Citation Nr: 21007928 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 20-09 341 DATE: February 11, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. Entitlement to a disability rating in excess of 30 percent for asthma is denied. REMANDED Service connection for sleep apnea is remanded. Service connection for a skin condition, to include as secondary to herbicide exposure, is remanded FINDINGS OF FACT 1. In a final March 2014 rating decision, the RO denied the Veteran’s claim for service connection for sleep apnea. 2. The evidence received since the March 2014 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claim for service connection for sleep apnea. 3. Throughout the pendency of the appeal, the Veteran’s asthma is not productive of Forced Expiratory Volume in one second (FEV-1) of 40- to 55-percent predicted; FEV-1/Forced Vital Capacity (FVC) of 40 to 55 percent; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for an initial rating in excess of 30 percent for asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to June 1969. In September 2020 statements, the Veteran withdrew his request for a hearing before a Veterans Law Judge. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for sleep apnea Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “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. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In unappealed March 2014 rating decision, the RO denied service connection the claim, finding that there was no nexus associating a sleep apnea with service. The Veteran was notified of the rating decision, but did not appeal it. As such, the March 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the prior decision, the record included the service records which failed to show complaints, a diagnosis or findings consistent with sleep apnea; post-service treatment which document sleep apnea after 2006 and; statements from the Veteran asserting that he was entitled to service connection for sleep apnea. The evidence received since the March 2014 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The additional evidence includes statements from the Veteran claiming service connection for sleep apnea as secondary to his service-connected psychiatric disorder, along with medical articles that suggest a nexus between PTSD and sleep apnea. Also of record is a witness statement from a fellow service member who served with the Veteran and recalled that the Veteran snored loudly during service. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened. 2. Entitlement to a disability rating in excess of 30 percent for asthma Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran’s asthma is rated under Diagnostic Code 6602, pertaining to bronchial asthma. 38 C.F.R. § 4.97, Diagnostic Code 6602. Respiratory disorders are rated under 38 C.F.R. § 4.97, Diagnostic Codes 6600 through 6817 and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), ratings under those diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). The Veteran’s service-connected asthma has been rated at 30 percent under Diagnostic Code 6602 throughout the appeal period. On VA examination in February 2018, it was noted that the Veteran’s asthma required treatment with daily inhalers. His condition did not require the use of oral or parenteral corticosteroid medications or oral bronchodilators. The Veteran did not require antibiotics or outpatient oxygen therapy. He had not had any asthma attacks with episodes of respiratory failure in the past 12 months or any physician visits for required care of exacerbations. Chest x-rays failed to disclose any acute processes. Pulmonary Function Tests (PFTs) showed FEV-1 predicted at 74 percent and 73 percent post-bronchodilator, FEV-1/FVC shows 92 and post- bronchodilator was 95. With regard to functional impairment, the examiner observed that the Veteran’s asthma would impact strenuous physical labor with rapid prolonged walking, running or climbing that could trigger asthma symptoms of shortness of breath or wheezing. On VA examination in June 2018, the Veteran reported shortness of breath and wheezing with climbing stairs of fast-paced walking. He stated that he had sought emergency treatment for an asthma attack treated with Proventil and Advair. He was being followed at VA. His symptoms improved with medication. The examiner noted no episodes of asthma attacks with episodes of respiratory failure in the past 12 months. He had not required physician visits for required care of exacerbations. PFTs documented FVC at 65 percent predicted pre-bronchodilator and post-bronchodilator FVC at 71 percent; FEV-1 at 57 percent predicted pre-bronchodilator and post-bronchodilator FEV-1 at 67 percent; FEV-1/FVC at 86 percent predicted pre-bronchodilator and post-bronchodilator FEV-1/FVC at 93 percent, and; DLCO was 71 percent predicted. The test that most accurately reflected the Veteran’s level of disability was FEV-1/FVC. With regard to functional impairment, the examiner observed that the Veteran’s asthma would impact strenuous physical labor with rapid prolonged walking, running or climbing that could trigger asthma symptoms of shortness of breath or wheezing. After thorough consideration of the evidence of record, the Board concludes that the criteria for an increased disability rating greater than 30 percent for the service-connected asthma have not been met. Specifically, the evidence does not show that the Veteran’s respiratory disability resulted in PFT results with FEV-1 of 40 to 55 percent predicted, post-bronchodilator, FEV-1/FVC of 40 to 55 percent, post-bronchodilator, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Moreover, the evidence does not show that the Veteran had FEV-1 of less than 40 percent predicted, FEV-/FVC of less than 40 percent, more than one attack per week with episodes of respiratory failure, or that he required the use of systemic high dose corticosteroids or immuno-suppressive medications on a daily basis during this time. As such, a higher disability rating was not warranted. As a final matter, although the Veteran has alleged that his asthma affects his ability to climb stairs or walk at a fast pace due to shortness of breath and wheezing, he has not specifically claimed entitlement to a total disability due to individual unemployability (TDIU) as a result of his service-connected disabilities. In the event that a claim of a TDIU was implicitly raised (see Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009)), review of the medical evidence does not reflect that the Veteran meets the required percentage criteria. Nor does the record suggest that the Veteran’s service-connected connected asthma and psychiatric problems alone preclude employment so as to warrant a referral for extraschedular consideration. Thus, a clear preponderance of the evidence of record is against a finding that the Veteran is precluded from gainful employment due solely to his service-connected disabilities, and no further action pursuant to Rice is warranted. REASONS FOR REMAND 1. Service connection for sleep apnea is remanded. The Veteran contends he is entitled to service connection for sleep apnea as due to service, or in the alternative, he asserts that sleep apnea is secondary to his service-connected psychiatric disorder. In support of his claim, the Veteran submitted a May 2019 statement from a fellow service member who reportedly served with the Veteran in Vietnam in 1968, and who reportedly observed that the Veteran snored very loudly when he slept. In support of his claim for service connection on a secondary basis, the Veteran submitted internet articles suggesting a link between obstructive sleep apnea and PTSD. The Veteran was afforded a sleep apnea examination in June 2018. The examiner stated that the Veteran’s sleep apnea was less likely as not proximately due to or the result of his service connected psychiatric disorder. However, the examiner failed to address the Veteran’s recently submitted medical articles suggesting a link between obstructive sleep apnea and PTSD. The examiner also failed to address the aggravation element of secondary service connection. Moreover, the examiner did not address whether or not the Veteran’s sleep apnea was directly caused by or related to his service to include the Veteran’s report of snoring and difficulty sleeping. Therefore, the Board finds the opinion does not provide an adequate basis to reach a decision on the issue of entitlement to service connection for sleep apnea to include as secondary to his psychiatric disorder and an addendum opinion should be obtained. 2. Service connection for a skin condition, to include as secondary to herbicide exposure is remanded The Veteran seeks service connection for a skin condition, to include as secondary to exposure to Agent Orange. The Veteran was afforded a VA examination for service connection his skin disorders in 2019. While the examiner noted diagnoses of dermatitis of the left thigh in 2010, folliculitis in 2016, actinic keratosis in 2015, and rosacea in 2011, an etiological opinion was not provided. Such an etiological opinion must be obtained on remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA attempts to provide an examination, it must be adequate for adjudication purposes). The matters are REMANDED for the following action: 1. Submit the claims file to the June 2018 VA examiner, if available, for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate a review of the file in the examination report. Examination of the Veteran is not required unless the examiner determines that one is necessary to provide a reliable opinion. If an examination is required, all indicated tests and studies should be completed. The examiner should provide an opinion that responds to the following: a) Determine whether it is at least as likely as not (a probability of 50 percent or greater) that sleep apnea had onset during service from November 1967 to June 1969 or is otherwise related to any aspect of the Veteran’s service. Please explain why or why not. b) If not, determine whether it is at least as likely as not (a probability of 50 percent or greater) that sleep apnea is aggravated by a service-connected disability, to include his psychiatric disorder. Please explain why or why not. In rendering the opinion, the examiner is asked to address the internet article submitted by the Veteran that suggest an etiological relationship between PTSD and sleep apnea. 2. Submit the claims file to the June 2018 VA examiner, if available, for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate a review of the file in the examination report. Examination of the Veteran is not required unless the examiner determines that one is necessary to provide a reliable opinion. If an examination is required, all indicated tests and studies should be completed. For each identified skin disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the skin disability was incurred during service, to include as due to the Veteran’s presumed exposure to Agent Orange. The examiner must explain his/her reasoning for the conclusion reached. The examiner should be aware that the absence of the Veteran’s disability on the list of disabilities subject to presumptive service connection is not dispositive evidence weighing against the claim. As such, it should not be used as the sole basis in support of a negative nexus opinion. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.