Citation Nr: 21075847 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-19 737 DATE: December 21, 2021 ORDER New and material evidence having been received; the claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD) is reopened. REMANDED Entitlement to service connection for COPD, to include as due to exposure to herbicide agents, exposure to fumes and smoke, and as secondary to service-connected pulmonary tuberculosis, is remanded. FINDINGS OF FACT 1. In a final decision issued in March 2015, the RO denied the Veteran's claim of entitlement to service connection for COPD. 2. Evidence added to the record since the March 2015 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim for a service connection for COPD. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final March 2015 rating decision, the criteria for reopening the claim of entitlement to service connection for COPD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to October 1971 and February 1975 to March 1984. In August 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). At the onset, the Board acknowledges that in December 2018, service treatment records were associated with the file after the March 2015 last prior final denial with respect to the Veteran's claim on appeal. Thus, the Board has considered whether reconsideration of the claim is warranted under 38 C.F.R. § 3.156 (c). VA regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156 (c). In this case, the newly-associated service records are not relevant to claim on appeal as they do not go to proving an unsubstantiated fact. Here, with respect to the Veteran's claim for service connection for COPD, the record prior to the last final denial established that the Veteran had confirmed in-country service in the Republic of Vietnam and that the Veteran had a diagnosis of COPD. Thus, in order to be relevant to an unsubstantiated fact, the newly associated treatment records must be relevant to show an in-service occurrence, other than in-country service in the Republic in Vietnam, and a nexus between such occurrence and the Veteran's COPD. Upon review, the newly associated treatment records do not reflect the Veteran had an in-service occurrence and/or a nexus between COPD and his service. Given such, these records do not relate to an unestablished fact necessary to substantiate the Veteran's claims. Accordingly, reconsideration of the Veteran's claim under 38 C.F.R. § 3.156 (c) is not required based upon the additionally-received service records. COPD Here, in a March 2015 rating decision, the RO denied the Veteran's claim for service connection for COPD, for lack of an in-service occurrence and nexus. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In November 2015, the Veteran submitted a claim to reopen his claim for a COPD. The evidence of record at the time of the final prior denial in March 2015, included, inter alia, the Veteran's service treatment records, Veteran lay statements, and VA treatment records. At the time of the last final prior denial, the Veteran established a current disability of COPD and in-country service in the Republic of Vietnam during the Vietnam Era. The evidence submitted and obtained since the March 2015 final denial includes Veteran's lay statements and updated VA treatment records. Upon review, the Board finds that this evidence is both new and material sufficient to reopen the Veteran's claim. The evidence is "new" as it had not been previously considered by VA, and the evidence is "material" because it relates to unestablished facts necessary to substantiate the underlying service connection claim. Specifically, the Veteran's November 2015 statement in support of a claim asserts that an article published in www.tnhealthandwellness.com establishes that veteran have a prevalence of COPD than the general population. As this evidence relates to an unestablished fact, a nexus, and has triggered the VA's duty to assist, reopening of the claim is in order. Shade, 24 Vet. App. 110. REASONS FOR REMAND With respect to the Veteran's claim of entitlement to service connection for COPD, the Board finds that further development is warranted. COPD During the Veteran's August 2021 Board hearing, the Veteran testified that he believes his diagnosis of COPD is due to his exposure to herbicide agents and due to his exposure to fumes and smoke from firing howitzer weapons during service. Also, in the alternative, the Veteran testified that he believes his COPD is secondary to his service-connected tuberculosis. At the onset, the Board notes that the record establishes that the Veteran has a diagnosis of COPD. See July 2014 VA examination report for respiratory conditions. Furthermore, VA has already acknowledged that the Veteran has in-country service in the Republic of Vietnam during the Vietnam Era. See January 2016 rating decision. This is also supported by the Veteran's military personnel records. Also, the Veteran's DD 214 reflects that his military occupational specialty was that of a rifleman and as a biomedical equipment specialist. As such the Board notes that the record establishes that the Veteran has a current disability and an in-service occurrence. Furthermore, the record reflects that the Veteran is service-connected for pulmonary tuberculosis. See February 2021 rating decision codesheet. Thus, the issues before the Board are the following: a) whether the Veteran's COPD is related to his conceded in-service exposure to herbicide agents; b) whether the Veteran's COPD is related to his claimed exposure to fumes and smoke from firing howitzer weapons during service; and/or c) whether the Veteran's COPD is secondary to his service-connected tuberculosis. The Board acknowledges the Veteran's COPD is not a presumptive disease associated with exposure to herbicide agents. Therefore, presumptive service connection due to exposure to herbicide agents is not warranted. However, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection on another basis. 38 U.S.C. § 113 (b); Combee v. Brown, 34 F.3d 1039, 1039 (Fed. Cir. 1994). While the record reflects a July 2014 VA examination report for respiratory conditions, the VA examiner did not provide an opinion as to whether the Veteran's COPD is directly related to his service. In fact, no opinion was provided at all. Furthermore, the Veteran raised the issues as to whether his COPD is related to his exposure to fumes and smoke from firing howitzer weapons and/or as secondary to his service-connected tuberculosis. There is no VA or non-VA medical opinion that addresses these alternative theories of entitlement. Consequently, VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). In sum, a remand is warranted for a VA medical opinion to address the theories of entitlement raised by the Veteran and by the record. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA and non-VA medical records relevant to the Veteran's COPD claim. 2. Upon completion of the above to the extent possible, request an addendum opinion from a qualified medical examiner to ascertain the nature and etiology of the Veteran's COPD. After reviewing the entire record, the examiner should provide an opinion responding to the following: a) Whether the Veteran's COPD is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service, to include as due to herbicide exposure. The VA examiner is advised that exposure to herbicide agents has been established. Given such, the examiner must assume that during the Veteran's service he was exposed to herbicide agents. Furthermore, the Board acknowledges that COPD is not a presumptive disease associated with herbicide agents; thus, the Board is asking the VA examiner as to whether the Veteran's actual exposure to herbicide agents is related to his COPD. b) Whether the Veteran's COPD is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service, to include as due fumes and smoke from firing howitzer weapons during service. The Board notes that the Veteran's MOS was as a rifleman and as a biochemical equipment specialist. c) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's COPD is (1) proximately caused by or (2) aggravated by (underwent any incremental increase in disability, regardless of its permanence), the Veteran's service-connected disabilities, to include tuberculosis. The VA examiner must provide separate findings and rationales relating to causation and aggravation. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's ongoing reports of his breathing problems. S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.