Citation Nr: 21077468 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-39 291 DATE: December 29, 2021 ORDER New and material evidence having been received, the petition to reopen service connection for chronic obstructive pulmonary disease (COPD) is granted. REMANDED Entitlement to service connection for COPD is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. Service connection for COPD was denied in a November 2012 rating decision and the Veteran did not appeal the decision. 2. Evidence received since the November 2012 rating decision is new in that it is not cumulative and was not previously considered by decision makers, and it is material because it raises a reasonable possibility of substantiating the claim for service connection for COPD. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for COPD. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1974 to May 1978. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. New and material evidence to reopen the claim for service connection for chronic obstructive pulmonary disease. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. 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. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran originally submitted a claim for service connection for COPD in May 2012, which was denied in a November 2012 rating decision on the basis that there was no evidence supporting a diagnosis of COPD and there was no evidence indicative of asbestos exposure. The Veteran was notified of the decision and he did not appeal it. As such, the decision is final. The additional relevant evidence received since the November 2012 rating decision includes lay statements from the Veteran during an August 2021 Board hearing and private medical records. The Veteran asserted that his current doctor informed him of a diagnosis of COPD. Additionally, the Veteran indicated that he has had breathing issues since 2003. The Veteran also contends that his exposure to asbestos from working on dry docks during active service contributed and/or caused his current breathing issues. Further, private medical records from October 2015 noted that the Veteran was diagnosed with asbestosis. Moreover, in November 2021, the Veteran submitted a private treatment note indicating that a doctor who has treated him since April 2017, stated that the Veteran has a long history of COPD. As these materials were not associated with the claims file at the time of the prior decision, it is new evidence. A review of this additional evidence reveals that it tends to prove or disprove a matter at issue with respect to the Veteran's service connection claim for COPD. Thus, for these reasons, the claim for service connection for COPD is reopened. REASONS FOR REMAND 1. Service connection for chronic obstructive pulmonary disease. The Veteran was most recently afforded a respiratory conditions VA examination in August 2012. Upon examination, it was noted that the Veteran was diagnosed with COPD in 2003. The VA examiner provided a medical opinion in September 2012 indicating that the Veteran's COPD was not related to service or asbestosis. No rationale was provided. A November 2012 VA addendum medical opinion was issued restating a negative medical nexus. The November 2012 VA examiner indicated that the Veteran does not have COPD or asbestosis lung disease based on a review of multiple medical documents. Additionally, the November 2012 addendum opinion noted that the Veteran uses his inhaler episodically likely for episodic bronchospastic airway problems. The Board finds both the September 2012 VA medical opinion and November 2012 VA addendum medical opinion inadequate for adjudication purposes. First, the September 2012 VA medical opinion does not provide a rationale with the opinion and is therefore inadequate. Second, the November 2012 VA addendum medical opinion is also inadequate because it bases the opinion on the premise that the Veteran does not have a COPD diagnosis. However, the Board notes that evidence available to the November 2012 VA examiner included a September 2012 VA examination which indicated the Veteran was diagnosed with COPD in 2003. The VA examiner also did not explain how their findings relate to not establishing a nexus. No discussion of exposure to asbestos in service was mentioned or any consideration to the Veteran's lay statements of experiencing breathing issues since 2003. Accordingly, as the current record before the Board lacks an adequate nexus opinion or other competent evidence sufficient to determine the etiology of the Veteran's COPD, the Veteran's claim must be remanded for an addendum medical opinion to determine whether the Veteran's COPD is related to his active military service and thus entitled to service connection on either a direct or a secondary basis. See Colvin v. Derwinski, 1Vet. App.171, 175 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds both the September 2012 VA medical opinion and November 2012 VA addendum medical opinion inadequate for adjudication purposes. An addendum VA medical opinion is necessary with regard to full and fair consideration of the evidence of record for his service connection claim for COPD. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). 2. Service connection for obstructive sleep apnea. The Board notes that to date the Veteran has not been afforded with a VA medical examination and opinion on whether his sleep apnea is related to service. Private treatment records indicate that the Veteran has a current diagnosis of severe sleep apnea from March 2010. At the August 2021 Board hearing, the Veteran indicated that his COPD caused his sleeping issues because he contended that he started having difficulty sleeping after the breathing issues began. See August 2012 VA examination (noting the Veteran was diagnosed with COPD in 2003); see also March 2010 private medical records (noting the Veteran was diagnosed with sleep apnea in 2010). As such, the medical evidence is insufficient, as the record lacks an adequate opinion regarding the etiology of the Veteran's sleep apnea. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing."); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Board notes that when a decision of one claim could have a significant impact on another, they are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 732 F.3d 1351, 1366 (Fed. Cir. 2013). Here, as stated above the Veteran's claim for service connection for COPD is being remanded for an VA addendum medical opinion. As such, the Board finds that the issue of service connection for COPD and the issue of service connection for sleep apnea are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Although the Board regrets this delay, such a remand is necessary to ensure fair and appropriate adjudication of the Veteran's claim consistent with VA's duties to assist. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician regarding the etiology of the Veteran's COPD. The examiner must review the Veteran's claims file, including this remand, and explain the complete rationale for all opinions expressed and conclusions reached. All manifestations related to the Veteran's COPD disability must be addressed. All respiratory diagnoses should be listed. The VA examiner should offer the following opinion: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's COPD disability had its onset during service or are otherwise related to active duty service, to include being caused or aggravated by the presumed in-service asbestos exposure. In rendering the opinion for the Veteran's COPD disability, the examiner MUST discuss and comment on: The July 2007 private treatment note from Dr. J stating that the Veteran has a history of asbestos exposure; and The August 2021 Board hearing testimony noting the Veteran testified that he was working in dry dock for over a year in active service and asserted that he had to crawl inside pipes that were wrapped in asbestos. 2. Schedule the Veteran for a sleep apnea examination and obtain a medical opinion on the current nature and likely etiology of the Veteran's sleep apnea. The examiner must review the Veteran's claims file, including this remand, and explain the complete rationale for all opinions expressed and conclusions reached. All manifestations related to the Veteran's sleep apnea disability must be addressed. The VA examiner should offer the following opinions: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea disability had its onset during service or are otherwise related to active duty service, to include being caused or aggravated by the presumed in-service asbestos exposure. Whether it at least as likely as not that the Veteran's COPD caused or aggravated his sleep apnea. A thorough rationale should be provided for all opinions expressed, including discussion of the facts of this case and any medical studies or literature relied upon. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. (Continued on the next page) The entire claims file, including a copy of this REMAND, must be reviewed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.