Citation Nr: 22014601 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-21 724 DATE: March 14, 2022 ORDER New and material evidence having been received, the appeal to reopen the previously denied claim of service connection for asthma is granted. Service connection for asthma is granted. REMANDED Service connection for asbestosis is remanded. FINDINGS OF FACT 1. A July 1992 Board decision denied service connection for asthma due to no evidence of aggravation; evidence received since that time (including the Veteran's testimony at the April 2021 Board hearing and July 2021 private medical opinion) relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 2. The probative evidence of record including the Veteran's testimony (which the Board finds to be competent and credible) and multiple private medical opinions are in favor of a finding that the Veteran's pre-existing condition of asthma was aggravated beyond its natural progression as a result of his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening of the claim for service connection for asthma. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for asthma have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2015 and February 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, a Board hearing was held before the undersigned Veterans Law Judge. A copy of the transcript is associated with the file. 1. New and material evidence having been received, the appeal to reopen the previously denied claim of service connection for asthma is granted. Legal Criteria As a threshold matter, the Board must determine if new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. To reopen a claim, "new and material evidence" must be added to the record. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. To be considered "material," the evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). This means that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence must be added to the record since the time that the claims were finally disallowed on any basis (that is, including a denial of reopening) not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO has been properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. § § 5108, 7105(c)). Factual Background In August 1990, the RO denied the Veteran's claim for service connection for asthma because the evidence indicated that it was a preexisting condition that was not permanently aggravated during service. The Veteran appealed and, ultimately, a July 1992 Board decision denied service connection for asthma due to no evidence of aggravation. This decision became final. Evidence received since the July 1992 Board decision include the Veteran's testimony at the April 2021 Board hearing and a July 2021 private medical opinion from a physician who opined that it was more likely than not that the Veteran's asthma was significantly aggravated by his active-duty service. Analysis The post-decision Board hearing testimony and July 2021 private medical opinion constitute "new" evidence because they were not previously submitted to VA. The Board finds that the medical treatment notes and April 2017 statement are also "material" and therefore are sufficient to reopen the claim for service connection for asthma. For evidence to be material in this case it would have to "tend to show" that the Veteran's pre-existing asthma was aggravated by his service. 38 C.F.R. § 3.156(a). The new evidence tends to show that the Veteran's pre-existing asthma was dormant prior to entering service and flared up several times during service. This evidence tends to show that the Veteran's pre-existing asthma was aggravated by his service. Therefore, the additional evidence received is both new and material, and the claim for service connection for asthma may be reopened. 38 U.S.C. § 5108. 2. Service connection for asthma is granted Legal Criteria Generally, direct service connection may be established for a disability resulting from a disease, injury, or event, incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). In deciding an aggravation claim, the Board must determine, after having found the presence of a preexisting condition, whether there has been any measurable worsening of the disability during service and whether such worsening constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). If the presumption of aggravation under § 1153 arises, clear and unmistakable evidence (obvious or manifest) is required to rebut this presumption. See 38 C.F.R. § 3.306 (b). Factual Background The Veteran's entrance examination was absent for any reports of asthma or respiratory conditions. However, an October 1972 medical treatment note indicates that the Veteran had history of many allergies as a child but had no symptoms since 1968. In August 1970 during basic training, the Veteran had an episode of shortness of breath which cleared up before medical treatment was sought. See service treatment records. In October 1972, the Veteran had an onset of respiratory infection symptoms with a cough producing yellow sputum. The Veteran developed dyspnea and reported to the Main Navy Dispensary for treatment. Examination of the Veteran's lungs revealed inspiratory wheezes in all lung fields but was otherwise unremarkable. See service treatment records. In January 1973, the Veteran reported asthma attacks. It was noted that the Veteran had slight swelling and redness in the back of his throat. In March 1973, the Veteran reported a burning feeling in chest for two days and that he had a congested feeling in his lungs. In February 1974, the Veteran reported chest pain and shortness of breath. In March 1974, the Veteran reported nasal and chest congestion. In May 1974, the Veteran reported a sore throat. It was noted that the tonsils were swollen and red. See service treatment records. At a May 1991 VA examination, the conducting physician indicated that the Veteran had asthma since childhood, but it was worse after joining the Navy. The Veteran was diagnosed with a long history of bronchial asthma. An April 2010 asbestos evaluation indicates that during service, the Veteran lived on a ship and was frequently around pipes and boilers which were insulated with asbestos. The Veteran submitted a May 2015 private medical opinion from his pulmonologist who explained that the Veteran has a history of asthma and asbestos exposure while in the Navy. The pulmonologist further explained that the Veteran's asthma is exacerbated by certain triggers and was relatively inactive until he enlisted. The pulmonologist opined that it was more likely than not that the Veteran's military career caused or contributed to his lung disease. The Veteran submitted a statement from his sister who reported that the Veteran had his first asthma attack at the age of nine. She further reported that when the Veteran was 15 years old, he came home from Johns Hopkins excited about the fact that he no longer had asthma. The Veteran's sister explained that the Veteran was able to participate in sports without any incident. She further explained that the Veteran reported to her that he experienced an asthma attack during service. The Veteran also submitted a statement from a childhood friend who explained that the Veteran could not wrestle when he was in eighth grade due to his asthma. The Veteran's friend explained that the Veteran's asthma went away the following year and he was able to join the wrestling and basketball teams. The Veteran also submitted a statement from his mother who explained that the Veteran was diagnosed with bronchial asthma at the age of nine and was involved in a case study researching the possible triggers that caused his asthmatic events. The Veteran's mother further explained that the Veteran could not participate in any physical activities because it would trigger an asthma attack. The Veteran's mother reported that the Veteran had asthma attacks when he consumed certain foods. The Veteran's mother explained that they started to adjust the Veteran's diet to avoid certain foods and that, when he was fifteen, they were told by the doctors at Johns Hopkins University that he no longer had asthma. Subsequently, the Veteran was able to participate his physical activities such as basketball, football, baseball, wrestling and track and field. The Veteran's mother explained that during the Veteran's military service, she was told that the Veteran experienced a bad asthma attack and underwent extensive treatment for his asthma. At a February 2020 VA examination, the conducting physician indicated that the Veteran's respiratory condition (to include asbestosis and asthma) had its onset in 1974. The physician stated that the Veteran began having asthma attacks during active duty. The physician opined that there was no evidence that the Veteran's asthma was aggravated beyond its natural progression by an in-service injury or disability. The Veteran testified at the Board hearing that he had asthma as a child which became dormant when he was 15 years old. The Veteran testified that he had no issues during basic training, but his asthma was triggered after he went to the Anacostia Naval Station. The Veteran testified that he had several asthma attacks during service. The Veteran further testified that he was exposed to asbestos during service. The Veteran explained that he has to take Prednisone four times a week when he feels an asthma attack coming on. In July 2021, the Veteran submitted a private medical opinion who indicated that the Veteran had a long history of allergies and asthma as a child but was asymptomatic from at least 1968 through 1972. The physician noted that the Veteran had several episodes of asthma attacks, chest congestion and shortness of breath. The physician indicated that the Veteran's medications included albuterol inhaler and occasionally requires albuterol nebulizer, Symbicort, and Combvient. The physician also noted that the Veteran required a course of oral corticosteroids in August 2020. The private physician noted that the February 2020 VA examiner had erroneously stated that the Veteran does not require corticosteroid or oral bronchodilator medications. The physician opined that the Veteran's preexisting asthma was greatly aggravated by his active-duty service, which was evidenced by the fact that his childhood asthma was relatively dormant from 1968 to 1972, became active during the Veteran's basic training (requiring hospitalization), and flared up whenever the Veteran developed an upper respiratory infection or was exposed to high levels of dust and asbestos, which was documented by the multiple annotations in his military medical records. The physician further opined that the Veteran's asbestos exposure aggravated his asthma as an occupational irritant. Analysis The Board finds that although the entrance examination report indicates that the Veteran did not have pre-existing asthma, the most probative evidence in the record, including the Veteran's service treatment records, buddy statements, and post-service medical records consistently report childhood asthma. Therefore, the evidence clearly and unmistakably demonstrates that that the Veteran had childhood asthma that preexisted service and was asymptomatic (or dormant) for several years before he joined the military. As such, the first prong of the presumption of soundness in rebutted, and the Veteran's condition on entry into service is not presumed sound for purposes of service connection for asthma. Having rebutted the presumption of soundness based on a preexisting condition (asthma), the question that follows is whether the Veteran's asthma clearly and unmistakably was not aggravated beyond the natural progress of the disease in service. The Board cannot assign probative value to the February 2020 VA examiner's opinion that the Veteran's asthma was not aggravated beyond its natural progression by his military service because they did not support their opinion with an adequate rationale and because the opinion was based on an inaccurate factual premise. The examiner also erroneously stated that Veteran does not require corticosteroid or oral bronchodilator medications and that his condition of asthma did not have its onset until 1974. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board assigns significant probative value to the May 2015 and July 2021 private medical opinions indicating that the Veteran's preexisting asthma was aggravated beyond its natural progression during service because they supported their opinions with rationales. The Board also finds the Veteran competent and credible to testify that his asthma was dormant prior to entering into service and that he experienced several episodes of observable asthma attacks during service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In light of the May 2015 and July 2021 private medical opinions and the Veteran's hearing testimony, the Board is unable to find that there is clear and unmistakable evidence to rebut the presumption of aggravation. The Board finds that the Veteran's asthma was presumptively aggravated during his active-duty service because there was an increase in severity and no clear and unmistakable evidence that this increase was due to the natural progression of asthma. Service connection is therefore warranted on the basis of aggravation of a preexisting condition and the appeal is granted. REASONS FOR REMAND Service connection for asbestosis is remanded. An April 2010 asbestos evaluation indicates that the Veteran has a diagnosis of pulmonary asbestosis. The conducting physician indicated that, during service, the Veteran lived on a ship and was frequently around pipes and boilers which were insulated with asbestos. The physician also indicated that the Veteran had significant post-service occupational asbestos exposure when he worked as a laborer and shipfitter from 1978 to 1981. The Veteran was afforded a February 2020 VA examination during which the conducting physician indicated that there is no objective evidence consistent with a diagnosis of asbestosis. In July 2021, the Veteran submitted a private medical opinion from a cardiologist who indicated that the Veteran had exposure to asbestos during and after service. The physician opined that it was more likely than not that the Veteran's asbestosis was directly related to his long-term exposure during service. The Board cannot assign probative value to February 2020 VA examiner's opinion because they stated that there was no objective evidence consistent with a diagnosis of asbestosis, without accounting for the April 2010 diagnosis of asbestosis. See Barr supra. However, the July 2021 private medical opinion does not provide enough evidence to grant the claim at this time. The opinion does not differentiate between the Veteran's asbestos exposure during service and his occupational exposure to asbestos after service. Furthermore, the April 2010 asbestos evaluation indicates the Veteran had "significant post-service occupational asbestos exposure" (emphasis added). Accordingly, the Board finds that further development is necessary to assist the Veteran in developing his claim and this matter must be remanded. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for a VA examination with an appropriate examiner for the purpose of preparing an opinion on whether the Veteran's diagnosed asbestosis is causally related to his active service. 3. Opine whether it is least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's asbestosis, is related to service, including as a result of his acknowledged asbestos exposure DURING service. The examiner should also consider the Veteran's post-service exposure while working as a laborer and shipfitter from 1978 to 1981. The examiner should differentiate between his period of in-service asbestos exposure and post-service occupational asbestos exposure. The examiner should review the claims file and should take into account all evidence of record, to include both the lay and medical evidence. [CONTINUED ON NEXT PAGE] A complete rationale must be provided for all opinions and conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.