-service injury, event, or disease? (b.) Whether the Veteran's lung condition, to include nodules on lungs, is at least as likely as not (i.e., a 50 percent probability or greater) related to asbestos exposure during service? In doing so, the examiner should address the Veteran's competent lay assertions regarding exposure to asbestos while he was serving on the USS Rockbridge and sleeping directly under piping for a year that was covered with asbestos (the cover had been torn away). See September 2021 Board Hearing Tr.; August 2020 Statement; February 2018 Claim; February 2018 Correspondence. For purposes of the requested opinion, the examiner should assume that the Veteran is a reliable historian. (c.) Whether the Veteran's lung condition, to include nodules on lungs, is at least as likely as not (i.e., a 50 percent probability or greater) related to his service at Camp Lejeune from March 1956 to July 1956? A complete rationale for the medical opinion is required. The examiner should 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). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claims. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.