Citation Nr: 21012562 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-28 694A DATE: March 4, 2021 ORDER New and material evidence having been received, the claim for service connection for asthma is reopened. Entitlement to a certificate of eligibility for specially adapted housing is denied. REMANDED Entitlement to service connection for asthma is remanded. Entitlement to a temporary total evaluation for convalescence for surgery related to asthma is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for asthma was previously denied by a May 2014 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the May 2014 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for asthma and raises a reasonable possibility of substantiating the claim. 3. The Veteran does not have a service-connected disability. CONCLUSIONS OF LAW 1. The May 2014 rating decision denying service connection for asthma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for asthma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to a certificate of eligibility for specially adapted housing are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. § 3.809. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2000 to February 2007. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2020 Board hearing. A transcript is of record. Pursuant to the Veteran’s request, at his April 2020 Board hearing, the Veteran was notified that the record was held open for 90 days until July 9, 2020. See April Board hearing transcript at 2. Thereafter, in June 2020 the Veteran’s representative requested a 90-day extension in order to obtain additional evidence. See June 2020 third party correspondence. In an October 2020 correspondence, the Veteran was notified that his June 2020 motion for extension was granted and that he had until October 30, 2020 to submit additional evidence. The October 30, 2020 date has expired, and no additional evidence has been submitted. The Board will proceed with adjudication of the appeal.   New and Material Evidence New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Once the case is reopened, the presumption as to the credibility no longer applies. Justus, 3 Vet. App. at 513. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. 1. New and material evidence having been received, the claim for service connection for asthma is reopened. In May 2014, the agency of original jurisdiction (AOJ) denied the Veteran’s claim for service connection for asthma. The May 2014 rating decision denied the claim based on a finding that the condition neither occurred in nor was caused by service. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Since the May 2014 decision, VA has received new and material evidence to reopen the claim. In this regard, at his April 2020 Board hearing, the Veteran reported breathing issues in service and that he started taking antihistamine medications in service. See April 2020 Board hearing transcript at 6. As explained above, the Board is obligated to presume the credibility of such lay statements for the purpose of determining whether to reopen the claim. This new evidence relates to the basis for the original denial and raises a reasonable possibility of substantiating the claim because, if taken to be true, it reflects that the Veteran experienced his asthma symptoms during service. The Board therefore finds that this evidence is new and material, and the Veteran’s claim is reopened. 2. Entitlement to a certificate of eligibility for specially adapted housing is denied. A certificate of eligibility for specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. The certificate of eligibility is also available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). The phrase “preclude locomotion” is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). The U.S. Court of Appeals for Veterans claims (Court) has found that the term “loss of use” in the context of specially adapted housing claims generally means “a deprivation of the ability to avail oneself of the anatomical region in question.” Jensen v. Shulkin, 29 Vet. App. 66 (2017). The Court also identified four elements that must be satisfied to establish entitlement to specially adapted housing based on loss of use of the lower extremities: “That the individual must (1) have a permanent and total service-connected disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. Jensen, 29 Vet. App. 66. The Veteran does not have any service-connected disability. See October 2016 rating code sheet. Inasmuch as the Veteran does not have a service-connected disability, he does not have any service-connected disability rated as permanent and total. Moreover, the Veteran does not have any service-connected disability that involves burn injuries, blindness, amyotrophic lateral sclerosis, or loss of use of his upper or lower extremities. Eligibility for assistance in acquiring specially adapted housing has therefore not been established. In so finding, the Board recognizes that the appeal concerning entitlement to service connection for asthma is being remanded. However, the Veteran has not asserted, and the evidence does not support that asthma includes or involves burn injuries, blindness, amyotrophic lateral sclerosis, or loss of use of his upper or lower extremities. Therefore, a potential future grant of the claim seeking service connection for asthma would not change the outcome of the claim seeking entitlement to specially adapted housing. As such, the Board finds no reason to delay adjudication of the claim seeking assistance in acquiring specially adapted housing due to the remand of the claim seeking service connection for asthma. Thus, a preponderance of the evidence is against a finding that the Veteran has a permanent and total disability due to the any of the enumerated conditions under 38 C.F.R. § 3.809. He is therefore ineligible for assistance in acquiring specially adapted housing, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. The Board regrets the additional delay but finds that remand for development is needed. The Veteran contends that his asthma is due to service, to include allergy and breathing symptoms and exposures in service. See April 2020 Board hearing transcript at 6, 10. A February 2015 VA pulmonary consult note indicated the Veteran was assessed with severe, persistent asthma. The Veteran’s DD Form 214 indicates his military occupational specialty (MOS) was aviation administration man. Service treatment records (STRs) include a February 2004 medical surveillance questionnaire, which indicated the Veteran reported that from June 2000 to November 2000 he worked as a First Lieutenant and from November 2000 to December 2001 he worked in Line Division and, he identified a potential hazard of asbestos in the attic of a building that had a warning stating: Danger Asbestos. A January 2002 STR asbestos exposure initial medical questionnaire (DD Form 2493-1) revealed the Veteran reported having moderate dust exposure. A September 2002 STR indicated the Veteran had complaints of dry cough, rhinorrhea, sore throat, congestion, and fatigue and was assessed with an upper respiratory infection, possible strep. A November 2004 adult upper respiratory infection (URI) progress note revealed the Veteran had acute viral nasopharyngitis and was treated with Sudafed, Afrin spray, and Robitussin. A March 2005 adult URI progress note revealed the Veteran had acute viral nasopharyngitis and was treated with Tylenol, Robitussin, Guaifenesin, and Afrin spray. The May 2014 VA clinician opined that the Veteran’s asthma was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The clinician noted that she considered the Veteran’s service treatment records, military service, and VA medical records in arriving at the conclusion. She explained that her conclusion is based on the normal objective and subjective respiratory documentation at separation and lack of any asthma treatment or symptoms in service. The clinician stated that, while there was a one-time asbestos exposure questionnaire that marks “yes” to asthma, there is no supportive evidence for any asthma found in the documentation of treatment in service. The clinician stated that VA treatment records show a diagnosis of asthma with treatment appropriate for asthma, but these are recent records and the Veteran did not present for two scheduled appointments to evaluate pulmonary function. Upon review, the Board finds the May 2014 VA clinician’s opinion to be inadequate to decide the Veteran’s claim for service connection for asthma as the clinician did not address the Veteran’s reports of asbestos exposure in service and instead, relied on the absence of asthma in STRs and did not address his documented respiratory symptoms in service and potential hazard of asbestos exposure, as detailed above. Additionally, the May 2014 clinician opined that, if the Veteran was exposed to environmental hazards due to Gulf War there might be a consideration for respiratory symptoms related to asthma but at this time the evidence less than likely relates asthma to military service. However, the clinician stated that she could not identify in the DD 214 whether or not the Veteran’s service was in areas in which he would have been exposed to environmental hazards due to Gulf War. Notably, a January 2007 STR chronological record of medical care history of present illness note indicated the Veteran has been deployed since the last periodic health assessment and post deployment health assessment has been completed. In this regard, the Board notes that while the AOJ obtained the Veteran’s STRs, the AOJ did not obtain the Veteran’s personnel records and a finding of unavailability is not of record. The Veteran also testified at the April 2020 hearing that he had received treatment at several emergency rooms, including at the Mayes County emergency room, Hillcrest South, and St. Francis. Although the Veteran’s attorney had indicated he would be submitting any outstanding records while the record was held open and such records were not received, the Veteran and his attorney will have another opportunity to submit these records, or authorization for VA to obtain these records, on remand. Lastly, it does not appear that the AOJ has undertaken development as it relates to the Veteran’s reported asbestos exposure. For these reasons, the Board finds that remand for development is warranted. 2. Entitlement to a temporary total evaluation for convalescence for surgery related to asthma is remanded. As the claim for temporary total evaluation for convalescence for surgery related to asthma is inextricably intertwined with the remanded claim for service connection for asthma, it is also remanded. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records from January 2017 to the present and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment he has received for asthma, including at Hillcrest South, Mayes County emergency room, and St. Francis (as identified on page 10 of the April 2020 Board hearing transcript). Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s complete military personnel records from his active duty service and associate them with the claims file. If these records are unable to be obtained, the AOJ should make a formal finding of unavailability and associate it with the record. 4. Conduct any necessary development to verify the Veteran’s potential exposures in service, to include asbestos. 5. Then, the Veteran’s claims files should be forwarded to an appropriate clinician to review the claims file and provide an addendum opinion. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. The VA clinician is asked to respond to the following inquiry: Whether it is at least as likely as that the Veteran’s current asthma disability had its onset during service or is otherwise related to an in-service injury, event, or disease, to include any environmental exposures therein? In offering the opinion, the clinician is asked to address: (a) The February 2004 medical surveillance questionnaire, wherein the Veteran noted a potential hazard of asbestos in the attic of a building that had a warning stating: Danger Asbestos; (b) the January 2002 asbestos exposure initial medical questionnaire (DD Form 2493-1) wherein the Veteran reported having moderate dust exposure; (c) the September 2002 STR which indicated the Veteran had complaints of dry cough, rhinorrhea, sore throat, congestion, and fatigue and was assessed with an upper respiratory infection, possible strep; (d) the November 2004 adult progress note in which the Veteran had acute viral nasopharyngitis and was treated with Sudafed, Afrin spray, and Robitussin; (e) the March 2005 adult progress note that indicated the Veteran had acute viral nasopharyngitis and was treated with Tylenol, Robitussin, and Guaifenesin; and (f) the May 2014 clinician’s opinion that, if the Veteran was exposed to environmental hazards due to Gulf War there might be a consideration for respiratory symptoms related to asthma but at this time the evidence less than likely relates asthma to military service. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the clinician should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. After completing the above action and any other necessary development, the claims for service connection for asthma and temporary total disability evaluation must be readjudicated. If any claim remains denied, a Supplemental Statement of the Case must be provided to   the Veteran and current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.