Citation Nr: 22014009 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-06 413 DATE: March 11, 2022 ORDER New and material evidence having been received, the claim for entitlement to service connection for asthma is reopened, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. An October 1985 rating decision denied the Veteran's claim for service connection for asthma; the Veteran did not appeal this decision, and it became final. 2. The evidence associated with the claims file following the October 1985 rating decision is new and material to the Veteran's claim for service connection for asthma. CONCLUSIONS OF LAW 1. The October 1985 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160. 2. New and material evidence has been received to reopen the claim for service connection for asthma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1978 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a November 2021 videoconference hearing, and a transcript of this hearing is associated with the claims file. 1. New and material evidence having been received, the claim for entitlement to service connection for asthma is reopened, and the appeal is granted to this extent only. The Veteran's claim for service connection for asthma was denied in an October 1985 rating decision. The Veteran did not appeal this decision and it became final. The Veteran filed multiple claims to reopen his service connection claim for asthma, which was denied most recently in an April 2013 rating decision. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's claim for service connection for asthma was originally denied in October 1985 on the basis that the evidence showed the Veteran reported experiencing hay fever during his entrance examination and did not show any event, disease, or injury in service that would have caused or aggravated the Veteran's asthma. In connection with the Veteran's claim to reopen, he testified during the November 2021 hearing that he began experiencing asthma-related symptoms during basic training and his follow-on training at Fort Benning. He described experiencing chills, shortness of breath, difficulty catching his breath, and a fever, mentioning that he originally thought he had a cold. He went to sick call a few times and was confined to the barracks at one point with a fever. He was never diagnosed with asthma and his symptoms were attributed to a cold. However, the Veteran said he continued to experience asthma-related symptoms throughout his service. The Veteran attributes his asthma to multiple factors, including extreme hot and cold, physical activity, smoke, stress, and sleep apnea. He explained that the weather in Georgia was both very hot and very cold, even snowing while he was there. The Veteran said his drill sergeant decided they should do a cold weather run in their t-shirts, and he became sick after that run. He also stated he did seek treatment within a year of leaving active duty and was treated throughout his time in the Army National Guard, including while on drilling status. He also reported that when he was activated for two weeks and sent to Italy, he had such bad asthma attacks that he was confined to the barracks and ended up getting a reduction in rank because he could not perform his duties during that period. As for having a family history of asthma, the Veteran explained that his mother does have asthma, but none of his four siblings have asthma, and he did not have asthma prior to service. The Veteran's hearing testimony indicates that he did not have asthma or asthma-related symptoms prior to service. Additionally, the Veteran's testimony indicates that he sought treatment for asthma within one year of his deactivation from active duty. The Board finds that the Veteran's hearing testimony is new, having been received after the most recent April 2013 rating decision, and material as it goes towards the questions of pre-existence and in-service illness, disease, or events. Therefore, the Board finds that new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). To this extent, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. As discussed above, the Veteran contends that his asthma began in service. The Veteran was afforded a VA examination in July 1985. The examiner noted the Veteran had a diagnosis of intermittent asthma. The Veteran also reported having seasonal hay fever during his August 1978 entrance examination. Additionally, the Veteran had been discharged from the Army National Guard due to asthma, which was considered a medical disability. The Veteran's VA records also showed he had a family history of asthma. The examiner stated there was no evidence showing the Veteran's asthma was incurred during or aggravated by his service. As noted previously, the Veteran submitted a written statement by childhood friend and fellow servicemember W.T.R. in which he states that the Veteran did not have asthma-related symptoms when they were kids and these symptoms appeared to begin during their service. Additionally, the Veteran provided hearing testimony stating he did not have any asthma-related symptoms prior to entering service. Furthermore, although he noted that although his mother has asthma, none of his four siblings have asthma, and he did not have asthma prior to entering service. After reviewing the record, the Board finds that the July 1985 examination is inadequate. The examiner indicated the Veteran stated he had hay fever on his August 1978 entrance examination, indicating that this was the same as saying he had asthma prior to service. The RO has also consistently found that the Veteran's listing of hay fever constitutes the pre-existence of asthma. However, the Board notes that while hay fever and asthma may both be respiratory conditions, they are separate conditions, as shown by them being listed separately on the August 1978 entrance examination. Thus, the examination was based on an inaccurate factual premise and is inadequate; a medical opinion based on an inaccurate factual premise has limited, if any, probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, the Veteran has provided more information on asthma-related symptoms he experienced during service which were not addressed by the examiner, as well as statements challenging the idea that his asthma pre-existed service. While the Veteran provided these more in-depth statements after his July 1985 examination, these statements must still be taken into consideration when determining the etiology of the Veteran's asthma. As such, the July 1985 examination is inadequate for this reason as well. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an examination with a qualified examiner, to include via telehealth if an in-person examination is not feasible, addressing the nature and etiology of the Veteran's asthma. The entire claims file must be provided to and reviewed by the examiner. The examiner is to provide a thorough, well-reasoned opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's asthma began during service or is otherwise related to his service. The examiner is to address the July 2012 written statement from W.T.R. as well as the Veteran's lay statements, to include his November 2021 hearing testimony. A thorough rationale must be provided for all opinions offered. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.