Citation Nr: 22019950 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-38 355 DATE: April 3, 2022 ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for allergies has been received. To this extent only, the claim is granted. Entitlement to service connection for hypothyroidism, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for allergies is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. An unappealed May 1993 rating decision denied service connection for allergies. 2. Evidence associated with the claims file since the May 1993 rating decision is new and material and raises a reasonable possibility of substantiating the issue of entitlement to service connection for entitlement to service connection for allergies. 3. The Veteran does not have hypothyroidism that was caused by his active service, including exposure to herbicides. CONCLUSIONS OF LAW 1. New and material evidence having been received, the criteria to reopen service connection for allergies have been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. 2. Hypothyroidism was not incurred or aggravated in service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to December 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 and a June 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In the January 2015 rating decision, the RO denied service connection for hypothyroidism and allergies. In the June 2016 rating decision, the RO denied service connection for sleep apnea. In correspondence date March 2021, the Veteran withdrew his request for a Board hearing. As such, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704. New and Material Evidence Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which 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. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis upon which the prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). 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 new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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. Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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. Id. at 118. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for allergies. A May 1993 rating decision denied service connection for allergies. The RO found that the evidence of record failed to show a chronic allergic condition during service. The Veteran did not perfect an appeal on this decision, and it became final as to the evidence then of record and is not subject to revision on the same bases. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (a), (b), 20.302, 20.1103. Since this decision became final, the Veteran has submitted additional lay evidence and private treatment records. This evidence reflects the Veteran was treated at an allergy clinic for a history of recurrent perioral allergic reaction with reoccurrence twice in the past eight months accompanied by throat tightness and shortness of breath, diagnosed as perioral edema in June 1993. Based on the foregoing evidence, the Board finds that the low threshold requirement for new and material evidence is satisfied with respect to the claim for allergies. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence is material because it relates to unestablished facts necessary to establish the claim, and the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156 (a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record it raises a reasonable possibility of substantiating the claims. See Shade, 24 Vet. App. at 117. Thus, the claim for allergies is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). VA has established a presumption of herbicide exposure applicable to veterans who served in Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). In order for service connection to be established by presumption, there must be an herbicide-presumptive disease and there must be evidence to substantiate actual exposure to an herbicide agent. The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The presumptive diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. See 38 C.F.R. § 3.309 (e). A disease associated with exposure to certain herbicide agents listed in § 3.309 will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service, provided that such disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a). 2. Entitlement to service connection for hypothyroidism, to include as due to exposure to herbicides. The Veteran asserts his hypothyroidism is due to active service, to include exposure to herbicides while in service. Specifically, he claims that he was exposed to sick Vietnamese people who were carriers of Agent Orange while on active duty in 1975 and that his subsequent sicknesses, to include hypothyroidism, were caused by this exposure. Initially, the Board notes that the Veteran's personnel records fail to confirm that he had service in the Republic of Vietnam or any other area recognized by the VA as an area where herbicide exposure might have occurred during the applicable time period. Additionally, hypothyroidism is not among the diseases for which the Secretary has determined that presumptive service connection is warranted based on herbicide exposure. See 38 C.F.R. § 3.309 (e) (2016). Thus, even assuming arguendo the Veteran was exposed to herbicides during active duty, there is no basis in the record of VA's regulations to presume service connection for the Veteran's claimed hypothyroidism. The Federal Circuit has held that when a claimed disorder is not warranted on a presumptive basis, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records are silent as to any complaints of, treatment for, or diagnosis of hypothyroidism. Post-service treatment records reflect formal diagnosis of hypothyroidism as early as July 2000. The Board concedes that the Veteran has current diagnoses of hypothyroidism, but none of his treatment providers has provided an opinion that any such disability is related to military service. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of any evidence linking the Veteran's claimed disability to service. The Board has considered the statements of the Veteran asserting that his claimed disability is related to his herbicide exposure in service. However, the Board finds that the Veteran is not competent to render such an opinion. While he is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish a diagnosis or etiology of his claimed disability, as that would require specialized knowledge or training, such as medical expertise, which he is not shown to have. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Given the extensive research by medical professionals in the area of herbicide-related diseases, whether any condition is related to such exposure is a complex question not subject to lay opinion evidence. Further, there is a no mention in VA treatment records of a relationship between exposure to Agent Orange and the Veteran's claimed disability, or any other evidence to suggest an etiological relationship between the Veteran's service and his current claimed disability. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for hypothyroidism. For the reasons explained in greater detail below, no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. A VA examination under the standards of McLendon is not warranted regarding the Veteran's claim for service connection for hypothyroidism. As to that claim, there is simply no evidence establishing an "in-service event" during active service, and there is no evidence of an indication that the current disability or current symptoms may be related to any alleged in-service event. In sum, the evidence of record is against a finding that the Veteran has hypothyroidism that had onset during or was caused by his active service. Hence, the appeal must be denied. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt provision does not apply. REASONS FOR REMAND 1. Entitlement to service connection for allergies. The Veteran asserts that his allergies began in service, to include being stung by a swarm of bees and several shots administered during service, resulting in chronic allergies since that time. VA treatment records show the Veteran was treated at an allergy clinic for a history of recurrent perioral allergic reaction with reoccurrence twice in the past eight months accompanied by throat tightness and shortness of breath, diagnosed as perioral edema in June 1993. Treatment records further note a diagnosis of perennial allergic rhinitis and chronic urticaria and angioedema in July 2000, idiopathic angioedema and hives in March 2004, acute sinusitis and allergic rhinitis in July 2006, and chronic allergic rhinitis in August 2011. Service treatment records note possible allergic rhinitis in May 1977, nasal rhinitis and congestion in summer months in July 1989; allergies in Sept 1989 and September 1990; allergic reactions in September 1990, May 1991, and February 1992. His service treatment records further reflect that he experienced allergic reactions, and he was seen at the allergy clinic for an allergic reaction in April 1992. To date, the Veteran has not been afforded a VA examination for this claimed disability. As the low threshold of the McLendon standard has been met in this instance, the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. McLendon, 20 Vet. App. 79. 2. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea is related to his active service. In a June 2016 statement the Veteran asserts that his sleep apnea began during his 20 years of service. In the alternative, he contends his sleep apnea is caused by or aggravated by his service-connected posttraumatic stress disorder (PTSD). VA treatment records show a January 2016 sleep study and a diagnosis of mild obstructive sleep apnea in February 2016. Given the Veteran's lay statements and his current diagnosis of sleep apnea supported by a sleep study, the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. McLendon, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any allergy disorder. The entire claims file to include this remand should be made available to, and reviewed by, the examiner, and such review should be noted. Following all necessary testing the clinician should address the following: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any current allergy disorder had its onset in, or is otherwise related to, the Veteran's military service, to include bee stings or shots/vaccines which occurred in service? In providing this opinion, the examiner should consider and address the Veteran's service treatment records which list multiple allergic reactions and allergy treatment as well as the Veteran's lay statements regarding continuity of symptomology. A complete rationale for all opinions must be offered and provided. 2. Obtain a VA medical opinion regarding the etiology of the Veteran's sleep apnea. The entire claims file should be made available to, and reviewed by, the examiner, and such review should be noted. After reviewing the entire claims file, the examiner should address the following inquiries: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea had its onset in, or is otherwise related to, the Veteran's military service? (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was proximately due to, or aggravated by, his service-connected PTSD? (Aggravation of a nonservice-connected disability is any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease). For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In providing this opinion, the examiner should consider and address the medical articles submitted by the Veteran entitled: CHEST: Apnea Elevated in Vets with PTSD by Crystal Phend. A complete rationale for all opinions must be offered and provided. Neely M. Peden Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.