Citation Nr: 0810559 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 06-11 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a pulmonary disorder, to include residuals of pneumonia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Navy from June 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The veteran appeared at a Travel Board Hearing before the undersigned Acting Veterans Law Judge in August 2007. A transcript is associated with the claims folder. The issue of entitlement to service connection for a pulmonary disorder, to include residuals of pneumonia, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A December 1986 rating decision denied entitlement to service connection for residuals of pneumonia. No appeal was filed, and the decision is final. 2. Evidence received since the December 1986 rating decision, which denied service connection for residuals of pneumonia, relates specifically to an unestablished fact necessary to substantiate the claim; it raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material having been received, the claim for service connection for a pulmonary disorder, to include residuals of pneumonia, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2007). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2007). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the veteran's claim of entitlement to service connection for a pulmonary disorder. The claim on the merits requires additional development, which is addressed in the remand below. Therefore, no further development is needed with respect to the aspect of the appeal decided herein. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing 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(a). Legal Criteria-Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 . With a chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Analysis-New and Material Evidence The veteran was denied service connection for residuals of pneumonia in a December 1986 rating decision. The rationale for the denial was (based on evidence then of record) that there was no indication that the veteran experienced a chronic disorder of the lungs, to include pneumonia or its residuals. It was, however, conceded that the veteran had an episode of acute pneumonia while in active service. There was no appeal offered within a year of notification, and the decision is final. The veteran has since put forth his current claim, alleging that new and material evidence exists so as to warrant a reopening of the previously denied claim for service connection. The Board agrees. Specifically, the Board notes radiographic and medical evidence dated in October and November 2006. While imaging studies show essentially normal lungs, there is a notation that a computerized tomography (CT) scan showed a thickening of the pleura at the left base of the lungs. A medical opinion, dated in November 2006, stated that the veteran had episodes of diffuse left thoracic pain, and noted that the CT scan may support a finding of chronic intermittent pleuritis. There is thus a potential diagnosis of a currently present pulmonary disability, which, given its anatomical location, at least raises the possibility of being resultant from a documented in-service treatment for pneumonia, or, of being evidence of residuals of such a disorder. The evidence is both new, in that it was not considered at the time of the initial denial, and is material, in that it relates directly to a previously unestablished fact which raises the possibility of substantiating the underlying claim for service connection. See 38 C.F.R. § 3.156. The Board is aware that the diagnosis is in no way conclusive; however, given that the evidentiary standard to constitute new and material evidence is relatively light, the noted abnormality in the lungs and potential diagnosis of pleuritis is enough for the Board to reopen the claim and consider the merits of the underlying issue. ORDER New and material evidence has been submitted regarding a claim for entitlement to service connection for a pulmonary disorder; the claim is reopened, and to that extent only, the claim is granted. REMAND As noted briefly in the decision to reopen, the veteran had treatment for pneumonia while he was in active military service. He contends that this disorder, which was not present at service separation, scarred his lung tissue and has subsequently caused him to develop a chronic pulmonary disorder. The most recent medical evidence of record shows that the veteran indeed has pulmonary abnormality; however, the extent of such a condition, as well as its etiological origin, requires further evidentiary development. Specifically, there are several radiographic imaging studies of record which document an essentially normal pulmonary impression. An October 2006 CT scan did, however, show some enlargement at the left pleural base of the lungs, which a physician interpreted to potentially be indicative of intermittent pleuritis. In addition to this, the veteran has reported having problems with cough and shortness of breath, and has required medical treatment for left thoracic pain. While pain, cough, and shortness of breath are symptoms of a disorder, and hence not something on which VA benefits can be granted (see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)..."pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"), their existence along with a potential diagnosis of a chronic pulmonary condition is significant to suggest that residuals of pneumonia could be present. It is undisputed that the veteran had a bout of pneumonia while on active duty in the U.S. Navy during the Second World War, and this fact, along with the new evidence of enlarged pleura, presents at least a possibility of a connection between the in-service condition and the current disorder. Thus, the Board finds that it must remand the claim for a comprehensive VA pulmonary examination addressing the type, severity, and etiology of any lung condition, including residuals of pneumonia, which may currently be present. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. Schedule the veteran for a VA pulmonary examination for the purposes of determining the nature, approximate onset date and/or etiology of any lung disease that is currently present, to include pleuritis and residuals of pneumonia. Following a review of the relevant evidence in the claims file, the clinical evaluation, and any tests that are deemed necessary, the examiner is asked to provide an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that any lung disease that is currently present, to include pleuritis and the residuals of pneumonia, began during service or is causally linked to any incident of service, to include documented in-service treatment for acute pneumonia. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and indicate that the claims file was reviewed. If a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 3. After the development requested above has been completed to the extent possible, re-adjudicate the veteran's claim. If the benefit sought on appeal is denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. Furthermore, if the veteran's case is denied, he should be contacted to determine if he wishes to have his case advanced on the Board's docket due to advanced age. It is noted that the veteran is 86 years of age. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs