G.J. vs. Denis McDonough

Victory for Veteran’s Shortness of Breath Claim: Court Orders Review of New Evidence on Burn Pit Exposure

The Court of Appeals for Veterans Claims recently ruled in favor of our client, a veteran who sought to reopen a denied claim for service connection for shortness of breath. This decision recognizes the significance of new evidence suggesting exposure to harmful substances during deployment, including burn pits, sandstorms, and smoke.

The Board initially denied our client’s request, finding that a 2015 lay statement detailing her exposure to environmental hazards during service did not constitute “new and material” evidence. The Board argued that this statement didn’t address whether she currently had a diagnosed respiratory condition, the basis for the original denial. However, the Court clarified that the Board narrowly interpreted the new evidence standard, which should include any unestablished fact necessary to substantiate the claim.

Our client’s statement of burn pit exposure represents a new theory for service connection, particularly in light of recent legislation linking burn pit exposure to respiratory issues. The Court agreed that this evidence should prompt reconsideration of the claim. It remanded the case, instructing the Board to evaluate the materiality of the new evidence and determine whether it warrants reopening the service connection claim for shortness of breath.

This ruling emphasizes that the VA must consider all potential service-related health impacts, especially with emerging evidence about the long-term effects of environmental exposures during deployment. Our team remains committed to advocating for veterans’ rights to have their claims fully and fairly evaluated.