Citation Nr: 22018347 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-39 057 DATE: March 29, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a lung condition is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a lung condition is remanded. Entitlement to a compensable disability rating for service-connected bilateral (left and right ear) hearing loss is remanded. FINDINGS OF FACT 1. The Veteran originally filed a claim for service connection for a lung condition in September 2006, which was denied by the local regional office (RO) in an April 2007 rating decision. 2. In May 2007, in response, he filed a Notice of Disagreement (NOD) to initiate an appeal of that decision, and the RO resultantly provided him a Statement of the Case (SOC) in August 2007, but he did not then complete the steps necessary to "perfect" his appeal to the Board by also submitting a timely Substantive Appeal (VA Form 9 or written equivalent). 3. However, additional evidence since submitted or otherwise obtained, when considered with the record, as a whole, is not cumulative and redundant of the evidence of record at the time of that last prior final and binding denial of this claim and raises a reasonable possibility of substantiating it. CONCLUSIONS OF LAW 1. The April 2007 rating decision that earlier considered and denied the Veteran's claim for service connection for a lung condition is final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to June 1972. In December 2021, the Veteran testified in support of these claims during a hearing at the local Regional Office (RO) before the undersigned Veterans Law Judge of the Board, in other words at a Travel Board hearing. A transcript of the proceeding is of record. There is new and material evidence to reopen the claim of entitlement to service connection for a lung condition Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, according to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed unless inherently incredible (patently false or untrue) or beyond the competence of the person making the assertion. See Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis, so irrespective of whether on the underlying merits or, instead, a prior petition to reopen the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. The Board must independently consider the question of whether new and material evidence has been received to reopen the claim, irrespective of what the RO determined concerning this, because this initial determination goes to the Board's jurisdiction to reach the underlying claim to adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). If the Board finds that no such evidence has been submitted, then that is where the analysis must end irrespective of what the RO determined because further analysis of the claim is neither required nor permitted. Conversely, if the Board determines that the evidence submitted is both new and material, it must reopen the claim and evaluate it in light of all the evidence. Justus, 3 Vet. App. at 512. In this case at hand, the Board finds that the required new and material evidence has been submitted since the last final and binding denial of this claim to permit reopening it. 38 C.F.R. § 3.156(a). The Veteran's claim for service connection for a lung condition was denied in an April 2007 rating decision because the evidence then of record failed to show this claimed condition either was incurred in or caused by the Veteran's service. Although he initiated an appeal of that earlier decision by filing a timely NOD in May 2007, after receiving an SOC he did not then in response also file a timely Substantive Appeal (VA Form 9 or equivalent written statement). See 38 C.F.R. § 20.200 (2018). Thus, that earlier decision is a final and binding determination concerning this claim. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2018). However, the Veteran more recently testified during his December 2021 hearing before this Board that, while stationed at Camp Lejeune, he had to work in a building referred to as the "gas chamber" approximately 13 times, which contained government-grade tear gas. Whenever required to work in that building, he had a litany of symptoms including difficulty breathing and a burning sensation in his lungs. After complaining to the corpsman about these breathing issues, he was provided Benadryl, but that was only a temporary alleviation and eventually his breathing difficulty precluded him from participating in physical training (PT). This additional evidence is new and material to the claim since not before the local RO when it previously considered and denied this claim, and this evidence is not cumulative or redundant of the evidence that was and suggest the Veteran had relevant symptoms and impairment during his service that might account for any current respiratory condition. This additional evidence therefore also raises a reasonable possibility of substantiating this claim since, as mentioned, the Court has held that the law should be interpreted to enable reopening of the claim, rather than a preclusion to it. See Shade, 24 Vet. App. at 117. Therefore, in this sense this evidence also is material. Accordingly, this claim for service connection for a lung condition must be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. But this claim requires further development before being re-adjudicated on its underlying merits, meaning on a de novo basis, so the Board is remanding it back to the Agency of Original Jurisdiction (AOJ), i.e., back to the RO. REASONS FOR REMAND 1. Entitlement to service connection for a lung condition is remanded. 2. Entitlement to a compensable disability rating for service-connected bilateral hearing loss also is remanded. The Veteran asserts the severity of his bilateral hearing loss warrants a higher rating. He most recently had a VA compensation examination in December 2016 concerning this disability, so over 5 years ago. Importantly, he testified during his more recent December 2021 hearing before this Board that his hearing acuity has worsened appreciably since the last VA compensation examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). While a new examination is not required simply because of the mere passage of time since the last examination, precedent cases and VA's General Counsel have indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Thus, when considering the Veteran's December 2021 hearing testimony, the Board finds that a new VA examination is needed reassessing the severity of his bilateral hearing loss. Regarding his claim for service connection for a lung condition, the Veteran has not been provided a VA examination for a medical opinion concerning this other claimed disability particularly in terms of whether it is related or attributable to his military service. VA's duty to assist includes providing a medical examination for an opinion when needed to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran has a current diagnosis of asthma, and there is at least suggestion it may be due to his military service especially when considering the symptoms that he says he had during his service when put in certain situations. See, e.g., December 2021 Board Hearing Transcript. As such, the Board finds it necessary to remand this claim to have him undergo a VA compensation examination for a medical nexus opinion concerning the etiology of this condition. McLendon, 20 Vet. App. at 79. Furthermore, in October 2016, the Veteran submitted a VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), identifying a private medical facility, Cleveland Metro Hospital, where he had been treated. A preliminary review of the claims file, however, shows the request to try and obtain these additional treatment records was rejected due to incomplete private healthcare provider (PHP) information. See October 2016 Medical Records Request Reject Notice. However, to date, there has not been any attempt to obtain the needed additional information and records from Cleveland Metro Hospital. Moreover, although the Veteran already, as required, submitted a VA Form 21-4142 providing information for Cleveland Metro Hospital, this form expires a year after it is signed, so the authorization form currently of record is no longer valid. See VA Form 21-4142 (noting authorization and consent ends 12 months from date of signature). Accordingly, he must be notified that he must complete and sign a new release form to allow VA to request these confidential private medical records on his behalf. Finally, the record on appeal also shows the Veteran receives ongoing treatment from VA. But the most recent VA treatment records in the file are from May 2018, so from nearly 4 years ago. Therefore, all more recent VA treatment records also must be obtained and associated with the claims file so they, too, may be considered. Accordingly, these claims are REMANDED for the following action: 1. Obtain VA treatment records from May 2018 onwards. Follow proper VA procedures, and appropriately notify the Veteran and his representative if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). Ensure that all VA treatment records associated with the claims file are complete. 2. Also ask the Veteran to complete and submit another VA Form 21-4142, Authorization and Consent to Release Information to VA, for each private health care provider from whom he would like VA to obtain records, including, but not limited to, the health care provider he already listed on the VA Form 21-4142 in October 2016 (Cleveland Metro Hospital). Inform him that his prior VA Form 21-4142 since has expired and, therefore, no longer can be used to obtain the records he identified as relevant, hence, the reason he needs to again complete and submit another VA Form 21-4142. Also ask that he submit any relevant records he has in his personal possession. 3. After obtaining all additional treatment or other records pertinent to these claims, arrange for the Veteran to undergo a VA audiological examination to reassess the severity of his bilateral hearing loss. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran's lay assertions, and undertake all indicated testing and evaluation. In reassessing the severity of this disability, the examiner is asked to address the extent to which the consequent functional impairment impairs the Veteran's ability to meet the demands of a substantially gainful job, whether sedentary or physical, and the timeframe in which this impairment arose. 4. Also schedule a VA examination with an appropriate VA clinician to determine the nature and etiology of the Veteran's lung condition. A copy of this remand and all relevant medical and other records should be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. All testing and evaluation indicated by the current Disability Benefit Questionnaire (DBQ) format must be done to ensure the opinion provides the information needed. Based on a review of the results of the Veteran's physical examination, his statements regarding the development and treatment of the condition, and review of the claims file, the examiner should answer the following questions: Is it at least as likely as not (50 percent probability or greater) the Veteran's lung condition began during his service from June 1970 to June 1972 or is otherwise related or attributable to a disease, an event, or an injury in service, including to his assertion of repeated exposure to government-grade tear gas? When responding, whether favorably or unfavorably, the examiner must discuss the rationale for all medical opinions or conclusions preferably citing to findings or other supporting evidence in the file and/or accepted medical authority. The mere absence of evidence of treatment for this claimed disability in the Veteran's service treatment records (STRs) cannot, at least alone, be the sole or exclusive reason for disassociating this claimed condition from his service, although this can be a consideration (so factor in this determination) if explanation is provided as to why there reasonably should be this expectation in the STRs or sooner in the records since service before initial indication. The examiner is also advised that the Veteran is competent to report his symptoms and history, and his reports must be specifically considered in formulating all opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason or explanation for doing so. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.