Citation Nr: 22018202 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-46 222 DATE: March 28, 2022 REMANDED The issue of entitlement to service connection for a lung condition, to include as secondary to gastroesophageal reflux disease is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1992 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in August 2021. Appellants are entitled to initial review by the Agency of Original Jurisdiction (AOJ) of evidence added to the file by VA, and waiver of such review may not be presumed. See 38 C.F.R. § 20.1305. Additional evidence has been added to the file by VA since the August 2017 Statement of the Case (SOC) related to the claim. The Veteran has not submitted a waiver of initial consideration of the new evidence by the AOJ. An attempt to obtain a waiver was sent to the Veteran in January 2022, but the applicable time period has lapsed without a response. Therefore, the AOJ must be given an opportunity to consider this evidence and properly adjudicate the claim. Additionally, a new medical opinion is needed to address the Veteran's contentions that his exposure to burn pits while in Somalia caused his asthma. In June 2017, a VA examiner diagnosed the Veteran with asthma and found it less likely than not that his condition was related to his service. The examiner's opinion was based, in part, on the service treatment records which did not identify the presence of asthma and the lack of such records within one year of his separation from service. However, the Board notes that the absence of such records is not necessarily fatal to the Veteran's claim. Indeed, service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). As drafted, it is unclear whether the examiner's opinion was based solely on the absence of treatment records, or whether the nature and progress of the disease is such that treatment records would exist if the Veteran's asthma began during service; and the absence of these records indicates that the Veteran's asthma is not related to service. Accordingly, a new medical opinion must be obtained. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matter is REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether the Veteran's lung condition had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. The examiner is asked to address the Veteran's contention that he was exposed to burn pits in service. The examiner should also indicate whether the medication the Veteran uses to treat his service connected disabilities has (A) caused or (B) aggravated GERD beyond its normal progression, and if so, whether GERD has (A) caused or (B) aggravated his asthma. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record since the SOC. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.