Citation Nr: 21039894 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-35 451 DATE: July 1, 2021 ORDER 1. The appeal to reopen a claim of service connection for asthma is granted. REMANDED 2. Entitlement to service connection for asthma (on de novo review) is remanded. 3. Entitlement to service connection for type 2 diabetes mellitus is remanded. 4. Entitlement to service connection for hypertension is remanded. 5. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. 6. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. 7. Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. A September 2006 final Board decision denied the Veteran service connection for a lung condition, including asthma, finding that such disability pre-existed his service but was not aggravated by service. 2. Evidence received since the September 2006 Board decision, including statements from nurses, tends to support that the Veteran's pre-existing asthma worsened in service; relates to an unestablished fact necessary to substantiate the claim of service connection for asthma; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received and the claim of service connection for asthma may be reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from September 1965 to June 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2015 Department of Veterans Affairs (VA) rating decision by. A January 2020 Board decision declined to reopen the claim of service connection for asthma, and denied service connection for hypertension, type 2 diabetes mellitus, bilateral carpal tunnel syndrome, and left and right upper extremity peripheral neuropathy. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a November 2020 Joint Motion for Remand (JMR). A December 2020 CAVC Order remanded the matters for compliance with the JMR instructions. 1. The appeal to reopen a claim of service connection for asthma is granted. Legal Criteria Decisions of the Board on claims are final, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, credibility of newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Factual Background and Analysis A September 2006 Board decision, in pertinent part, denied service connection for a lung condition, including asthma, finding that it pre-existed, and was not aggravated by, his service. The evidence of record at the time of the September 2006 Board included the Veteran's STRs, VA treatment records, private treatment records, and his lay statements regarding the etiology of his respiratory disability. The September 2006 Board decision was not appealed, and is final. See 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. Evidence received since the September 2006 Board decision includes an August 2010 statement (received in September 2010) from J.N., a registered nurse who had worked for the Veteran's now-deceased physician. He reported that the Veteran was treated for asthma at "an early age" and that his asthma "was under control before entering the Army. However, after returning home, his attacks were more severe and more often." The evidence also includes a May 2015 statement (received in June 2015) from H.M., another nurse who had worked for the Veteran's now-deceased physician. She reported that the Veteran was treated for childhood asthma and that, "After returning from the [A]rmy, his trips to [the physician] were more frequent." She also reported that the physician had stated that the Veteran's asthma was made worse by the "environment and emotional stress in Vietnam." The Board's January 2020 decision declined to reopen the claim, finding that the new evidence is cumulative, and therefore not material. In the November 2020 JMR, the parties agreed that the Board failed to provide an adequate statement of reasons and bases for its finding that no new and material evidence had been submitted to reopen the claim of service connection for asthma. The parties pointed to the August 2010 and May 2015 nurses' statements and agreed that the Board "failed to address whether the statements...indicated that [the Veteran's] preexisting asthma was aggravated by his active duty service, including the appropriate probative weight to assign" to those statements. Upon review of the entire record (including the parties' agreement in the November 2020 JMR), the August 2010 and May 2015 nurses' statements (which are presumed credible for the purpose of reopening) are new evidence, in that they were not in the record at the time of the prior final denial, and material, in that they suggest the Veteran's pre-existing asthma worsened in service (thus pertaining to an unestablished facts necessary to substantiate the claim). Consequently, and considering the "low threshold" standard for reopening endorsed in Shade, the Board finds that the evidence is both new and material, and that the claim of service connection for asthma may be reopened. De novo consideration of the claim is discussed in the remand below. REASONS FOR REMAND In the November 2020 JMR, the parties agreed that the Board erred in failing to ensure that all VA treatment records were associated with the Veteran's claims file prior to adjudication of the claims. The parties agreed that the record suggests that VA treatment records from the Birmingham VA Medical Center (VAMC) and/or Jasper outpatient clinic, including specifically from May 2007 through February 2012, are outstanding. They agreed that remand is required to make "reasonable efforts to obtain the outstanding VA treatment records from the Birmingham VAMC and Jasper clinic." [Additional discussion specific to each claimed disability, based on the JMR and the Board's re-review of the record, is provided below. As the appeal must be remanded for additional development, the Veteran will have the opportunity to submit (or identify for VA to obtain) any outstanding (i.e., those not already in the record) private treatment records pertaining to his claimed disabilities.] 2. Service connection for asthma (on de novo review) The Veteran contends that his asthma which pre-existed service "was made worse by Vietnam" service and his service-connected psychiatric disability (posttraumatic stress disorder (PTSD) and depressive disorder NOS). See September 2015 Notice of Disagreement (NOD). Further (in addition to, for outstanding treatment records) development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts and evidence necessary to properly adjudicate the now- reopened claim. As noted above, the Veteran has submitted two statements from private nurses to the effect that his pre-existing (childhood) asthma worsened during his active service. [He also submitted lay statements from his sister and friends indicating that his asthma worsened in service.] None of the statements (which are apparently based on remote, approximately 43 and 48 years in the past, recollections of remote events) report that his asthma worsened beyond the natural progression of the disease or identify the degree of worsening during service. The record also contains a June 2017 VA medical opinion against the claim; a doctor of nursing practice opined that the Veteran's pre-existing asthma was not aggravated beyond its natural progression during service, and that such "does not usually result from PTSD or depression." That opinion is inadequate for rating purposes, as it does not address the nurses' statements outlined above. Furthermore, it fails to address one of the Veteran's primary theories of entitlement, namely that his asthma is aggravated by his service-connected psychiatric disability. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Accordingly, the Board finds that remand for an examination to obtain a fully adequate medical advisory opinion in this matter is necessary. 3. Service connection for type 2 diabetes mellitus The January 2020 Board decision denied this matter based on a finding that the Veteran did not have a diagnosis of type 2 diabetes mellitus; such was not diagnosed on June 2015 VA examination. Furthermore, in a September 2015 NOD, the Veteran acknowledged that type 2 diabetes mellitus was "not yet diagnosed" but that he has elevated glucose levels. As discussed above, the JMR notes that that there may be outstanding VA treatment records; such should be obtained and reviewed (particularly more recent treatment records) to ascertain whether he now has a diagnosis of type 2 diabetes mellitus. [As he served in Vietnam during the Vietnam Era, and any type 2 diabetes mellitus diagnosed would be presumed to be due to his exposure to herbicides agents in service. See 38 C.F.R. § 3.309(e).] 4. Service connection for hypertension The Veteran contends his hypertension is due to exposure to Agent Orange in service or, alternatively, is secondary to his service-connected psychiatric disorder. See September 2015 NOD. The January 2020 Board decision denied this matter based on a finding that such did not manifest in service or in the first postservice year, is not etiologically related to the Veteran's active service, and was not caused or aggravated by his service-connected PTSD with depressive disorder NOS. In the November 2020 JMR, the parties agreed that the Board erred by failing to provide an adequate medical examination. The parties noted that the Board relied on a June 2017 VA medical opinion "that provided an opinion addressing only direct causation." However, the examiner "did not provide an opinion addressing whether [the Veteran's] service-connected PTSD aggravated" his hypertension (citing to El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013)). The parties agreed that "remand is required for the Board to ensure that VA obtains a medical opinion that adequately addresses this issue." The Veteran served in Vietnam and is presumed to have been exposed to herbicides agents in service. While hypertension is not currently on the list of diseases in 38 C.F.R. §§ 3.309(e) presumed due to exposure to herbicide agents in service, during the course of this appeal, The National Academies of Sciences, Engineering, and Medicine (NASEM), in the Veterans and Agent Orange Update: Update 11 (2018) (VAO Update), acknowledged "sufficient evidence of an association" between exposure to herbicide agents and hypertension (upgraded from the previous finding of a "limited or suggestive" relationship). Accordingly, remand for an advisory medical opinion which considers this new evidence in the context of a direct service connection theory of entitlement is necessary. 5., 6. Service connection for right and left upper extremity peripheral neuropathy The January 2020 Board decision denied these matters on the basis that the Veteran's left and right upper extremity peripheral neuropathies were not manifested in service, within the first postservice year, and are otherwise not shown to be related to his active service. Upon review of the record, the Board finds that remand for an examination to ascertain the likely etiology of the Veteran's left and right upper extremity peripheral neuropathies is necessary. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). On June 2015 VA peripheral nerves examination, peripheral neuropathy was diagnosed. The examiner specified that the Veteran does not have diabetic neuropathy. See June 2015 VA diabetic sensory-motor peripheral neuropathy examination report. The examiner provided a negative nexus (to service) opinion, stating the Veteran "does not have a diagnosis of carpal tunnel syndrome or diabetes mellitus II." The rationale provided states, "The peripheral neuropathy cause is unknown," and proceeds to explain that the "carpal tunnel syndrome" (not peripheral neuropathy) was not caused by or the result of diabetes mellitus because he does not have a diagnosis such illness. This opinion is inadequate for rating purposes: It is internally inconsistent, and the rationale is conclusory and inadequate. Remand for an examination to ascertain the nature and likely etiology of the V claimed bilateral upper extremity nerve disability is necessary. 7. Service connection for bilateral carpal tunnel syndrome The January 2020 Board decision denied this claim based on a finding that the Veteran does not have a diagnosis of bilateral carpal tunnel syndrome. In the November 2020 JMR, the parties agreed that the Board erred in failing to provide an adequate statement of reasons or bases because it did not address VA treatment records indicating that he has received diagnoses and treatment for carpal tunnel syndrome. [The parties cited to an October 19, 2016 VA treatment record which notes an assessment of bilateral carpal tunnel syndrome, and a November 4, 2016 treatment record which shows the Veteran underwent a right carpal tunnel release procedure.] Notably, carpal tunnel syndrome was not diagnosed on June 2015 peripheral nerves examination, and the record does not contain an etiology opinion regarding this disability. Because the nature and etiology of the Veteran's claimed bilateral upper extremity nerve disability remain unclear, remand for an examination that addresses the medical questions presented is necessary. The matters are REMANDED for the following: 1. Secure for the record complete, updated (to the present, all not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received. Specifically arrange for an exhaustive search to locate and secure for the record complete records of the Veteran's treatment at the Birmingham VAMC and the Jasper outpatient clinic from May 2007 through February 2012. If such records are not located (because irretrievably lost or found to not have been created), it should be so certified for the record (with the scope of the search described), and the Veteran must be so notified. 2. Also, ask the Veteran to identify all providers of private evaluations or treatment he has received for the claimed disabilities on appeal (records of which are not already associated with the record), and to submit authorizations for VA to secure for the record complete clinical records from the providers identified. Obtain those records (all available) for association with the claims file. 3. When the development sought above is completed, arrange for the Veteran's record to be forwarded to an appropriate medical provider for review and an advisory medical opinion regarding the likely etiology of his claimed hypertension. [If further examination of the Veteran is deemed necessary, such should be arranged.] The consulting provider should provide opinions that respond to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran's hypertension is directly etiologically related to his service, to include his presumed exposure to herbicide agents in Vietnam? The rationale for the opinion must discuss the NASEM's VAO Update findings that there is "sufficient evidence of an association" between exposure to herbicide agents and hypertension. See Veterans and Agent Orange: Update 11 (2018). (b) If the answer to (a) is No, is it at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected psychiatric disability? [The opinion must address aggravation.] (c) If the Veteran's hypertension is determined to not be etiologically related directly to his service, and to not have been caused or aggravated by his service-connected psychiatric disability, identify the etiology for the hypertension that is considered to be more likely (and explain why that is so). All opinions must include rationale with citation to supporting factual data and medical principles, as deemed appropriate. 4. Arrange for a respiratory diseases examination of the Veteran to determine the nature and likely etiology of his asthma. The entire record (to include this Remand and any newly obtained records) must be reviewed by the examiner. On examination of the Veteran and review of his record, to specifically include the private nurses' statements received in 2010 and 2015, the examiner should provide opinions that respond to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran's pre-existing asthma was aggravated (increased in severity beyond natural progression) during or by his service, to include his presumed exposure to herbicide agents in Vietnam? The rationale for the opinion provided must address the lay reports of record (including the Veteran's and his friends') that his pre-existing asthma worsened in service, and must address the 2010 and 2015 nurses' statements indicating that the Veteran's asthma (and asthma attacks) worsened in severity and frequency upon his return from active duty service. (b) If the answer to (a) is No, is it at least as likely as not that the Veteran's asthma was aggravated by his service-connected psychiatric disability? All opinions must include rationale that cites to supporting factual data and medical principles, as deemed appropriate. 5. Arrange for a peripheral nerves examination of the Veteran to determine the nature and etiology of his claimed bilateral upper extremity neurological disability (and any carpal tunnel syndrome). The entire record (to include this Remand and any newly obtained records) must be reviewed by the examiner. On examination of the Veteran and review of his record, the examiner should: (a) Identify (by diagnosis) each upper extremity neurological disability found or shown during the pendency of the claim. If bilateral upper extremity peripheral neuropathy is diagnosed, reconcile such finding with no diagnosis of such on June 2015 VA peripheral nerves examination. If bilateral carpal tunnel syndrome is not diagnosed, reconcile such finding with the diagnosis of (and treatment for) carpal tunnel noted in VA treatment records. (b) Identify the likely etiology of each upper extremity neurological disability (including carpal tunnel syndrome) diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran's service, to include his presumed exposure to herbicide agents in Vietnam? (c) If the response to (b) is that a diagnosed upper extremity neurological disability is not related directly to the Veteran's service, identify the etiology that is considered to be more likely (and explain why that is so). All opinions must include rationale that cites to citing to supporting factual data and medical principles, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.