Citation Nr: 22014516 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-09 730 DATE: March 14, 2022 ORDER Petition to reopen a claim of entitlement to service connection for asthma is granted. REMANDED Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a nervous condition was originally denied by an August 1979 rating decision. He did not submit a Substantive Appeal following the September 1980 Statement of the Case and the August 1979 decision became final. 2. Evidence received since the August 1979 rating decision is new and it is material as it relates to an unestablished fact necessary to substantiate the claim CONCLUSION OF LAW Evidence received since the August 1979 rating decision is new and material, and the Veteran's claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Army from November 1978 to May 1979. The Board finds that the appeal was improperly developed as an unappealed claim from the August 1979 rating decision. Specifically, the Veterans submitted a statement in April 1980 requesting it be considering a notice of disagreement. As such, new and material evidence is unnecessary to reopen or continue the claim. The Veteran testified at a Board hearing in November 2021 before the undersigned Veterans Law Judge. A transcript is associated with the record. Petition to Reopen In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 1. Petition to reopen a claim of entitlement to service connection for asthma. The August 1979 rating decision originally denied the Veteran's claim on the basis that the Veteran had asthma prior to entering service. The Veteran did not timely appeal that decision and it became final. Since the August 1979 rating decision, the Veteran testified at a Board hearing, and submitted statements in support of his claim. Combined with medical records, this new evidence shows that the Veteran's asthma may not have existed prior to service and if it did, was aggravated by his service. As such, new and material evidence has been received and the Veteran's claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. During the November 2021 Board hearing, the Veteran testified that he did not have asthma prior to entering service. He experienced mistreatment at the hands of his supervisor who teargassed him while in a small space. He was taken to the hospital to receive emergency treatment on multiple occasions after this event. Days after the hearing, he submitted a statement in support of his claim describing in detail how he was exposed to six cans of tear gas by his drill sergeant. He was unable to breathe and felt dizzy, all while the sergeant was assaulting him physically. He was taken to the hospital by ambulance and given emergency treatment. He was place back on duty the next day all the while still experiencing headaches, dizziness, and shortness of breath. He went back to the hospital for treatment. His drill sergeant targeted him again, placing him on duty in a storage facility without water or food, during the winter. He continued to experience shortness of breath, coughing, as well as hunger and thirst. After leaving service, his asthma worsened, and he suffered chronic attacks. Based on the foregoing, a VA examination is necessary to determine if the Veteran's asthma was aggravated by his service. The matters are REMANDED for the following action: Obtain an opinion addressing the nature and etiology of the Veteran's claimed chronic asthma. a. Did the Veteran's asthma clearly and unmistakably preexist service, and if so, was the disability clear and unmistakably NOT aggravated by service? b. If the examiner finds that the Veteran's asthma did not preexist service, the examiner is asked to provide an opinion as to whether it is directly due to service. Specifically, the examiner is asked to consider the Veteran's reports of exposure to tear gas and/or cold weather. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.