Citation Nr: 21024721 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-40 661 DATE: April 26, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for asthma is granted. Entitlement to service connection for asthma is granted. FINDINGS OF FACT 1. In an October 1986 rating decision, the RO declined to reopen the Veteran’s claim of entitlement to service connection for asthma. He did not appeal the decision nor was new and material evidence received within one year. 2. The evidence received since the October 1986 rating decision includes evidence which relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for asthma and, if presumed credible, raises a reasonable possibility of substantiating that claim. 3. The evidence is in relative equipoise as to whether the Veteran’s asthma is causally related to his active service. CONCLUSIONS OF LAW 1. The October 1986 rating decision denying the claim of entitlement to service connection for asthma is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for asthma. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 3. Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for asthma have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to March 1970 with additional service in the Air National Guard. Service in the Republic of Vietnam is indicated by the record. The Veteran is the recipient of the Combat Action Ribbon, among other awards and decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which reopened and denied the Veteran’s claim of entitlement to service connection for asthma. He filed a notice of disagreement (NOD) in January 2018 and a statement of the case (SOC) was issued in July 2018. He perfected an appeal by filing a VA Form 9 in August 2018. In November 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. Although the RO reopened the Veteran’s claim, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the appellant that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claim. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bronchial asthma. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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 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, to include by triggering the Secretary’s duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a January 1973 rating decision, the RO denied the Veteran’s original claim of entitlement to service connection for asthma. As new and material evidence was not received within one year of the decision, it became final as to the identified claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The RO again denied the Veteran’s applications to reopen the asthma claim in July 1986 and October 1986. As new and material evidence was not received within one year of the July 1986 and October 1986 decisions, said decisions became final as to the identified claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond, supra. The Veteran now seeks to reopen his claim. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in October 1986. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claim of service connection for asthma. The evidence associated with the Veteran’s claims file at the time of the last final denial in October 1986 included service treatment records (STRs), service personnel records, a December 1972 VA examination report, VA and private treatment records, and statements of the Veteran. Relevant evidence received since the October 1986 decision includes positive nexus opinions dated December 2017 and March 2018 from Dr. A.G. and lay statements including the personal testimony of the Veteran. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received regarding the request to reopen the Veteran’s claim of entitlement to service connection for asthma. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, the December 2017 and March 2018 statements from Dr. A.G. indicated that the Veteran’s currently diagnosed asthma is causally linked to his military service. Crucially, this evidence relates previously unestablished elements of nexus and continuity as to the claim of entitlement to service connection for asthma. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, supra. 2. Entitlement to service connection for asthma. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Here, the Veteran contends that he has asthma, which was incurred in his active military service. See November 2020 Board hearing transcript. Specifically, he has described exposure to burn pits, as well as noxious fumes from military vehicles and military aircraft during his active duty service. See, e.g., the statement of Dr. A.G. dated December 2017. For the reasons set forth below, the Board finds that entitlement to service connection for asthma is warranted. As indicated above, the Veteran served on active duty from June 1967 to March 1970 with additional service in the Air National Guard. STRs, including the February 1970 separation examination, from the Veteran’s period of active duty service (June 1967 to March 1970) do not document any complaints of or treatment for asthma. With respect to the Veteran’s contentions of exposure to burn pits and noxious fumes from military vehicles and aircraft, his military occupational specialty (MOS) was automobile mechanic. Exposure to fumes from military vehicles is conceded as such exposure is consistent with the Veteran’s MOS. The Board additionally observes that the Veteran is competent to observe the burning of feces in open pits as such is observable with a layperson's senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Post-service treatment records dated in September 1970 documented the Veteran’s report of a cough with chest pain. A contemporaneous chest x-ray did not show any evidence of pneumonia. The Veteran was afforded a VA examination in December 1972 at which time the examiner confirmed a diagnosis of asthma, based upon history and physical findings. VA treatment records dated from April 1974 documented a continuing diagnosis of bronchial asthma. Notably, the Veteran reported that he had experienced intermittent asthma for two years and was hospitalized for asthma in 1971. See the VA treatment record dated April 1974. STRs from the Veteran’s Air National Guard service documented his continuing complaints of asthma. STRs dated in November 1995 noted the onset of asthma in the early 1970’s. In support of his claim, the Veteran submitted a December 2017 statement from Dr. A.G. who explained that the Veteran had been under his care for the treatment of asthma since the 1980’s. Dr. A.G. noted the Veteran’s report that he was exposed noxious fumes from military vehicles, military aircraft, and burn pits during his active duty military service. Dr. A.G. reported that the Veteran did not experience asthma symptoms prior to service. Dr. A.G. stated that the Veteran’s “symptoms developed within the one or two years post military discharge. It is not necessarily unusual for individuals to develop clinical symptoms of respiratory problems such as asthma after such reported noxious exposures even if the symptoms do not immediately start within the exposure range.” Dr. A.G. clarified, “[i]n other words, there can be delayed onset of respiratory symptoms.” In a March 2018 statement, Dr. A.G. reiterated that the Veteran has been under his care for many years and he had reviewed the Veteran’s medical history. Dr. A.G. stated, “this [V]eteran’s asthma condition is at least as likely as not due to his previous time in the military service.” Dr. A.G. noted that the exposure to chemicals from burn pits in Vietnam may have contributed to the Veteran’s asthma. He explained that the Veteran “worked around trucks with diesel engines and with fumes emitting acidic chemicals that were sued to clean the parts of the trucks and he was in charge of loading and unloading the trucks which were normally running inside of an enclosed area.” Dr. A.G. stated, “[a]ll of these environmental and noxious exposures certainly could have contributed to the onset of his asthma. Chemical exposures can contribute to changes in the airways that lead to ongoing airway irritability (asthma) even though exposure to these noxious materials may have ended.” Dr. A.G. further explained, The reason I state such is that the medical literature does support the fact that noxious materials can cause changes to the airways and inflammation that leads to ongoing airway hyperresponsiveness (asthma). Indeed, there is much evidence that exposure to diesel fumes can contribute to increased asthma activity in population so exposed. There is increased incidence of asthma activity in those who reside close to constant heavy engine fumes. Therefore, it is not at all unreasonable to conclude that the exposure that he experienced in his military service could have very well contributed to his asthma activity which has been an ongoing issue. Airway irritability once it develops can be a persistent issue even though the initial irritating material is no longer present in the individual’s environment. (Continued on the next page)   Given the evidence in favor of service connection before the Board, a remand for another examination or opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant); 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"). For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's diagnosed asthma was incurred during his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for asthma is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.