Citation Nr: 21073491 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-02 156 DATE: December 8, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a disability as a result of asbestos exposure is granted. REMANDED Service connection for a respiratory disability, to include asthma, to include as due to exposure to asbestos, is remanded. FINDING OF FACT Since the final December 2004 decision, new and material evidence has been received that raises a reasonable possibility of substantiating the Veteran's claim for service connection for a respiratory disability, to include as due to asbestos. CONCLUSION OF LAW The December 2004 decision that denied service connection for a disability as due to asbestos exposure is final; however, new and material evidence has been received and, thus, the claim is reopened. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 19.52, 20.1103 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1955 until his honorable discharge in July 1965. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from an August 2017 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA), which denied service connection for a respiratory disability and posttraumatic stress disorder (PTSD). The Veteran originally requested a Board hearing in his January 2019 VA Form 9, Substantive Appeal to the Board. In an October 2019 correspondence, he withdrew his hearing request. In February 2020, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to provide the Veteran with VA examinations to address the etiology of his respiratory disability and PTSD. Subsequently, the VA Regional Office granted service connection for PTSD in a September 2021 rating decision. Because that decision represents a full grant of the benefit sought concerning that claim, it is no longer before the Board. If the Veteran intends to dispute the initial rating and/or effective date assigned for his now service-connected PTSD, he must separately appeal those issues. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The VA Regional Office continued to deny service connection for a respiratory disability. The case now returns to the Board. The Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. New and Material Evidence To appeal a rating decision, the appellant must file a "notice of disagreement" "within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction." 38 U.S.C. § 7105(b)(1)(A); 38 C.F.R. § 19.2(c). A notice of disagreement must be submitted in writing and identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(b)(2)(A). If no notice of disagreement is filed within the prescribed period, the action or decision of the agency of original jurisdiction becomes final from the date notice was mailed. 38 U.S.C. § 7105(c). For the purposes of reopening claims decided by the agency of original jurisdiction (AOJ) before February 19, 2019 (the effective date of the Veterans Appeals Improvement and Modernization Act of 2017), such claims are still considered "legacy appeals" and are to be analyzed under VA's traditional "legacy" process. See 38 C.F.R. § 3.156(a); 38 C.F.R. § 3.2400(b). Under the legacy process, a veteran "may reopen a finally adjudicated legacy claim by submitting new and material evidence." 38 C.F.R. § 31.56(a). In a December 2004 decision, a VA Regional Office denied service connection for a "disability as a result of asbestos exposure." The Veteran's current claim for service connection for a respiratory disability is based, in part, on his claimed exposure to asbestos in service. Although the exact nature of the Veteran's claimed disability in 2004 was not specified, the Board finds it is reasonable to conclude that he was seeking service connection for a respiratory disability due to asbestos exposure in 2004. Therefore, the present claim for service connection is similar to the claim filed in 2004. The Veteran's 2004 claim was finally adjudicated by the VA Regional Office on December 6, 2014, the date notice was mailed to the Veteran denying his claim for a disability as a result of asbestos exposure. Thus, the "new and material evidence" standard applies. The Veteran did not file a notice of disagreement with the decision and new and material evidence was not received within one year of the decision. Thus, it became final. The Board observes that his present claim has not been treated as a petition to reopen service connection for a disability as a result of asbestos exposure by the VA Regional Office. Nevertheless, regardless of the VA Regional Office's determination, the Board must address the issue in the first instance because it ultimately affects the Board's jurisdiction to adjudicate the underlying claim. See Woehlaert v. Nicholson, 21 Vet. App. 456, 46061 (2007) (citation omitted). The Board must perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the last final disallowance is "new and material." Id. If it is, the Board must then reopen the claim and "evaluate the merits of the veteran's claim in light of all the evidence, both new and old." Id. "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 and must raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). The language of section 3.156(a) "does not require new and material evidence as to each previously unproven element of a claim"; instead, it compels reopening whenever a claimant submits new and material evidence "as to an unestablished fact from the previously denied claim." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In Shade, the Court held that the language of section 3.156(a), requiring the new evidence raise a reasonable possibility of substantiating the claim, is an analytical guide that creates a low threshold rather than a separate element. Id. at 117. In determining whether the low threshold is met, however, VA should consider whether the new and material evidence could, if the claim were reopened, reasonably substantiate the claim, to include triggering VA's duty to assist or through consideration of an alternative theory of entitlement not previously established by the evidence, id. at 11719, but not including "presentation of new arguments based on evidence already of record at the time of the previous decision," Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (emphasis added). "New evidence" "is evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.156(a). VA is required to presume the credibility of newly submitted evidence for the purposes of determining whether that evidence is material and sufficient to reopen a previously denied claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "Material evidence" means "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). The Board finds the Veteran has submitted new and material evidence warranting reopening of his claim for service connection for a respiratory disability. The medical records submitted by the Veteran, as well as the VA examination obtained in June 2020, show that the Veteran has a diagnosis of asthma. This evidence is new because it was not previously part of the record at the time of the 2004 decision, and it is material as it raises as reasonable possibility of substantiating a claim for service connection for a respiratory disability, to include asthma, as due to claimed asbestos exposure in service. Accordingly, new and material evidence has been received, and the petition to reopen the claim for service connection for a respiratory disability is granted. REASONS FOR REMAND Because the claim has been treated as new claim for service connection by the VA Regional Office, the VA Regional Office has already ruled on the merits of the claim. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) ("When the Board reopens a claim after the [Regional Office] has denied reopening that same claim, the matter generally must be returned to the [Regional Office] for consideration of the merits.") (citing 38 U.S.C. § 7104). Thus, remand is not required on this basis. Nevertheless, the Board finds the opinion obtained by the VA Regional Office as part of the Board's February 2020 Remand Order is not sufficient to make a determination on the merits of the Veteran's claim for service connection. Therefore, the claim must be remanded to obtain an addendum opinion. The Veteran claims that his respiratory disability was due to exposure to carbon monoxide and/or asbestos and/or excessive temperatures during his military service aboard naval ships. A June 2020 VA-contracted examiner diagnosed the Veteran with asthma and opined that the Veteran's respiratory disability was less likely than not due to his military service. He opined that the Veteran's asthma was genetic. However, he offered no factual basis for this conclusion. Therefore, the conclusion has no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). He further stated that "[c]arbon monoxide, asbestos exposure and extreme temperature exposure are not established etiologies of asthma in the medical literature." Yet, he also stated, "asbestos exposure does represent a risk factor for Asthma." This is an apparent contradiction, which makes the examiner's opinion equivocal. Thus, it has no probative value. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Finally, the examiner stated, "the Veteran does not have any objective evidence demonstrating asbestos exposure during service." Yet, the VA Regional Office's 2004 decision acknowledged that he "may have had exposure during service to asbestos since [he] performed an occupational specialty in the engineering department and [was] at sea for almost five years." The Board notes that "objective evidence" is not a requirement to establish asbestos exposure, as repeatedly stated by the United States Court of Veterans Appeals. See, e.g., Haas v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1466. Rather, service-connection claims are to be decided based on "all pertinent medical and lay evidence." 38 U.S.C. § 1154(a). At this point, the Board finds VA's duty to assist has not been satisfied as VA has not attempted to verify whether asbestos-exposure occurred on any of the naval vessels on which the Veteran served. 38 C.F.R. § 3.159(c) ("VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim.") Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Send the Veteran appropriate correspondence asking him to identify on which naval vessels he served during active military where he believes he was exposed to asbestos. Review the Veteran's military records along with the response(s) received from the Veteran, and then submit appropriate requests to the appropriate agencies, such as the Department of the Navy, Defense Personnel Records Information Retrieval System, or any other appropriate Records Research Center, requesting information about potential asbestos exposure aboard the vessels on which the Veteran served. Document all requests for information as well as all responses in the claims file. 3. After any additional records are associated with the claims file, obtain an addendum opinion from the June 2020 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's respiratory disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) the Veteran's respiratory disability, to include asthma, had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include as due to carbon monoxide exposure, asbestos exposure, or exposure to high temperatures while serving aboard naval vessels. (b.) If the examiner determines that the Veteran's respiratory disability is genetic, he or she must explain the reasoning behind that conclusion. That is, how did you come to that conclusion and why? In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The extent to which the Veteran's military occupational specialty as a Boilerhouse Foreman (light, heat, and power) exposed him to carbon monoxide, asbestos, and high temperatures aboard naval vessels. (b.) The June 2020 examiner's diagnosis of asthma and the Veteran's reported gradual onset of worsening shortness of breath and coughing beginning in 1965, which coincides with the Veteran's active military service or within one-year of discharge from active service. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his respiratory disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a respiratory disability in service or the assertion that an in-service event, injury, or illness led to his current respiratory disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that there is no legal requirement that there must be "objective evidence" asbestos exposure. Rather, service-connection claims are to be decided based on "all pertinent medical and lay evidence." 38 U.S.C. § 1154(a). If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). K. Marenna Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.