Citation Nr: 22005482 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 17-21 745 DATE: February 2, 2022 ORDER The appeal seeking entitlement to a compensable rating for pseudofolliculitis barbae is dismissed. The appeal seeking to reopen a claim seeking entitlement to service connection for weight loss (hyperthyroidism) is dismissed. The appeal seeking to reopen a claim seeking entitlement to service connection for a bilateral knee condition is dismissed. New and material evidence having been received, the claim for service connection for asthma is reopened. New and material evidence having been received, the claim for service connection for a gastrointestinal condition is reopened. New and material evidence having been received, the claim for service connection for bilateral pes planus is reopened. Service connection for asthma is granted. REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a gastrointestinal condition is remanded. Entitlement to service connection for bilateral pes planus is remanded. REFERRED In an October 2018 VA Form 21-526b, Veteran's Supplemental Claim for Compensation, the Veteran filed a petition to reopen a claim of entitlement to service connection for a right ankle condition. As the record does not reflect that the Agency of Original Jurisdiction (AOJ) has issued a rating decision for this claim, the matter is referred to the AOJ for initial adjudication. FINDINGS OF FACT 1. During the March 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeals seeking a compensable rating for pseudofolliculitis barbae, and seeking to reopen claims of service connection for weight loss (hyperthyroidism) and for a bilateral knee condition. 2. The Veteran's claim for service connection for asthma was previously denied by a November 2013 rating decision; the Veteran did not complete an appeal of the decision and documentation constituting new and material evidence was not actually or constructively received within the applicable appeal period. 3. Additional evidence received since the November 2013 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. 4. The Veteran's claim for service connection for a gastrointestinal condition was previously denied by a June 2015 rating decision; the Veteran did not complete an appeal of the decision and documentation constituting new and material evidence was not actually or constructively received within the applicable appeal period. 5. Additional evidence received since the June 2015 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 a gastrointestinal condition, and raises a reasonable possibility of substantiating the claim. 6. The Veteran's claim for service connection for bilateral pes planus was previously denied by a November 2013 rating decision; the Veteran did not complete an appeal of the decision and documentation constituting new and material evidence was not actually or constructively received within the applicable appeal period. 7. Additional evidence received since the November 2013 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 bilateral pes planus, and raises a reasonable possibility of substantiating the claim. 8. The Veteran is presumed sound as to asthma; he served in Saudi Arabia during the Persian Gulf War and manifested asthma within 10 years from his separation from service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to a compensable rating for pseudofolliculitis barbae are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2021). 2. The criteria for withdrawal of the appeal seeking to reopen a claim for entitlement to service connection for weight loss (hyperthyroidism) are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2021). 3. The criteria for withdrawal of the appeal seeking to reopen a claim for entitlement to service connection for a bilateral knee condition are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2021). 4. The November 2013 rating decision denying service connection for asthma is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2021). 5. New and material evidence has been received to reopen the Veteran's claim for service connection for asthma. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 6. The June 2015 rating decision denying service connection for a gastrointestinal condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2021). 7. New and material evidence has been received to reopen the Veteran's claim for service connection for a gastrointestinal condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 8. The November 2013 rating decision denying service connection for bilateral pes planus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2021). 9. New and material evidence has been received to reopen the Veteran's claim for service connection for bilateral pes planus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 10. The criteria for service connection for asthma are met. 38 U.S.C. § 1110, 1111, 1131, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.320 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to March 1988 and from November 1990 to June 1991. This matter is on appeal from September 2016, May 2017, and December 2018 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. On the record at the March 2021 hearing, the Veteran requested to withdraw the appeals seeking a compensable rating for pseudofolliculitis barbae and seeking to reopen the claims of entitlement to service connection for weight loss (hyperthyroidism) and for a bilateral knee condition. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As such, the Veteran has withdrawn his appeal for these issues; hence, in regard to these claims, there remains no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claims, and they are dismissed. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 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. Asthma In December 2013, the RO notified the Veteran of a November 2013 rating decision that denied the Veteran's claim of service connection for asthma. The November 2013 rating decision denied the claim essentially based on a finding that the Veteran's condition existed prior to service and was not permanently worsened as a result of service. In November 2014, VA received a notice of disagreement, and in June 2017 the RO issued a statement of the case. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received during the remaining appeal period; 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. During the March 2021 hearing, the Veteran reported that he began wheezing while in service and experienced an aggravation in his asthma which existed prior to service. He also stated that it "was just getting more and more difficult to breathe" in service and that he "would sneeze a lot because there were things in the air." This new evidence relates to the basis of the original denial and raises a reasonable possibility of substantiating the claim because it supports the Veteran's contention that his condition worsened in service. The Board therefore finds that this evidence is new and material, and the Veteran's claim is reopened. 2. Gastrointestinal Condition In June 2015, the RO denied the Veteran's claim of service connection for gastrointestinal symptoms (Gulf War Syndrome). The June 2015 rating decision denied the claim essentially based on a finding that the Veteran's condition was not incurred in or related to service. In July 2015, VA received a notice of disagreement, and in June 2017 the RO issued a statement of the case. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within the remaining appeal period; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. During the March 2021 hearing, the Veteran reported that he has experienced stomach issues since service. This new evidence relates to the basis of the original denial and raises a reasonable possibility of substantiating the claim because it supports his contention that his condition was incurred in service. The Board therefore finds that this evidence is new and material, and the Veteran's claim is reopened. 3. Bilateral Pes Planus In December 2013, the RO notified the Veteran of a November 2013 rating decision that denied the Veteran's claim of service connection for pes planus. The November 2013 rating decision denied the claim essentially based on a finding that the condition existed prior to service and was not permanently worsened as a result of service. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within the remaining appeal period; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. During the March 2021 hearing, the Veteran reported that he experienced pain while wearing boots in service. This new evidence relates to the basis of the original denial and raises a reasonable possibility of substantiating the claim because it supports the Veteran's contention that his condition worsened in service. The Board therefore finds that this evidence is new and material, and the Veteran's claim is reopened. Service Connection Asthma The Veteran contends that he has asthma that is related to his exposure to particulate matter during his service in Saudi Arabia. Although the AOJ found that the Veteran had not submitted new and relevant evidence to readjudicate the claim for service connection for asthma and did not readjudicate the claim on the merits, the Veteran is not prejudiced by the Board considering the appeal on the merits, as the Board is granting the service connection claim. Hickson v. Shinseki, 23 Vet. App. 394 (2010). During the pendency of this appeal, VA regulations were amended to allow for presumptive service connection for Veterans who served in the Southwest Asia theater as defined in 38 C.F.R. § 3.317(e)(2) or in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001 during the Persian Gulf War as defined in § 3.2(i). See 75 Fed. Reg. 42, 724 (Aug. 5, 2021). The regulation provides that if a Veteran was exposed to particulate matter, to include as the result of burn pits, in these locations, certain listed diseases shall be service connected if manifested to any degree within 10 years from the date of separation from military service. 38 C.F.R. § 3.320(a)(1). A Veteran shall be presumed to have been exposed to fine, particulate matter during such service, unless there is affirmative evidence to establish that the Veteran was not exposed to such matter during that service. 38 C.F.R. § 3.320(a)(1). The list of diseases afforded this presumption include asthma, rhinitis, and sinusitis, to include rhinosinusitis. This amendment is applicable to claims received by VA on or after August 5, 2021, and to claims pending before VA on that date, as well as certain previously denied claims. See 75 Fed. Reg. 42,724 (Aug. 5, 2021). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd, 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's asthma preexisted his military service. Specifically, on his May 1987 entrance examination and on a May 1991 demobilization examination from Southwest Asia, he reported a history of having bad asthma as a child that he later overcame. Although the Veteran reported the above history, the Veteran's May 1987 entrance examination is absent of any clinical notations of defects, infirmities, or disorders related to a respiratory condition. Additionally, the evidence is in approximate balance as to whether asthma manifested during service. At the March 2021 hearing, the Veteran testified that he began having breathing problems again while he was deployed to Saudi Arabia. Therefore, with respect to asthma, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id.; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's asthma preexisted service. As noted above, the Veteran provided a history of having asthma prior to service on his May 1987 and May 1991 service examinations. Additionally, he testified at the March 2021 hearing that he had asthma as a child, when he was 5 or 6, where he could not run, but as he got into high school the problems were "pretty much gone." As the Veteran has provided an undisputed history of having asthma as a child, and the Board finds his statements to be both competent and credible, the Board concludes this is clear and unmistakable evidence of preexistence. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran's personnel records reflect that he served in Saudi Arabia from January 1991 to May 1991. As such, he is entitled to a presumption that he was exposed to fine, particulate matter during his service there. 38 C.F.R. § 3.320. On October 2013 VA examination, the Veteran reported that he developed shortness of breath, wheezing, decreased stamina, and productive cough while he was in Saudi Arabia. He reported first being treated for and diagnosed with asthma in 1992 by a private physician who treated him with albuterol. He also testified at the March 2021 hearing as to how difficult it was to breathe outside in Saudi Arabia, and that he would try to stay indoors as much as possible. He also testified that he continued to have problems with his breathing when he returned from Saudi Arabia and that prior to seeking treatment post-service he would use an over-the-counter inhaler if he got really out of breath. On October 2013 VA examination, the examiner provided an opinion that there was clear and unmistakable evidence that asthma was not aggravated beyond its natural progression during service, as the Veteran reported on his May 1991 physical after returning from Saudi Arabia that he was in good health except for his vision and in January 1993 he did not report having breathing problems. The examiner noted that there was no medical evidence in the file showing that he had an exacerbation of his asthma while in Saudi Arabia or upon his return from Saudi Arabia. In evaluating this evidence, the Board concludes that the most competent and credible evidence of record illustrates that there is not clear and unmistakable evidence that the disability was not aggravated by military service. Although the VA examiner opined that there was clear and unmistakable evidence asthma was not aggravated by service, she does not appear to have considered the Veteran's statements regarding the increase of symptoms during service, his exposures during service, and his continuing symptoms after his return from Saudi Arabia. Thus, the Board finds the opinion does not meet the high burden of showing clear and unmistakable evidence that asthma was not aggravated by the Veteran's service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. Here, as the Veteran is presumed sound as to asthma, the Board will next consider service connection for the condition under the presumptive criteria of § 3.320. As noted above, the Veteran served in Saudi Arabia during the Persian Gulf War; thus, he meets the service requirements of § 3.320. The record does not reflect a diagnosis of asthma during the Veteran's service and the evidence is in approximate balance that asthma became manifest within 10 years from the Veteran's date of separation from service. There is not affirmative evidence that asthma was not incurred during or aggravated by a qualifying period of service, that it was caused by a supervening condition or event that occurred between the Veteran's most recent departure from a qualifying period of service and the onset of the disease, or that it is the result of the Veteran's own willful misconduct. Accordingly, as the Veteran is presumed sound as to asthma, has a diagnosis of asthma that manifested within 10 years of service separation, and had qualifying service in the Southwest Asia theater of operations, the presumptive criteria under § 3.320 are met and service connection for asthma is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 50 percent for PTSD, is remanded. The Veteran contends that he is entitled to an initial rating in excess of 50 percent for his service-connected PTSD. The Veteran was most recently provided with a VA examination for his PTSD in August 2016. During the March 2021 hearing, the Veteran reported that his PTSD has worsened in the five year since this examination. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As this evidence suggests that the Veteran has experienced a worsening in symptoms, a VA examination must be scheduled to assess the current severity of the symptoms of the Veteran's disability. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that he is entitled to service connection for sleep apnea. However, upon review of the record, the Board finds that a VA examination must be scheduled to determine the etiology of the Veteran's condition. The Veteran has not been provided with a VA examination for this claim. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79. The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. In this case, July 2017 medical records note that the Veteran underwent a sleep study and was diagnosed with sleep apnea. Further, VA received a letter from the Veteran's wife in May 2021 in which she explained that she has "been keenly aware of his sleeping habits before and after his service in Desert Storm." She stated that there are "times in the night where he stops breathing for several minutes at a time" and that this "disturbing trend began after his return from fighting in the war." She stated that "this was not the case prior to his overseas deployment." As this evidence reflects that the Veteran has a current disability which may be associated with service, a VA examination must be scheduled to determine the etiology of the condition. 3. Entitlement to service connection for a gastrointestinal condition is remanded. 4. Entitlement to service connection for bilateral pes planus is remanded. The Veteran contends that he is entitled to service connection for a gastrointestinal condition and bilateral pes planus. When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). As discussed above, VA has received new and material evidence to reopen the Veteran's claims for entitlement to service connection for a gastrointestinal condition and bilateral pes planus. Thus, these matters must be returned to the RO to consider this new and material evidence and decide the merits in the first instance. Id. at 399. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from December 2018 to the present. 2. After completing the development in item 1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. After completing the development in item 1, schedule an examination with an appropriate clinician for the Veteran's claim for service connection for sleep apnea. The reviewing clinician should be requested to provide an opinion (based on a review of the record) to answer the following: Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's sleep apnea was incurred in service or is otherwise related to an in-service injury, disease, or event? The examiner is asked to address the Veteran's testimony at the March 2021 hearing regarding sleep symptoms in service and lay statements provided by the Veteran's wife in which she described the readily observable symptoms of the Veteran's sleep disturbances. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After completing the development in item 1 and any other needed development, readjudicate the issues of entitlement to service connection for a gastrointestinal condition and for bilateral pes planus in light of the new and material evidence. If any benefit sought on appeal is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the file is returned to the Board for appellate consideration. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.