Citation Nr: 21006071 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 19-18 852 DATE: February 3, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for asthma is reopened. Entitlement to service connection for asthma is denied. FINDINGS OF FACT 1. A December 2009 rating decision denied service connection; the Veteran did not timely appeal this denial; and no new and material evidence was submitted within the one-year appeal period following the issuance of that decision. 2. Evidence received since the December 2009 rating decision is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim for service connection for asthma. 3. The preponderance of the evidence is against finding that the Veteran’s asthma began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of service connection for asthma have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for costochondritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1984 to November 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). As a preliminary matter, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran currently has a 100 percent evaluation for compensation, effective January 31, 2019. New and Material Evidence As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened, and the former disposition reviewed. 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. 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). In determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the language of 38 C.F.R. § 3.156 (a) creates a low threshold, and the Court has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason the claim was last denied but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The record shows that a December 2009 rating decision denied the Veteran's claim of service connection for asthma because the evidence did not show it was incurred in or due to the Veteran's time in service. The Veteran did not appeal the December 2009 rating decision. Moreover, additional evidence was not added to the claims file in the first year after the December 2009 rating decision. 38 C.F.R. § 3.156(b). Accordingly, the Board finds that the December 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran refiled the claim in June 2018 and the RO denied on grounds of no new and material evidence in the November 2018 rating decision. The Veteran appealed the November 2018 decision. The Board notes that, at the time of the December 2009 rating decision, the Veteran’s service treatment records were found to be unavailable for review. See June 2009 Formal Finding on the Unavailability of Service Records. The Veteran’s service treatment records have now been recovered and post-service treatment records for asthma have also been added to the record. Since the final decision, the VA received evidence which may establish a nexus between the Veteran's current disabilities and service. As this evidence is new and was not of record at the time of the prior denial, the Board finds that it was not previously considered by agency decision makers. The Board also finds that this new evidence is not cumulative and redundant of evidence already of record. And, because a nexus between the Veteran's current disabilities and service is a condition precedent for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)), the Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection a left foot disability, and therefore raises a reasonable possibility of substantiating such a claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence constitutes new and material evidence and the claims are reopened. 38 U.S.C. § § 5108, 7104; 38 C.F.R. § 3.156. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § § 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for asthma. The Veteran contends that her asthma manifest during or is otherwise related to active service. Additionally, the Veteran’s representative suggested that her asthma was caused by or aggravated by military sexual trauma (MST). The Board notes that the Veteran is currently service connected for posttraumatic stress disorder (PTSD) due to MST at a 100 percent disability rating. The Veteran’s service treatment records are silent as to complaints of, treatment for, symptoms of, or diagnosis for asthma during active service. In May 1985, during a period of inactive duty reserve service, the Veteran was treated for a chest cold and diagnosed with allergic asthma. Post-service medical records from 2014 to 2016 show treatment for asthma, unspecified. Review of the Veteran’s psychological evaluations and examinations does not show that respiratory symptoms or related manifestations have been associated with her PTSD or otherwise noted. No etiological opinions or suggestions are contained in the record that relate the Veteran’s asthma to service, MST, or PTSD. Here, there is no competent evidence of a nexus between service and the Veteran’s asthma. The only evidence of record in support of such a nexus is the Veteran’s lay opinion that these conditions are due to service. To the extent the Veteran’s statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran’s assertions as to a relationship between this condition and service are of little probative value. The Board acknowledges that the Veteran was not afforded a VA examination in connection with his claim for service connection for asthma; however, the Board finds that no such development is warranted based upon the facts of this case. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as there is no evidence indicating that the Veteran’s disabilities may be associated with service. Again, there is no competent and probative evidence to show that the Veteran had asthma during service. There is also no competent and probative evidence to show that the Veteran’s asthma is related to service. Service and post-service medical treatment records only provide evidence against this claim. The Board acknowledges the Veteran’s treatment for a chest cold and allergic asthma in 1985; however, the available records do not show treatment for or complaints of asthma again until nearly 30 years later. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for asthma and that the claim must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.