Citation Nr: 21032245 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-59 420 DATE: May 26, 2021 ORDER New and material evidence has been received, and the petition to reopen the claim for service connection for asthma is granted. REMANDED Entitlement to service connection for asthma is remanded. FINDING OF FACT A final February 2015 Board decision denied the Veteran's claim for entitlement to service connection for asthma, and the subsequent evidence received is not cumulative and redundant of the other evidence of record and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW New and material evidence has been received to reopen the issue of service connection for asthma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1981 to July 1982, with additional periods of active and inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of January 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2019, the Board denied reopening the Veteran's claim of service connection for asthma on the basis that new and material evidence had not been received to reopen her claim. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) and in a September 2020 order, the Court granted the parties' Joint Motion for Remand (Motion), vacated the Board's April 2019 decision, and remanded the claim to the Board for adjudication consistent with the Motion. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for asthma. Once a rating decision has become final, new and material evidence is generally required to reopen that claim. See 38 C.F.R. § 3.156(a). "New evidence is evidence not previously part of the actual record... [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. 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. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence "as to each previously unproven element of a claim") (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). In its April 2019 decision, the Board previously found that additional ongoing treatment records and lay statements were not material because they did not support the inference that "the Veteran's asthma was permanently aggravated beyond the normal course and scope of the disability by her training with the National Guard." See April 2019 Board Decision at 3-4. The Motion adopted by the Court found that because the prior adjudication of the Veteran's claim for service connection had "focused on [the Veteran's] asthma in September 1994[,]" and because the lay statement of A.B. addressed the Veteran's asthma in 2003, the Board's discussion of that statement was inadequate to support its adjudication. See Motion at 2. The statement of A.B. provides in pertinent part that "[the Veteran] has a history of Asthma while she was assigned [to her active and inactive duty for training]... During her assignment to this unit it became a problem for her starting in 2003." See July 2016 Lay Statement (capitalization in original, emphasis added). This statement supports the inference that the Veteran's asthma was aggravated during her active and inactive duty for training. Following the Court's September 2020 order, the Veteran also submitted a private medical opinion in support of her claim. See December 2020 Medical Opinion. The Board therefore finds that additional evidence has been submitted in support of the second and third Shedden factor and that the Veteran has presented new and material evidence that was not previously of record sufficient to reopen her claim to service connection for asthma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for asthma is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for asthma at this time. The Veteran asserts that her asthma was aggravated by her ACDUTRA beginning in 1994. See September 2011 Transcript at 2-4; see also December 2020 Correspondence at 4. Although the Veteran served on active duty from November 1981 to July 1982 and is service-connected for a back injury sustained during this period, the Veteran has not previously established service connection for a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). As the Veteran has not established "veteran" status for her periods of ACDUTRA, no presumptions, including the presumptions of soundness and aggravation, are applicable. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010). Accordingly, in order to establish aggravation, the Veteran has the burden by benefit of the doubt standard of showing a permanent increase in disability during the relevant period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). The Veteran was afforded VA examinations in April 2010 and June 2013. The Board previously found the April 2010 VA opinion inadequate as it was based on an inaccurate factual premise. A June 2013 VA examination report reflects that the examiner noted that the Veteran did not report flare-ups of her asthma until she was 15 years into service. The examiner explained that if exercise was the cause of a reawakening of her pre-existing asthma, this would have occurred early in the course of her service. Thus, the examiner opined that it was less likely than not that her pre-existing asthma was permanently aggravated beyond the natural scope of the disease by exercise performed while in service. In December 2020, the Veteran submitted a private medical opinion dated in November 2020. The clinician explained that asthma is a progressive condition and it is estimated that 80 percent of patients with asthma will eventually develop irreversible obstruction in their airways due to chronic, repeated inflammation. The clinician noted that while participating in military training in 1994, the Veteran began to experience shortness of breath with exercise and was diagnosed with exercise-induced bronchospasms and prescribed albuterol. Later in 1994, the Veteran was placed on a profile to limit activities as the rigorous training she underwent directly resulted in airway inflammation and narrowing. Despite being placed on a profile, however, the Veteran's breathing problems continued to worsen, and her 2007 Medical Board records listed her condition as peristent asthma rather than her previously diagnosed episodic, exercise-induced asthma. The clinician indicated that this progression of her disease process demonstrates a worsening in her lung function. The Board finds the June 2013 examiner's opinion inadequate in light of the November 2020 private medical opinion, as the June 2013 VA examiner did not explain why aggravation of the Veteran's asthma would be more likely to manifest immediately, or otherwise explain why the theory of cumulative injury advanced by the November 2020 private clinician is not plausible. However, the Board also finds the November 2020 private opinion inadequate to establish service connection. Here, the Veteran must not only establish a permanent increase in her asthma, but she must also establish that such permanent increase was beyond the natural progress of that disability. While the November 2020 private clinician indicated that the Veteran's asthma permanently worsened, the examiner also indicated that 80 percent of patients with asthma will eventually develop irreversible obstruction in their airways due to chronic, repeated inflammation. As such, it is not clear whether the Veteran's asthma worsened beyond the natural progress of the disability. As such, the Board finds that a remand is warranted for an addendum medical opinion. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran's asthma disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Did the Veteran's asthma at least as likely as not permanently increase in disability due to her periods of ACDUTRA? If so, was the permanent increase due to the natural progress of the disease? Provide a rationale to support the opinion(s). Although a complete review of the claims file is required, the examiner's attention is drawn to the November 2020 private opinion for consideration. In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.