Citation Nr: 22018454 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-26 291 DATE: March 29, 2022 ORDER New and material evidence having been received, the application to reopen the claim for service connection for residuals of a dog bite, left hand is granted. New and material evidence having been received, the application to reopen the claim for service connection for an unspecified respiratory condition (claimed as breathing problems) is granted. REMANDED Entitlement to service connection for residuals of a dog bite, left hand is remanded. Entitlement to service connection for an unspecified respiratory disorder (claimed as breathing problems) is remanded. FINDINGS OF FACT 1. A final September 2013 rating decision denied service connection for residuals of a dog bite, left hand; newly received evidence raises a reasonable possibility of substantiating the claim. 2. A final September 2013 rating decision denied service connection for an unspecified respiratory condition (claimed as breathing problems); newly received evidence raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening the claim for service connection for residuals of a dog bite, left hand. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to warrant reopening the claim for service connection for an unspecified respiratory condition (claimed as breathing problems). 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from April 1998 to November 1999 and the United States Army from January 2010 to July 2012. The Veteran served in Afghanistan from February 2010 to November 2010. For his meritorious service, the Veteran was awarded, among other decorations, the Afghanistan Campaign Medal w/Campaign Star, the NATO Afghanistan Service Medal, and the Global War on Terrorism Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's November 2015 request for a decision review officer (DRO) hearing was withdrawn by the Veteran's attorney in December 2016, and the Veteran's June 2016 Board hearing request was withdrawn by the Veteran's attorney in January 2020. In May 2021, the Board remanded two service connection claims for dog bite residuals and a respiratory disorder for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon current review of the procedural history, the Board finds that these matters are more properly characterized as new and material evidence claims, and are assessed as such herein. New and Material Evidence A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence has been received to reopen the claim for service connection for residuals of a dog bite, left hand. The claim for service connection for residuals of a dog bite of the left hand was originally denied in a September 2013 rating decision based on a finding that there was no currently diagnosed disability. The Veteran did not file a notice of disagreement (NOD) to initiate an appeal with regard to this rating decision within one year of notification of the denial of service connection, or submit additional evidence on his behalf; therefore, it became final. In April 2015, the Veteran filed a request to reopen his claim for service connection for residuals of a dog bite of the left hand. In October 2015, the RO continued the denial of the claim. In November 2015, the Veteran filed a timely notice of disagreement (NOD) with the RO's decision. Since the September 2013 rating decision, the VA treatment records contain an August 2019 note that the Veteran had a bilateral tremor in his hands. This evidence suggests that there might be a neurological component to the Veteran's current hand disability. Ultimately, considering the low threshold required to reopen claims, this new evidence meets that standard. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for residuals of a dog bite of the left hand is reopened. 2. Whether new and material evidence has been received to reopen the claim for service connection for an unspecified respiratory condition (claimed as breathing problems). The claim for service connection for an unspecified respiratory condition (claimed as breathing problems) was originally denied in a September 2013 rating decision based on a finding that there was no currently diagnosed disability. The Veteran did not file a notice of disagreement (NOD) to initiate an appeal with regard to this rating decision or submit additional evidence within the one-year period; therefore, it became final. In April 2015, the Veteran filed a request to reopen his claim for service connection for an unspecified respiratory condition (claimed as breathing problems) related to environmental hazards of the Gulf War. In October 2015, the RO continued the denial of the claim. In November 2015, the Veteran filed a timely notice of disagreement (NOD) with the RO's decision. Since the September 2013 rating decision, the Veteran was afforded a VA examination in October 2015. Therein, the examiner documented the Veteran's reports of current respiratory symptoms. Ultimately, considering the low threshold required to reopen claims, this new evidence meets that standard. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for an unspecified respiratory disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an unspecified respiratory condition (claimed as breathing problems). The Veteran is seeking service connection for an unspecified respiratory condition (claimed as breathing problems) due to his exposure to environmental hazards while he served in the Gulf War. In October 2015, the Veteran was afforded a VA examination for respiratory conditions. The VA examiner concluded that the Veteran did not have a diagnosed respiratory condition. The Veteran was never formally evaluated and/or worked up by his PCP, Pulmonology, and/or ENT for his complaints, which would be most appropriate given his October 2015 PFT interpretation. The Veteran was advised to follow up with his PCP. In an April 2021 VA treatment record, it was noted that the Veteran had an oximetry study showing a very mild hypoxemia related to his sleep-disordered breathing. The Veteran was using oxygen therapy. In November 2021, a VA examination for the Veteran's sleep apnea was obtained. The Veteran was diagnosed with obstructive sleep apnea as of September 2019. The VA examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or a result of his military service to include in-service complaints of breathing problems. The VA examiner explained that the Veteran's claims file contained information related to sleeping difficulty, but the complaints noted were related to primary insomnia and not consistent with a sleep disordered breathing condition. The Veteran had a normal sleep study during military service in March 1999. It was not until following military service in 2015, that the Veteran was diagnosed with obstructive sleep apnea. Obstructive sleep apnea was due to collapse of upper airways during sleep, resulting in intermittent cessation of breathing. Overweight and obesity were the primary and major risk factors in the development of obstructive sleep apnea. It was documented in numerous claims file entries that the Veteran's body mass index (BMI) was either in the overweight or obese category of body habitus, and it was such BMI that was at least as likely as not the proximate cause for the Veteran's obstructive sleep apnea condition. Therefore, the Veteran's sleep apnea was less likely than not proximately due to or the result of his military service, to include in-service complaints of breathing. In November 2021, the Veteran was afforded a VA examination for respiratory conditions. The VA examiner noted that the Veteran had not been diagnosed with a respiratory condition. The Veteran reported that in approximately 2010, he had episodes of shortness of breath with exertion in addition to episodes of choking and gasping for air. He never had a diagnosis rendered. However, he had been treated by being given an albuterol inhaler which he sometimes used. The Veteran claimed to have had a pulmonary function test performed in 2015 during a previous compensation examination, and the results were reported as not reliable due to the Veteran having difficulty performing the test. The examiner concluded that due to a lack of supportive diagnostic test results, a diagnosis could not be rendered for a respiratory condition. Prior diagnostic testing had not proven definitive in providing diagnostic abnormalities, and the Veteran did not attend diagnostic testing scheduled due to stating that he was homebound. Therefore, the Veteran's claimed condition was less likely incurred in or caused by the claimed military service. The VA examiner opined that objective indication of a disability could not be identified. The examination was done through ACE protocol, telephone interview, and review of medical records. Prior diagnostic testing had not proven definitive in providing objective diagnostic abnormalities, and the Veteran did not attend diagnostic testing scheduled in November 2021 due to stating that he was homebound. From the above given VA examinations, it is not clear whether the Veteran has another respiratory disorder/breathing problem other than sleep apnea. More clarity is needed for the Board to decide this issue. Thus, a remand is warranted for a new VA examination to include a pulmonary function test to determine whether the Veteran has a respiratory disorder/breathing problem other than a sleep disorder or if any respiratory disorder, such as hypoxemia (VA treatment records showed that he had this) is related to his sleep disorder or to his military service to include environmental hazards of the Gulf War. Additionally, a new VA addendum opinion is needed for the Veteran's sleep disorder to determine if it is related to his exposure to environmental hazards of the Gulf War because this was not discussed in the November 2021 VA medical opinion. 2. Entitlement to service connection for residuals of a dog bite, left hand is remanded. VA treatment records show that the Veteran had private treatment through Cedar City Clinic for neurology, which is not of record. Another attempt should be made to obtain these records. Additionally, VA treatment records show that the Veteran has hand tremors. However, no VA examination has been conducted to determine the nature and etiology of the Veteran's left hand condition. A remand is warranted to obtain such VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and private treatment records and associate with the claims file. For private records, the RO should have the Veteran return and complete a VA Form 21-4142 for medical records pertaining to Cedar City Clinic regarding the Veteran's left hand condition. The Veteran should also be instructed to list on the form any other private medical facilities where he received treatment for any of his claimed disabilities. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. If possible, the Veteran should attempt to obtain the records himself. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory disorder that the Veteran may have. All necessary tests must be completed, including a pulmonary function test. If such tests cannot be performed, an opinion still must be rendered. A copy of this remand and the claims file must be completely reviewed. The VA examiner must consider the following: (a.) Identify any and all respiratory disorders that the Veteran has shown during the period on appeal. An April 2021 VA treatment record showed that the Veteran had an oximetry study performed showing a very mild hypoxemia related to his sleep-disordered breathing. The VA examiner must consider this and the fact that the Veteran used oxygen therapy. The VA examiner should determine whether the Veteran has hypoxemia and if it is a symptom of his sleep disorder or if it is a separate diagnosable disability. (b.) Is the Veteran's respiratory condition an undiagnosed illness OR a medically unexplained chronic multisymptom illness (diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue pain, disability out of proportion of physical findings, and inconsistent demonstration laboratory abnormalities)? See 38 C.F.R. § 3.317. (c.) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not that the Veteran's diagnosed condition is related to his active military service, to include exposure to environmental hazards of the Persian Gulf War and/or breathing or sleep problems in service? All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of evidence. 3. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's sleep apnea. If an opinion cannot be rendered without performing a VA examination, then a VA examination must be performed. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: (a.) Is it at least as likely as not that the Veteran's sleep apnea is related to his exposure to environmental hazards of the Persian Gulf War? All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of evidence. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his residuals of a dog bite of the left hand. All necessary tests must be performed. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: (a.) Identify any and all left hand conditions that the Veteran has, including any neurological manifestations thereof. (b.) Is it at least as likely that the Veteran's left hand condition related to his military service, to include dog bite? All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of evidence. With respect to all of the requested examinations, the examiners are advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. [CONTINUED ON NEXT PAGE] A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.