Citation Nr: 0126000 Decision Date: 11/07/01 Archive Date: 11/13/01 DOCKET NO. 00-01 833 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a lung disability including emphysema. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Casula, Associate Counsel INTRODUCTION The veteran had active service from November 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from a January 1999 RO rating decision which found that new and material evidence had not been submitted to reopen a claim for service connection for emphysema. In August 2001 the veteran testified at a Board videoconference hearing. FINDINGS OF FACT 1. A November 1994 unappealed RO rating decision denied a claim for service connection for emphysema. 2. Evidence received since the November 1994 RO decision includes evidence which is neither cumulative nor redundant of evidence previously considered, and is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for a lung disability. CONCLUSION OF LAW New and material evidence has been submitted since the final November 1994 RO decision, and thus the claim for service connection for a lung disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 2001); 38 C.F.R. § 3.156 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran had service with the Army National Guard. Service medical records from such service include an October 1982 enlistment examination which is negative for a lung disorder. On an associated medical history form, the veteran reported he had been hospitalized at Russell Hospital for treatment of pneumonia in November 1981, but he denied a history of respiratory symptoms. At a periodic Army National Guard examination in March 1987, the lungs were normal on clinical evaluation. It was noted the veteran reported using cigarettes, with a history of smoking a pack a day for 15 years. On an associated medical history form, the veteran reported he had been hospitalized at Russell Hospital for several days for treatment of pneumonia 9 years ago (also reported as being in 1976), and he denied a history of respiratory symptoms. From the Army National Guard, the veteran was ordered to active duty in the Army in support of Operation Desert Shield/Desert Storm during the Persian Gulf War. He served on such active duty from November 21, 1990 to June 6, 1991. This included service in Southwest Asia from January 9, 1991 to May 11, 1991. He performed duties of a vehicle mechanic with a military police unit. Service medical records related to this period of active duty include a November 1990 medical history form on which the veteran denied a history of respiratory symptoms. On a DA Form 4036-R (Medical and Dental preparation for Overseas Movement) it was noted that the veteran met the medical fitness standards, that he did not require medical care, and that he could be assigned to an area where medical facilities were limited or nonexistent. A service medical record from February 6, 1991 (after the veteran had arrived in Saudi Arabia) notes he complained of tightness in the chest, wheezing, and difficulty breathing for two week, which he first noted on the ocean ride from Florida. It was noted he had smoked one pack per day for 30 years and continued to smoke. The assessment was chronic obstructive pulmonary disease (COPD), complicated by smoking. The veteran was admitted to a service hospital. On admission it was noted that he had mild exertional dyspnea and had been deployed to Saudi Arabia on a slow ship that took 40 days to arrive. He had been there for several weeks and developed a cough with some production of sputum, wheezing, and increased shortness of breath, increasing symptoms. The impressions were severe emphysema and exacerbating COPD with bronchospasm and bronchitis. The veteran was subsequently evacuated by ambulance to another hospital, and on February 8, 1991 he complained of difficulty breathing with headache and productive cough for four days. It was noted that he had a history of COPD symptoms approximately three years prior. The diagnosis included COPD with exacerbation. In an undated medical record it was noted that due to the COPD exacerbation, the veteran would probably not be able to stay in the theater of operations due to the dust and climate. The veteran was discharged back to duty on February 12, 1991 On an April 1991 medical history form for upcoming release from active duty, the veteran indicated that he had a history of shortness of breath and chronic cough, that at the evacuation hospital he had been told he had the beginnings of emphysema, and that he was currently using an oral spray. On the April 1991 examination for service separation, the lungs were reported to be normal on clinical evaluation, although the examination form lists a defect of emphysema. A service medical record from June 5, 1991 shows the veteran was seen primarily for an ear problem, although it was also noted that he was a smoker with COPD changes on auscultation. The veteran was released from active duty in the Army on June 6, 1991. He then returned to Army National Guard status. In September 1994, the veteran filed a claim for service connection for a lung condition, which he variously described as emphysema, bronchitis, and shortness of breath. He reported treatment in service and none since. Based on the above summarized evidence, the RO, in October 1994 and November 1994 decisions (the latter one considered additional service medical records) the RO denied service connection for emphysema, holding that the condition pre- existed service without aggravation therein. The veteran did not appeal this determination. Evidence received since the November 1994 RO decision is summarized below. In an April 1997 private doctor's statement it was noted that the veteran had COPD. Treatment records from the Birmingham VA Medical Center (VAMC) show that in November 1997 the veteran underwent a Persian Gulf examination and reported that he was not currently smoking cigarettes; he indicated he had smoked on average two packs per day for 30 years but quit the habit in August 1991. He related that his breathing problems started in service in February 1991 when he was stationed in Southwest Asia. The veteran indicated that 3 years ago his private doctor put him on medication for the breathing problem, and that he had had 2 emergency room visits for the problem. He responded "yes" to the question of whether he believed he was exposed to smoke from oil fires, smoke or fumes from tent heaters, cigarette smoke from others, diesel or other petrochemical fires, and burning trash/feces. A chest X-ray showed pulmonary emphysema, and no acute lung disease. The final assessment was that the veteran had COPD. A VA outpatient record from January 1998 notes the assessment was COPD, possibly smoking related or aggravated by Persian Gulf War service. In March 1998 the veteran filed an application to reopen a claim for service connection for emphysema. Other VA outpatient records from 1998 note COPD/emphysema. In a January 1999 VA outpatient record, it was noted that the veteran complained of increasing shortness of breath with effort, and the assessment was severe COPD, possibly worsened/aggravated by Persian Gulf service. In a January 2000 statement, Larry T. Rayfield, the Readiness NCO for the veteran's Army National Guard Unit, reported that the veteran was assigned to his unit prior to, during, and after Operation Desert Storm, and that prior to deployment to the Southwest Asia Theater of Operations, the veteran was in good health, had not shown any prior health problems, and was cleared for mobilization and deployment. Mr. Rayfield recounted that the veteran was deployed to Saudi Arabia by ship in 1991. It was noted that while overseas the veteran performed various duties, including as part of a security operation in Kuwait for part of March 1991, during which time the unit was in close proximity to the oil well fires which created extreme conditions with smoke and unburned oil in the air. After redeployment to the United States, the veteran reportedly showed some degradation in his abilities to perform strenuous tasks, and was unable to participate in the Army Physical Fitness test. It was noted that the veteran elected to retire from service and had been placed in retired reserve status. Mr. Rayfield opined that the adverse conditions while stationed overseas, particularly oil well fires, caused or aggravated the veteran's lung problems. In August 2001 the veteran testified at a Board videoconference hearing. He said that he was first diagnosed with emphysema in February 1991 by a military doctor, and thereafter, during and after service, the condition worsened. He said that prior to being called to active duty he had bronchitis and shortness of breath on occasion, but he was given antibiotics and it would clear up. He testified that he was not diagnosed with emphysema prior to service, but had been to the doctor for severe bronchitis. He testified that once he got to Saudi Arabia he was exposed to smoke from burning oil wells, dust storms, and sand, and he continued to have more and more problems with breathing. He related that after he returned home from his service in the Persian Gulf War, he first went to Tuskegee VA Hospital in 1993, and then started going to the Birmingham VAMC, where he continued to receive treatment. He said that his condition had continually gotten worse since he came back from Saudi Arabia, and that he could not pass a physical fitness test with the National Guard. He reported that he was no longer in the National Guard, and had to retire due to his breathing problems and his inability to pass the physical fitness test. Analysis Service connection may be granted for disability resulting from injury or disease incurred in or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A preexisting disease or injury will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In a November 1994 decision, the RO denied service connection for emphysema, finding that the condition preexisted service and was not aggravated during service. The veteran did not appeal the decision, and it became final. This claim may be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet.App. 140 (1991). "New and material evidence" means evidence not previously submitted to VA decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When the claim was denied by the RO in 1994, the medical evidence on file consisted of service medical records. The available service medical records from when the veteran was in the National Guard, before his active duty, note a past history of hospialization for pneumonia, but there were no findings of chronic lung disease. It does not appear that the veteran received a complete medical examination when he entered active duty in November 1990, although he was medically cleared for duty, and on a medical history form he denied lung symptoms. Service medical records show he was diagnosed with emphysema during service in February 1991, and he then reported a history of COPD symptoms approximately three years prior to service. He was treated in February 1991 for an exacerbation of COPD. Continuing service medical records, up to the veteran's June 1991 release from active duty, note COPD and emphysema. Medical evidence submitted since the 1994 RO decision includes VA and private medical records from 1994 to 1999, indicating the veteran was treated for a lung disorder, generally diagnosed as COPD. Some of these medical records contain information suggesting that the veteran's lung problem may have begun during or was worsened by his active duty. Also submitted was a statement from a National Guard official, noting that the veteran had no significant health problems before his active duty. The veteran has also provided hearing testimony in which he asserted that while he may have had episodes of bronchitis before service, emphysema first was diagnosed in service. The Board finds that some of the additional evidence submitted since the 1994 RO decision is new, in that it is neither cumulative nor redundant of previously considered evidence. Some of this new evidence raises significant questions as to whether a chronic lung condition pre-existed service, and if it did, whether it was aggravated by service. Such evidence is material, since it is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. As new and material evidence has been submitted since the 1994 RO decision, the claim for service connection for a lung disability has been reopened. This does not mean that service connection is granted; rather, the reopened claim for service connection will have to be further reviewed on the merits, following development of the evidence as set forth in the below remand. ORDER The claim for service connection for a lung disability is reopened and, to that extent, the appeal is granted. REMAND The Board finds that there is a further VA duty to assist the veteran in developing evidence on the reopened claim for service connection for a lung disability including emphysema (also diagnosed as COPD). 38 U.S.C.A. § 5103A (West Supp. 2001); 66 Fed.Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). The file currently contains a few National Guard medical records from before the veteran's 1990-1991 active duty, and no such records from after his active duty (although the veteran returned to and eventually retired from the National Guard/Reserve). An effort should be made to obtain any additional service medical records from National Guard service, from before and after active duty, as they may be relevant to the claim for service connection. Information on file relates that before active duty the veteran reportedly was hospitalized for pneumonia, and he also reports that before service he was treated on occasion by his private doctor for bronchitis. No records of pre- service treatment have been obtained, and they should be. With regard to post-service medical records, while a 1997 private doctor's statement (noting COPD) has been submitted, the file also refers to other private medical treatment. For example, a 1997 VA medical record notes a history of the veteran being prescribed medication by his private doctor three years earlier, and of having had two emergency room visits. All private medical records of post-service treatment should be obtained. As to post-service VA medical treatment for a lung condition, the file contains 1997-1999 records from the Birmingham VAMC. However, the veteran has also reported that he was treated at the Tuskegee VAMC in 1993. All additional post-service VA treatment records should be secured. Under the circumstances of this case, a VA examination with opinion on the nature and etiology of the veteran's lung condition is also warranted. Accordingly, the case is remanded for the following: 1. The RO should obtain, from the appropriate office of the service department, complete service medical records from the veteran's National Guard service, from both before and after his 1990-1991 active duty. This includes all periodic examinations, any treatment records, and any retirement examination. 2. The RO should have the veteran identify (names, addresses, dates) all health care providers (private, VA, other) who have ever examined or treated him (both before and after his 1990-1991 active duty) for any type of lung/breathing problem. After securing the necessary releases, the RO should obtain copies of any previously unobtained medical records. This should include the records referenced earlier in this remand. 3. After the above development is completed, the veteran should undergo a VA respiratory examination to determine the nature and etiology of his current lung disorder. The claims folder should be provided to and reviewed by the examiner in conjunction with the examination, and the examination report should note that such has been accomplished. Based on examination findings, historical records, and medical principles, the VA examiner should provide a medical opinion, with full rationale, as to the date of onset and etiology of the current lung disorder, and, if the condition pre-existed service, whether it worsened during service beyond the natural progress of the disease. 4. Thereafter, the RO should review, on a de novo basis, the claim for service connection for a lung disability. If the claim is denied, the veteran and his representative should be provided a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). L.W. TOBIN Member, Board of Veterans' Appeals