Citation Nr: 22012880 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 17-66 828 DATE: March 7, 2022 ORDER New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for asthma is granted. Entitlement to service connection for asthma is granted. FINDING OF FACT 1. In an October 2014 rating decision, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for asthma. 2. Evidence added to the record since the October 2014 rating decision is not cumulative or redundant of evidence of record at the time of the prior decision and raises a possibility of substantiating service connection for asthma. 3. The Veteran's asthma is related to his active military service. CONCLUSION OF LAW 1. As new and material evidence has been received since the issuance of a final October 2014 rating decision, the criteria for reopening the claim for service connection for asthma are met. 38 U.S.C. § 5108, 38 C.F.R. § 3.156. 2. Asthma was incurred in active duty. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102. 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1997 to March 1997 and August 2002 to July 2003. The matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) RO. New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); see also Evans v. Brown, 9 Vet. App. 273, 285 (1996); Justus v. Principi, 3 Vet. App. 510 (1992). A December 2007 rating decision denied service connection for asthma because there was no evidence of a diagnosed condition. The Veteran did not appeal this decision, nor was any new and material evidence submitted in the subsequent year. In June 2014, the Veteran filed a new claim for service connection for asthma. The RO denied reopening the claim in an October 2014 rating decision. The Veteran did not appeal this decision, nor was any new and material evidence submitted in the subsequent year. In May 2017, the Veteran filed a new claim for service connection for asthma. Evidence submitted since the last final denial includes VA treatment records, private treatment records, VA examination, and a transcript of hearing transcript. Upon a review of the aforementioned evidence, the Board finds that the VA examination is new and material evidence. This evidence is new because it was not previously submitted, and it is not redundant of evidence already of record. The evidence is material because it contains a diagnosis of asthma. Given such, reopening the claim is in order, as the evidence is new and material. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternately, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Certain chronic diseases, including arthritis, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran contends his asthma started in service in 2002. During his July 2017 VA examination, the examiner found a diagnosis of asthma starting in 2002. See July 2017 VA Respiratory Conditions Disability Benefits Questionnaire (DBQ). As such, the Board finds that the Veteran meets the first element of service connection. During service, the Veteran's post-deployment questionnaire notes that he started having trouble breathing during his second deployment from 2002 to 2003. See June 2003 Service Treatment Record (STR) Post-Deployment Health Assessment. In addition, the Veteran's private physician noted in March 2007 that he has been treating the Veteran for five years for asthma. See March 2007 STR Private Intermountain Health Care Note. The Board is aware that the Veteran asserted that his asthma worsened during service on his post deployment assessment. See STR Post-Deployment Health Assessment. This is not shown by pre-service records, however. Of particular note, as shown in the STRs, the Veteran did not report asthma or any other lung condition during his enlistment, and no such abnormalities were otherwise mentioned in the reports of his examinations. Furthermore, there is no medical record to support a finding that asthma pre-existed his 2002 to 2003 active duty service. The first notation of asthma was asserted in the 2003 post-deployment assessment. Therefore, there is no evidence to support that this condition is pre-existing and has worsened due to service. The STRs are devoid of evidence suggesting pre-service asthma, and while the post-deployment assessment asserts worsening of his asthma suggesting a rebuttal of the presumption of soundness, the accompanying statement indicates the opposite finding quite unambiguously. Viewing this evidence in total, the Board finds not only that the presumption of soundness has not been rebutted but also that it is actually more likely than not that the Veteran was sound at entry into service, in terms of asthma. The Veteran may have had asthma symptoms prior to deployment, but he lacks the medical training and credentials to ascertain that any diagnosis was present at entry into service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In short, there is insufficient evidence to rebut the presumption of soundness at entry into service, as defined by 38 U.S.C. § 1111, and the Veteran will accordingly be presumed to have been sound in terms of asthma at entry into service. The July 2017 VA examiner opined that the Veteran's asthma was less likely than not incurred in or caused by claimed in-service injury, event, or illness. The examiner stated that after reviewing the Veteran's military medical records of January 1997 to March 1997, there was no evidence of asthma. The Veteran denied asthma during his entry physical examination in January 1997. See June 2017 VA Medical Opinion DBQ. The Board finds that this medical opinion is inadequate, as the examiner failed to address the Veteran's second period of active duty service from 2002-2003. The Board finds that the evidence of record, overall, supports finding that the Veteran's asthma is related to service, given the favorable evidence and the shortcomings in the unfavorable June 2017 opinion. The claim is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.