Citation Nr: 21007982 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-43 223 DATE: February 11, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for degenerative disc disease of the L4-5 and L5-S1 lumbar levels with lumbar scoliosis (low back condition) for substitution or accrued benefits purposes is granted. Entitlement to service connection for lung cancer, to include as due to ionizing radiation exposure for substitution or accrued benefits purposes is granted. REMANDED Entitlement to service connection for a low back condition for substitution or accrued benefits purposes is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) for substitution or accrued benefits purposes is remanded. FINDINGS OF FACT 1. In an unappealed April 2007 statement of the case, the RO denied a claim for entitlement to service connection for degenerative disc disease of the L4-5 and L5-S1 lumbar levels with lumbar scoliosis. 2. Evidence received since the April 2007 statement of the case was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran’s claim for a low back condition. 3. The Veteran was a radiation-exposed veteran, and his lung cancer was presumptively related to the ionizing radiation exposure. CONCLUSIONS OF LAW 1. The April 2007 statement of the case, which denied a claim for entitlement to service connection for a low back condition, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a low back condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for lung cancer for substitution or accrued benefits purposes have been met. 38 U.S.C. §§ 1110, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1944 to January 1949 and from September 1949 to August 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran passed away in August 2012 while his claims were pending before the RO. The appellant timely filed for substitution, which the RO implicitly granted in the October 2013 rating decision. Therefore, the Veteran’s spouse is the proper appellant. In December 2020, the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. Additionally, at the hearing, the appellant noted on the record that the private attorney that previously represented her was no longer her representative and she wished to continue without representation. To date, the appellant has not appointed another representative. Therefore, the Board recognizes the appellant as now proceeding pro se in this appeal. The Board notes that the claim for a lung condition initially came to the Board as a claim for COPD. However, on his October 2011 Veterans Application for Compensation or Pension, the Veteran generally claimed “lung problems.” In addition to a diagnosis of COPD, three months after the Veteran filed his claim and prior to his death, a January 2012 VA treatment record noted a lung mass, which subsequently was found to be malignant. As such, the Board has more broadly characterized the appeal for COPD as encompassing claim for lung cancer as well. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); Clemmons v. West, 206 F.3d 1401 (Fed. Cir. 2000). The Board finds that the issue of entitlement to service connection for lung cancer can be finally adjudicated. However, the service connection claim for COPD requires additional development. Therefore, the Board has bifurcated the issue of service connection for a lung condition into two separate issues - entitlement to service connection for COPD and entitlement to service connection for lung cancer. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (noting that it is permissible for VA to bifurcate a claim of entitlement to service connection based on direct service connection and presumptive service connection) (en banc); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion). Though it appears that the RO has reopened the claim for service connection for a low back condition and adjudicated the claim on the merits, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board also notes that a claim of entitlement to service connection for COPD (claimed as a breathing condition) previously was denied in a July 2006 rating decision. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103. However, in June 2012, service personnel records that were not associated with the record at the time of the prior denial were obtained. The personnel records confirmed the Veteran’s participation in a radiation-risk activity. See Undated Certificate of Participation. Although the Veteran reported being exposed to ionizing radiation on his original February 2006 claim, he did not specifically attribute his breathing condition to such exposure. Instead, he generally indicated that his poor health was due to such exposure. However, he also did not attribute his breathing condition to any specific in-service event in his original claim and instead generally attributed it to his service. See also October 2011 Veterans Application for Compensation or Penson (indicating that the Veteran’s prior intention was to claim a lung condition due to radiation exposure). Following a sympathetic review of the claim, and resolving all reasonable doubt in favor of the Veteran, the Board will find that in his original February 2006 claim, the Veteran raised the theory that his breathing condition was due to radiation exposure thereby making the personnel records relevant within the meaning of subsection 3.156(c)(1). As such, VA must consider the claim without regard to the finality of the July 2006 rating decision. 38 C.F.R. § 3.156(c). 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). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a low back condition. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for degenerative disc disease of the L4-5 and L5-S1 lumbar levels with lumbar scoliosis was initially denied in a July 2006 rating decision on the basis that the Veteran’s back condition was not incurred in or caused by his military service. The Veteran subsequently timely filed a notice of disagreement and a statement of the case (SOC) was issued in April 2007 continuing the denial. The Veteran did not file a substantive appeal to the SOC and thus, it became final. 38 U.S.C. § 7105; 38 U.S.C. §§ 20.302, 20.1103. No evidence was constructively or physically of record within 60 days of the April 2007 SOC. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). As noted above, military personnel records were added to the record after the April 2007 SOC. When relevant service records are newly associated with the file, VA must reconsider the previously denied claim de novo. See 38 C.F.R. § 3.156(c); Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). The term “relevant,” as used in 38 C.F.R. § 3.156(c)(1), means noncumulative and pertinent to the matter at issue in the case. See Kisor, 869 F.3d at 1368-69. Where the newly obtained records do not remedy the defects of the prior claim and contain facts that were never in question, they are not “relevant” within the meaning of 38 C.F.R. § 3.156(c)(1). While the Board finds that the records were relevant to the Veteran’s claim for COPD, it finds they were not relevant to the Veteran’s claim for a back condition. As noted above, the personnel records confirmed the Veteran’s participation in a radiation risk activity and exposure to ionizing radiation. However, unlike the claim for COPD/breathing condition, the Veteran did not generally attribute his back condition to service but rather attributed it to a specific injury that he reported occurred in 1954 while moving a heavy item. See February 2006 claim; April 2006 VA examination. In fact, at no point during the appeal of his original claim or the October 2011 claim, from which this appeal stems, did the Veteran ever indicate that his back condition was due to radiation exposure. Instead, he consistently attributed his back condition to the 1954 injury he contended occurred in service. Thus, because the Veteran did not raise the theory that his back condition was due to radiation exposure in his original claim, and the fact that degenerative disc disease of the lumbar spine is not a condition presumed to be related to ionizing radiation exposure, the personnel records do not remedy the defects of the prior claim and contain facts that were never in question. Accordingly, the personnel records are not “relevant” within the meaning of 38 C.F.R. § 3.156(c)(1) and reconsideration is not warranted. At the time of the April 2007 SOC, the pertinent evidence of record included service treatment records, VA treatment records, private treatment records, and VA examination reports. Since the most recent final denial in April 2007, VA treatment records, private treatment records, lay statements, hearing testimony, and a Back Conditions Disability Benefits Questionnaire (DBQ) were added to the record. As this evidence was not before VA or considered in the prior denial, it is new. In a November 2010 statement, a fellow solider, J.F., reported that he served with the Veteran from 1960 to 1962 and during that time the Veteran had back problems and could not lift anything heavy without hurting himself. J.F. also noted that the Veteran had told him about a back injury that occurred earlier in service. As this evidence relates to whether the Veteran’s back condition was incurred in service, an unestablished fact necessary to substantiate the claim, it is material. Accordingly, new and material evidence has been received. The request to reopen the prior denial is granted. 38 C.F.R. § 3.156. To this limited extent only, the appeal is granted. 2. Entitlement to service connection for lung cancer, to include as due to ionizing radiation exposure. As explained above, the Board finds that the Veteran sought service connection for lung cancer prior to his death which he contended, and the appellant contends, was due to his exposure to ionizing radiation. For the reasons that follow, the Board finds service connection is warranted. Although the appellant already has been granted service connection for the cause of the Veteran’s death based on his lung cancer, service connection for lung cancer for the purposes of substitution or accrued benefits purposes is a separate claim and benefit. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include cancer, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Additionally, VA regulation provides for service connection for radiation exposed veterans on three different legal bases: (1) presumptively service connected for certain diseases under 38 C.F.R. § 3.309(d); (2) directly service connected after specified development procedures are conducted under the special framework of 38 C.F.R. § 3.311, if the claimed condition is a radiogenic disease; or (3) directly service connected by showing that the disease was incurred in, or aggravated by, service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Only the first basis is pertinent in this case. A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309(d)(3)(i) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a “radiation-risk activity.” A “radiation-risk activity” is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; and internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II that resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. See 38 C.F.R. § 3.309(d)(3)(ii). Radiation-risk activities also include certain service at gaseous diffusion plants in Paducah, Kentucky; Portsmouth, Ohio; an area identified as K25 at Oak Ridge, Tennessee; certain service on Amchitka Island, Alaska; or service, if performed as an employee of the Department of Energy, that would qualify the claimant for inclusion as a member of the Special Exposure Cohort under Section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000. Id. If a veteran is considered a “radiation-exposed veteran” and has a disease listed in 38 C.F.R. § 3.309(d), service connection will be granted on a presumptive basis. Turning to the evidence of record, as noted above, a lung mass was noted in January 2012 which subsequently was found to be malignant. See August 2012 private treatment record; death certificate. Prior to his death, the Veteran contended that he was exposed to radiation in service and that his lung problems were due to such exposure. See October 2011 Veterans Application for Compensation or Pension. The appellant further reported that the Veteran was exposed to radiation during participation in Operation Hardtack. See March 2013 Radiation Risk Activity Information Sheet. An undated Certificate of Participation as well as an August 2013 letter from the Defense Threat Reduction Agency (DTRA) confirmed the Veteran’s participation in a radiation-risk activity, Operation Hardtack, an atmospheric nuclear test series conducted at the Pacific Proving Ground in 1958. Accordingly, the Veteran is considered a “radiation-exposed veteran.” As the Veteran participated in a radiation-risk activity and developed cancer of the lung, a disease listed in 38 C.F.R. § 3.309(d), service connection for such is warranted on a presumptive basis. Accordingly, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a low back condition for substitution or accrued benefits purposes. The appellant contends that the Veteran’s back condition is related to his active military service. The Board finds that a remand is warranted in order to obtain an etiological opinion. Prior to his death, the Veteran contended that he injured his back in service when he moved a heavy trailer. See April 2006 VA examination. The Veteran and the appellant have reported that the Veteran experienced back pain since the reported injury in service. See April 2006 VA examination; December 2020 hearing transcript. Although the Veteran underwent a VA examination in April 2006, an etiology opinion was not obtained. In light of the foregoing, the Board finds that a remand is warranted in order to obtain an opinion that addresses whether the Veteran’s back condition was related to his active military service. The Board acknowledges that the Veteran’s private orthopedic physician, Dr. A.R., submitted a DBQ in March 2014. However, no etiology opinion was provided. Moreover, there may be outstanding, relevant private treatment records. On his October 2011 claim to reopen, the Veteran reported receiving treatment from Orthopedic West End Richmond. However, no records from this facility are of record. Moreover, on his February 2006 claim, the Veteran reported receiving treatment from Dr. W. for his back condition. However, no records from Dr. W. are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. 2. Entitlement to service connection for COPD for substitution or accrued benefits purposes. The appellant contends that the Veteran’s COPD is related to the Veteran’s active military service, to include ionizing radiation exposure. Although the Veteran’s exposure to ionizing radiation has been conceded, service connection cannot be granted on a presumptive basis as COPD is not a disease listed under 38 C.F.R. § 3.309(d)(2). Where service connection cannot be granted on a presumptive basis, the claim must be analyzed under 38 C.F.R. § 3.311. Pursuant to 38 C.F.R. § 3.311, where a veteran has a radiogenic disease and was exposed to ionizing radiation in service, a dose estimate must be obtained, and the claim referred to the Under Secretary for Benefits for an advisory opinion. The term “radiogenic disease” includes those listed in 38 C.F.R. § 3.309(b)(2), plus any other cancer and posterior subcapsular cataracts, nonmalignant thyroid nodular disease, parathyroid adenoma and tumors of the brain and central nervous system. 38 C.F.R. § 3.311(b)(2). If the veteran claims a disease not listed as a radiogenic disease in 38 C.F.R. § 3.311(b)(2), VA will nonetheless forward the claim to the Under Secretary for Benefits for review, if the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). Here, although COPD is not listed as a radiogenic disease in 38 C.F.R. § 3.311(b)(2), the appellant submitted an opinion by the Veteran’s private pulmonologist, Dr. J.W., that indicated his COPD was related to his radiation exposure. The Board considers such to be competent medical evidence that COPD may be a radiogenic disease. Therefore, in light of the foregoing, the Board finds that a remand is necessary in order to obtain a dose estimate and refer the claim to the Under Secretary for Benefits for an opinion as to whether the Veteran’s COPD is related to his ionizing radiation exposure in service. See DD Form 1411, Record of Exposure to Ionizing Radiation; Record of Exposure to Ionizing Radiation, United States Air Force Hospital Norton Air Force Base California. While the Board acknowledges the November 2013 opinion by Dr. J.W. who opined that the Veteran’s COPD was a direct result of his conditions in service, a review of his opinion shows that in addition to considering the Veteran’s exposure to radiation, he also considered exposure to asbestos. However, a review of the record shows that the Veteran consistently denied exposure to asbestos, and there is no evidence of record to indicate, including his military occupational specialty, that he was exposed to asbestos. See February 2006 and October 2011 Veterans Application for Compensation or Pension (denying exposure to asbestos). Additionally, aside from not having a dose estimate upon which to base the opinion, Dr. J.W. did not explain the connection between radiation exposure and COPD. Accordingly, the Board finds it is not sufficient to grant this claim. Moreover, there may be outstanding, relevant private treatment records. The evidence of record shows that the Veteran received treatment for his COPD from Dr. J.W. since 2006. See November 2013 correspondence from Dr. J.W. However, only a May 2012 record from this provider is of record. Accordingly, a remand is required to allow VA to obtain authorization and request any additional outstanding records. The matters are REMANDED for the following action: 1. Contact the appellant and request authorization and consent to release information to VA, for Dr. W., Orthopedic West End Richmond, and Dr. J.W. Then, take appropriate action to contact all identified provider(s) and request any non-duplicative records. 2. Transfer the claims file to an appropriate examiner to obtain an opinion addressing the etiology of the Veteran’s lower back disorder. The examiner must review the claims file. The examiner is asked to comment on whether the Veteran’s lower back disability was at least as likely as not related to service, including moving a heavy trailer. Provide a rationale to support the opinion, to include the Veteran’s lay statements. 3. Request a dose estimate from the Defense Threat Reduction Agency (DTRA), in accordance with the provisions of 38 C.F.R. § 3.311. 4. Thereafter, forward the case to the VA Under Secretary for Benefits to obtain an opinion as to whether it is at least as likely as not that any exposure to ionizing radiation during the Veteran’s active service caused or   contributed to his development of COPD, taking into consideration the factors listed under 38 C.F.R. § 3.311(e). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.