Citation Nr: 21073458 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-55 582 DATE: December 8, 2021 ORDER Reopening of a previously denied claim of service connection for a lung condition, to include bronchial asthma, is granted. REMANDED Entitlement to service connection for a lung condition, to include bronchial asthma, is remanded. FINDINGS OF FACT 1. Service connection for a lung condition, to include asthma, was denied in an unappealed November 2011 rating decision on the grounds that no new and material evidence had been received; the underlying denial was based on a lack of showing of aggravation of a pre-existing condition. 2. Evidence received since November 2011 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, and relates to an unestablished fact. CONCLUSIONS OF LAW 1. The November 2011 decision declining to reopen the previously denied claim of service connection for a lung condition, to include asthma, is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening of the previously denied claim of service connection for a lung condition, to include asthma, are met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1971 to June 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA) which declined to reopen a previously denied claim of service connection for a lung condition. In the August 2017 statement of the case (SOC), the AOJ granted Veteran's request to reopen service connection for lung condition due to new and material evidence submitted; in the same decision, the AOJ denied entitlement to service connection due to lung condition. The Veteran testified in February 2021 at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Reopening In the August 2017 SOC, the AOJ reopened the previously denied claim and considered the merits in confirming and continuing the denial of service connection for a lung condition, to include asthma. However, irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). 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.A. § 5108; 38 C.F.R. § 3.156. The AOJ denied service connection in a 1971 rating decision because pre-existing asthma was not aggravated by service. A November decision declined to reopen the claim. No disagreement or relevant evidence was received within one year of the November 2011 decision, and it became final. 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 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Veteran submitted previously unconsidered medical records showing current symptoms. These records were sufficient to trigger the duty to assist; the AOJ secured an examination and opinion. New and material evidence sufficient to require reopening was received. Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim. REASONS FOR REMAND A Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132, 1137. If a preexisting disorder is noted upon entry into service, the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, section 1153 applies, and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); Jensen, 19 F.3d at 1417. Here, asthma was not noted at the February 1971 pre-induction physical. The Veteran specifically denied any history of the condition. Subsequent to reporting for active duty in early April 1971, however, the Veteran had asthma attacks and on 23 April 1971 examination reported he had a long-standing history of asthma as a child and had required use of an inhaler. Erroneous enlistment was found by the medical board, and the Veteran was separated. The Veteran has not disputed the fact of pre-existence, and has actually repeatedly confirmed his statements and history. Asthma clearly and unmistakably pre-existed service. However, to rebut the presumption of soundness, clear and unmistakable evidence must also show the condition was NOT aggravated by service, beyond the natural progression of the disease. The January 2017 examiner who rendered the opinion that the asthma attacks soon after reporting did not represent aggravation unfortunately applied the lesser "at least as likely as not" standard. While the rationale offered appears sufficient, it cannot be determined if the necessary standard of proof has been met. Accordingly, remand for an appropriate opinion is required. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for a VA Respiratory Conditions examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether the Veteran's pre-existing asthma condition was clear and unmistakably NOT aggravated beyond the natural progression by service. In other words, were the in-service attacks simply continuation of the condition, or do they represent worsening of the asthma? The January 2017 opinion and rationale should be discussed. A full and complete rationale is required for all opinions expressed. 3. Then, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case (SSOC) and, after appropriate time for response, return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.