Entitlement to service connection for a respiratory disorder due to asbestos exposure is granted
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Citation Nr: 19122664 Decision Date: 03/26/19 Archive Date: 03/26/19 DOCKET NO. 17-08 940 DATE: March 26, 2019 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a right shoulder disorder is granted. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a left ankle/foot disorder is granted. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a respiratory disorder due to asbestos exposure is granted. As new and material evidence has not been received, the appeal to reopen a claim of entitlement to service connection for tuberculosis exposure is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for hypercholesterolemia is denied. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left ankle/foot disorder is remanded. Entitlement to service connection for a respiratory disorder due to asbestos exposure, to include chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a sinus disorder is remanded. FINDINGS OF FACT 1. In a July 2004 rating decision, the RO denied the claims of entitlement to service connection for a right shoulder disorder, a left ankle/foot disorder, tuberculosis exposure and for a disorder due to asbestos exposure. The Veteran did not file a Notice of Disagreement nor perfect his appeal. Additionally, new and material evidence was not submitted within one year of the July 2004 rating decision. 2. Evidence received since the July 2004 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran’s claims of service connection for a right shoulder disorder and for a left ankle/foot disorder, and raises a reasonable possibility of substantiating the claims. 3. Evidence received since the July 2004 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for a respiratory disorder due to asbestos exposure and raises a reasonable possibility of substantiating the claim. 4. Evidence added to the record since the July 2004 rating decision concerning the Veteran’s claim for tuberculosis exposure does not relate to an unestablished fact necessary to substantiate the claims and does not raise a reasonable possibility of substantiating the claim. 5. Resolving all doubt in favor of the Veteran, tinnitus had its onset during active military service. 6. Hypercholesterolemia is not a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The July 2004 rating decision denying service connection for a right shoulder disorder, a left ankle/foot disorder, tuberculosis exposure and for a disorder due to asbestos exposure is final. 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. As new and material evidence has been received the criteria for reopening the claims for service connection for a right shoulder disorder and for a left ankle/foot disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As new and material evidence has been received the criteria for reopening the claim for service connection for a respiratory disorder due to asbestos exposure are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. As new and material evidence has not been received since the July 2004 decision, the criteria for reopening the claim for service connection for tuberculosis exposure are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for hypercholesterolemia have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Air Force from February 1983 to July 1991 and from November 2001 to October 2002, with additional Reserve service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision. New and Material Evidence The Veteran’s claims for a right shoulder disorder, a left ankle/foot disorder, a disorder due to asbestos exposure and for tuberculosis exposure were denied in a July 2004 RO decision. Although the Veteran was notified of the RO’s decision, he did not appeal, and new and material evidence was not received within one year of notice thereof. As such, the July 2004 RO decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means 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. An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). 1. Whether new and material evidence has been received to reopen claims of entitlement to service connection for a right shoulder and for a left ankle/foot disorder The Veteran’s service treatment records show that he was treated for a right shoulder acromioclavicular (AC) separation and for a left ankle sprain. The RO denied the claims because the post-service medical evidence did not show a right shoulder disorder or a left ankle/foot disorder. Since that denial, the Veteran has reported ongoing right shoulder and left ankle/foot pain since service. A June 2013 VA treatment report documented increasing issues with the left ankle with initial injuries reported during active duty service. A July 2015 private x-ray report showed osteoarthritis of the right shoulder. Accordingly, the claims for service connection for a right shoulder disorder and for a left ankle/foot disorder are reopened and are remanded below for further development. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disorder due to asbestos exposure. The claim was denied by the RO in July 2004 due to absence of evidence that the Veteran was exposed to asbestos during service and the absence of a disorder related to such exposure. A March 2002 chest x-ray revealed changes consistent with chronic pulmonary disease (COPD). Moreover, in a February 2017 statement, the Veteran reported that he was exposed to asbestos from 1989 to 1991 while assigned to the 60th Security Police Squadron Travis Air Force Base in California. He stated that the confinement facility that he worked tested positive for asbestos and was later torn down. Thus, the claim of service connection for a disorder due to asbestos exposure, is reopened, and expanded to include COPD. See Clemons v. Shinseki 23 Vet. App. 1, 5 (2009). The claim is remanded below for further development. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tuberculosis exposure The Veteran’s service treatment records show that while was he exposed to tuberculosis (confirmed by a positive PPD converter test), he was not diagnosed as having an actual tuberculosis disability. The claim was denied by the RO in July 2004 due to the absence of a tuberculosis disability. Since July 2004, the medical evidence associated with the claims file do not indicate the present of a tuberculosis disability. The Veteran has submitted no additional evidence in support of his tuberculosis claim, other than asserting that VA failed to properly evaluate his claim. Accordingly, new and material evidence has not been received, and the Veteran’s claim is not reopened. Service Connection Service connection will be granted for disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 4. Entitlement to service connection for tinnitus An April 2013 private treatment record and a June 2013 VA treatment record documents the Veteran’s treatment for tinnitus. The Veteran has stated that his tinnitus began during his active duty service, particularly due to high levels of noise exposure from his periods of active duty service. Specifically, he reports excessive noise exposure while working on the flight line, firing ranges and during field exercises. His DD-214 shows that his military occupational specialty (MOS) was that of a security forces craftsman and a security supervisor. His in-service noise exposure is conceded. The evidence shows that the Veteran currently has tinnitus and that he had in-service acoustic trauma. Moreover, the Veteran is competent to make statements regarding the onset of tinnitus as they are easily perceived by lay persons. Thus, even in the absence of a favorable medical nexus opinion, an award of service connection for tinnitus is appropriate. As such, entitlement to service connection for tinnitus is warranted. 5. Entitlement to service connection for hypercholesterolemia Current medical treatment records show that the Veteran has hypercholesterolemia. Hypercholesterolemia and hyperlipidemia are the medical terms for high cholesterol. Hypercholesterolemia is “excessive cholesterol in the blood.” See Dorland’s Illustrated Medical Dictionary 887 (32nd ed. 2012). Hyperlipidemia is “a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, and so on.” Id. at 891. Elevated cholesterol is a laboratory finding and not a disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.). Based on the foregoing, the Board finds that service connection for hypercholesterolemia is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. A July 2015 private x-ray report showed osteoarthritis of the right shoulder. The Veteran relates his current right shoulder disorder to two incidents during service. A September 1988 service treatment record shows that the Veteran was treated for a right shoulder. An August 2002 treatment record during a period of Reserves duty shows that the Veteran was thrown from an all-terrain vehicle and injured his right shoulder. It is unclear as whether the Veteran was on active duty for training purposes (ACDUTRA) or inactive duty for training purposes (INACDUTRA) during his Reserve service. Thus, his periods of ACDUTRA and INACDUTRA must be verified. In January 2019, the Veteran attempted to fax a nexus opinion in support of his claims for a right shoulder disability (and other claims) to the VA claims intake center. Only the first two pages of this opinion (and nothing regarding the Veteran’s right shoulder) were included in this fax. On remand, the Veteran must be given the opportunity to submit additional evidence, including the complete nexus opinion. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of any current right shoulder disorder. 2. Entitlement to service connection for a left ankle/foot disorder is remanded. The Veteran claims that a current left ankle/foot disorder is related to his military service. The service treatment records show that in January 1987, the Veteran was treated for a left ankle sprain and for a laceration to the left foot in January 1988. Current VA and private treatment records document the Veteran’s ongoing complaints of left ankle pain. The Veteran should be afforded a VA examination to determine the nature and etiology of any current left ankle/foot disorder. 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he currently has bilateral hearing loss as a result of excessive noise exposure during his military service. A November 2014 rating decision and the December 2016 statement of the case (SOC) reference results from an undated VA audiological examination, however, the examination has not been associated with the claim file. The AOJ has denied the claim on the basis that bilateral hearing loss for VA purposes was not demonstrated at the VA audiological examination. On remand, the AOJ should attempt to obtain this missing examination report. Even assuming that a copy of the missing VA audiological examination can be obtained, in light of the Veteran’s contentions, a new VA audiological examination is needed. 4. Entitlement to service connection for a respiratory disorder due to asbestos exposure, to include COPD, is remanded The Veteran contends that he has a respiratory disorder that is attributable to his in-service exposure to asbestos. Moreover, in a February 2017 statement, the Veteran reported that he was exposed to asbestos from 1989 to 1991 while assigned to the 60th Security Police Squadron Travis Air Force Base in California. He stated that the confinement facility that he worked tested positive for asbestos and was later torn down. A March 2002 chest x-ray revealed changes consistent with chronic pulmonary disease (COPD). On remand, the AOJ should take any steps that are necessary to verify his asbestos exposure. Thereafter, a VA examination is warranted to determine the nature and etiology of any currently diagnosed respiratory disorder. 5. Entitlement to service connection for a sinus disorder is remanded The Veteran reports the onset of sinus problems during military service which have continued to the present time. He also relates any current sinus problems to his alleged asbestos exposure in service. Private treatment records show that the Veteran was diagnosed as having acute bronchitis in January 2006, nasopharyngitis in February 2006 and with an upper respiratory tract infection in September 2011. Based on the above, a VA examination is warranted. The matters are REMANDED for the following action: 1. Provide the Veteran the opportunity to submit any additional evidence on his own behalf, including the December 2018 nexus opinion from Dr. Craig Bash. 2. Determine the dates for which the Veteran served on ACDUTRA and INACDUTRA. Seek records from all indicated and appropriate sources to confirm these dates. Thereafter, schedule the Veteran for a VA examination for his right shoulder and left ankle/foot claims. All indicated tests and studies should be completed. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. The examiner must be provided the Veteran’s enumerated periods of active duty, ACDUTRA, and INACDUTRA. The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that any current right shoulder disorder and/or left ankle/foot disorder had its clinical onset during any period of service or is related to any incident of service. A complete rationale should be provided for all opinions given. 3. The AOJ should take all necessary action to obtain audiological examination referenced in the November 2014 rating decision and the December 2016 SOC. Attempts to obtain this document should be noted in the claim file. If this document cannot be obtained, this should also be noted in the claim file. 4. Thereafter, schedule the Veteran for a VA audiological examination to ascertain the likely cause of his claimed bilateral hearing loss. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. All indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner must provide an opinion that responds to the following: Is it at least as likely as not that hearing loss in either ear is related to his noise exposure during military service? It should be noted that the absence of in-service evidence of a hearing loss disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A complete rationale must be given for all opinions given. 5. The AOJ should take any appropriate steps to attempt to verify the Veteran’s in-service exposure to asbestos. 6. Thereafter, schedule the Veteran for a VA examination to determine the nature and possible relationship to service of any respiratory disorder and/or sinus disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The examiner should identify all current respiratory and/or sinus disorders present. For each identified disorder, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability began in service, was caused by service, or is otherwise related to the Veteran’s military service, to include exposure to asbestos (if exposure is confirmed). 7. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel