Citation Nr: 21009404 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-23 036A DATE: February 22, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for chronic obstructive pulmonary disease (COPD) is reopened; the claim is granted to this extent only. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. FINDING OF FACT 1. A February 2006 rating decision denied the Veteran’s claims for entitlement to service connection for a skin cancer. 2. The evidence received since the February 2006 rating decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for COPD. 3. The evidence is at least in relative equipoise as to whether the Veteran’s COPD was related to his active service. CONCLUSION OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for COPD. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 2. The criteria for service connection for COPD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to November 1954. Unfortunately, the Veteran died in November 2013. The Veteran’s surviving spouse was substituted as the appellant in this appeal. 38 U.S.C. § 101(3); 38 C.F.R. § 3.1010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Appellant testified before a Board hearing in January 2021. The transcript of the hearing is associated to the record. A June 2015 rating decision granted service connection for asbestosis. The RO’s grant of service connection for this issue constitutes a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. Id. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. As new and material evidence has been received, the claim for entitlement to service connection for COPD is reopened; the claim is granted to this extent only. A rating action from which an appeal is not perfected becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that 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. In order to reopen a claim which 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 decision makers; 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. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. In a February 2006 rating decision, the RO indicated that the evidence did not demonstrate a link between the Veteran’s COPD and his active service, to include asbestos exposure. The evidence of record included service treatment records (STRs); military personnel records (MPRs); post-service treatment records, including two private opinions indicating that his COPD was related to his in-service asbestos exposure; and a February 2006 VA examination providing a negative direct service connection opinion. The Veteran was notified of the February 2006 rating decision and timely filed a Notice of Disagreement (NOD). However, following the issuance of the Statement of the Case (SOC), the Veteran took no further action. Therefore, the February 2006 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302, 20.1103. Since the February 2006 rating decision became final, updated medical treatment records for COPD and emphysema have been received. Additionally, new private opinions suggesting a link between the Veteran’s COPD/emphysema and asbestos exposure and a new VA opinion were received. The Board finds that the low threshold requirement for new and material evidence is satisfied with respect to the claim for COPD. Shade v. Shinseki, 24 Vet. App. 110 (2010). When considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claim. Thus, the Board finds that new and material evidence has been submitted and the petition to reopen the claim of entitlement to service connection for COPD must be granted. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. The Appellant contends that service connection is warranted for the Veteran’s COPD as directly related to his in-service asbestos exposure. Alternatively, the Appellant, through her representative, contends that service connection is warranted on a secondary basis as due to his service-connected asbestosis. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Service treatment records are silent for any complaints, treatment, or diagnosis related to COPD or associated symptoms. Post-service treatment records reflect a diagnosis of and treatment for COPD and emphysema. An August 2005 private medical opinion indicates that the Veteran had COPD of moderate severity. There was also evidence of restrictive lung disease. A history of possible exposure to asbestos may be related to his current lung disease. An addendum to this opinion, dated in October 2005, opined that a history of asbestos exposure is as likely as not related to his current lung disease. A February 2006 VA examiner opined that, after a physical examination and review of the medical literature and claims file, it was less likely than not the Veteran’s COPD was caused by or related to his exposure to asbestos on active duty. A May 2012 private medical opinion notes that the Veteran had underlying COPD and some findings on his chest x-ray consistent with asbestos exposure; therefore, it is likely that some of his lung disease is from this. An August 2012 private statement indicates that the Veteran had findings on chest CAT scan and plain film chest x-rays that are consistent with previous asbestos exposure; he had calcifications noted that were pathopneumonic for this disorder. He also has a longstanding history of dyspnea on exertion. He was a lifelong nonsmoker but had lung volumes consistent with emphysema, which is consistent with asbestos exposure. An August 2013 private medical statement notes that the Veteran had a history of service-related asbestos exposure and evidence of asbestos on imaging studies, including some plaque changes on his diaphragm. He has also been diagnosed with COPD but has no other chemical or tobacco exposure. A June 2015 VA examination report notes review of the available medical treatments and indicates that the cause of the Veteran’s COPD/emphysema (both names have been used) is not determined. The examiner indicated, however, that COPD resulted in nearly all the PFT changes noted in the records and results in all the medication he was using to treat respiratory symptoms as well. The examiner, noting that the Veteran also had asbestosis, indicated that asbestosis does not cause COPD nor result in the use of his prescribed COPD medications, especially since the plaques are confined to the diaphragm surfaces only. The examiner further noted that the degree to which PFT results were attributed to COPD versus asbestos is not able to be determined without resorting to mere speculation. The COPD would certainly be causing nearly all, if not all, these changes, but to state a specific likelihood as to a percent cause would simply be mere speculation. At the January 2021 Board hearing, the Appellant testified that it was her belief that the Veteran’s COPD was due to his asbestos exposure during active service, and neither she nor the Veteran had ever been told otherwise. Moreover, following service, the Veteran worked in sales positions, having never been a smoker or exposed to fumes of any kind. After a review of the evidence, the Board finds that the record reflects that the Veteran had a diagnosis of COPD. Thus, the element of a current disability is met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, VA has previously found that the Veteran had in-service asbestos exposure, the second element is also satisfied. Id. With respect to the final element, the evidence of record is at least in equipoise as to whether the Veteran’s COPD is related to his active service. In this regard, each medical opinion of record exhibits deficiencies. The August 2005 and October 2005 positive opinions linking the Veteran’s COPD/emphysema to asbestos exposure during military service are problematic because no supporting rationale was provided. Similarly, the February 2006 VA opinion was unsupported by any rationale. Additionally, although the August 2012 medical statement suggests a relationship between COPD/emphysema and asbestos exposure, neither the August 2012 nor August 2013 medical statements provided a medical opinion linking his COPD to asbestos exposure. Finally, with regard to the June 2015 VA opinion, the examiner did not provide any etiology opinion for COPD; rather, the examiner merely indicated that COPD was not caused by his service-connected asbestosis. Thus, the Board finds that the opinions are entitled to equal probative weight. Under the benefit-of-the-doubt rule set forth by statute, for the Appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of the positive and negative evidence. 38 U.S.C. § 5107. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for COPD. For these reasons, the Board resolves reasonable doubt in favor of the Appellant and grants service connection for COPD. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on the next page)   In light of the Board’s decision to award service connection for COPD as due to the Veteran’s in-service exposure to asbestos, to the extent that the record also reflects additional contentions or alternative theories of entitlement, the Board notes that the decision to award service connection for the Veteran’s COPD is deemed a full grant of the benefits sought on appeal. Therefore, the Board need not address these contentions or additional theories of entitlement. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.