Citation Nr: 23005271 Decision Date: 01/27/23 Archive Date: 01/27/23 DOCKET NO. 18-26 408 DATE: January 27, 2023 ORDER New and material evidence having been received, the petition to reopen the Veteran's claim for service connection for chest pain, to include as secondary to coughing up blood, is granted|. REMANDED Entitlement to service connection for pulmonary edema is remanded. Entitlement to service connection for chest pain, to include as secondary to coughing up blood, is remanded. Entitlement to service connection for a disability manifested by coughing up blood is remanded. FINDINGS OF FACT 1. A December 2007 rating decision denied the Veteran's claim for service connection for chest pain. The Veteran was notified of the decision by letter of December 31, 2007. A notice of disagreement was not filed. The unappealed decision became final. 2. Evidence received since the December 2007 decision is neither cumulative nor redundant of the evidence of record at the time of the last final denial and relates to an unestablished fact necessary to substantiate a claim of service connection for chest pain. CONCLUSION OF LAW New and material evidence has been received since the December 2007 rating decision, denying service connection for chest pain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from November 2002 to November 2006. This case is before the Board of Veterans' Appeals (Board) from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at a September 2022 hearing. New and Material Evidence In December 2007, the AOJ denied entitlement to service connection for chest pain, citing the absence of evidence of a chronic lung disability either shown in service or related to service. Notice of the decision was sent the same month (12/14/2007 Rating Decision Narrative; 12/31/2007 Notification Letter). A notice of disagreement was not filed and the unappealed decision became file. 38 U.S.C. § 7105; 38 U.S.C. §§ 20.302, 20.1103. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For the purpose of reopening a claim, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the December 2007 decision, the Veteran has described the chest pain as also occurring as a result of excess coughing (05/11/2018 Form 9). Additionally, during his hearing, the Veteran provided a description of his chest pain as a burning sensation deep in his chest (09/26/2022 Hearing Transcript, pgs. 2 and 5). Also, since the December 2007 decisions, the Veteran's deployments to Kuwait & Iraq, with presumed toxic exposure, have been verified. A 2003 deployment to Kuwait occurred prior to the Veteran's in-service treatment for coughing blood (12/03/2022 VA Memo; 02/03/2016 STR - Medical Photocopy, pg. 67). The Board finds that this evidence is new, as it had not been previously submitted to agency decision makers, and material, as it directly pertains to the basis for the prior final denial of entitlement to service connection for chest pain, citing the absence of evidence of a chronic lung disability either shown in service or related to service. The Board finds new and material evidence received since the December 2007 decision sufficient to warrant reopening of the claim of entitlement to service connection for chest pain, to include as secondary to coughing blood. Accordingly, the Veteran's petition to reopen the claim of service connection of chest pain, to include as secondary to coughing blood, is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for pulmonary edema. Entitlement to service connection for chest pain. Entitlement to service connection for coughing blood. The Veteran has described chest pain in his lungs, that began in service, when he coughed blood for a month and a half. Medical treatment during service, as the Veteran described, is confirmed by the Veteran's service treatment record (02/03/2016 STR - Medical Photocopy, pg. 67). The Veteran contends during service he was tested for tuberculosis, he was told he had bacteria in his lungs after swimming through or near Tijuana drainage. The Veteran contends doctors told him that his lung walls are weakened, as a result of the bacteria, and when he breathes hard, it tears the tissue, resulting in coughing blood (08/01/2007 VA 21-4138 Statement In Support of Claim). He has also contended, in the alternative, that his chest pain, coughing ups blood, and pulmonary edema are related to his Gulf War service, and Gulf War Environmental Hazards and Burn Pit Exposures (04/06/2016 NOD). The Veteran's Gulf War service and presumed toxic exposure has been verified (12/03/2022 VA Memo). With regard to chest pain, the Veteran has described a burning sensation, that precedes coughing attacks, and pain that results from excessive coughing. During his hearing, the Veteran testified the coughing and chest pain symptoms have persisted to the present (09/26/2022 Hearing Transcript, pgs. 2 and 5; 05/11/2018 Form 9). Although a VA examination from August 2007 is of record, it does not address all of the Veteran's contentions. Accordingly, it is not sufficient for the Board to rely upon in making a decision on these claims (08/29/2007 VA Examination). In situations where there is insufficient medical evidence to decide a claim, the Board must remand the issues in order for a VA examination to be obtained addressing the etiology of the Veteran's disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the forgoing, the matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any existing lung or bronchial disability, with manifestations including chest pain, coughing up blood, and/or pulmonary edema. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed lung or bronchial disability, chest pain, coughing up blood, and/or pulmonary edema is a result of service or any incident occurring during service, to include treatment during service in August 2004 and/or Gulf War service, and Gulf War Environmental Hazards and Burn Pit Exposures (04/06/2016 NOD). The examiner should note the Veteran's Gulf War service, both before and after the in-service treatment for coughing up blood. The examiner should note Gulf War service and presumed toxic exposure has been verified (12/03/2022 VA Memo). The examiner is reminded to consider the Veteran's lay reports of treatment and continued symptoms since service. A reason must be provided if the Veteran's lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran's contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks. A comprehensive rationale for all opinions expressed must be provided. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Myers, Pamella 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.