Citation Nr: 0810991 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-33 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for bronchitis. 2. Entitlement to service connection for bronchitis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Associate Counsel INTRODUCTION The veteran had active service from September 1942 to December 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A Travel Board hearing in front of the undersigned Veterans Law Judge was held in January 2008. A transcript of the hearing has been associated with the claim file. The issue of entitlement to service connection for bronchitis is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for bronchitis was denied by the RO in a decision of January 1946. The veteran was informed of the decision and he did not appeal. 2. The evidence submitted since the RO's January 1946 decision is relevant and probative of the issue at hand. CONCLUSION OF LAW 1. The January 1946 decision, which denied service connection for bronchitis, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. The evidence received since the January 1946 decision, which denied service connection for bronchitis, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5103A, 5107, 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veteran's Claims Assistance Act of 2000 (VCAA), is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the veteran and representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002). VA must also inform the claimant which evidence VA will seek to provide and which evidence the claimant is to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Second, the VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002). In the instant case, the veteran's claim is being reopened. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. New and Material Service connection for bronchitis was denied in a January 1946 rating decision on the basis that there was no evidence of a current diagnosis of bronchitis. The veteran did not appeal the decision and it became final. At the time of the decision, the record included service medical records showing reports of treatment for recurring cough with sputum and diagnoses of bronchiectasis. Records also contained a reported history by the veteran that he had bronchitis as a child. Submitted since the RO's January 1946 decision are numerous private medical treatment records showing a diagnosis of bronchiectasis, and VA outpatient treatment records showing a diagnosis of chronic obstructive pulmonary disease (COPD). The RO's January 1946 decision is final based upon the evidence then of record. A prior final decision will be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been previously submitted to agency decision makers which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has made a careful review of the record. The Board notes that at the time of the prior denial, there was evidence of bronchiectasis in service, but no evidence of a current lung disability. Since that determination the veteran has introduced evidence of diagnoses of bronchiectasis and COPD. This evidence is relevant and probative to the issue at hand. The evidence clearly cures one of the evidentiary defects that existed at the time of the prior decision. See 38 C.F.R. § 3.156. Based upon the reason for the prior denial, the additional evidence is new and material and the claim is reopened. ORDER The application to reopen the claim for service connection for bronchitis is granted. REMAND The Board notes that the Veterans Claims Assistance Act (VCAA) codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), requires that VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). Service medical records show that the veteran was treated for recurrent cough with sputum, and was diagnosed with bronchiectasis while in service. Records further show that the veteran reported a history of bronchitis when he was a child. Private medical treatment records dated from December 2001 to January 2002 note diagnoses of bronchiectasis and treatment for cough. Records also show that the veteran reported a history of bronchitis as a child. VA outpatient medical treatment records show a diagnosis of COPD. In statements the veteran has argued that the conditions of his service aggravated his preexisting bronchitis. At the Travel Board hearing of January 2008 the veteran testified that he has had recurring bronchitis since separation from service and that his current lung problems are related to his diagnosis in service. In McLendon v. Nicholson, 20 Vet. App. 79 (2006) the Court held that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. In this case, the veteran has been diagnosed with bronchiectasis and COPD. Furthermore, service medical records show that the veteran sought treatment for recurrent cough while in service and he was diagnosed with bronchiectasis. The Board notes that the veteran has not undergone a VA examination. Therefore, a medical examination is required. See McLendon. Accordingly, the case is REMANDED for the following action: The veteran should undergo VA examination to determine the etiology of all current respiratory disability including bronchiectasis, bronchitis and COPD. The claims folder must be made available to the examiner for review of the case. All indicated tests and studies are to be performed. All findings should be reported in detail. Complete diagnoses should be provided. The presence of bronchiectasis, bronchitis and COPD should be ruled in or out. Specifically, the examiner should address whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., 50-50 probability), or unlikely (i.e., a probability of less than 50 percent) that the any current respiratory disability, to include bronchiectasis, bronchitis and COPD, is due to the veteran's complaints of recurrent cough with sputum, and diagnosis of bronchiectasis while in service. If there is clear and unmistakable evidence that a particular disease pre-existed service, such fact must be noted in the report. The AOJ shall prepare a rating decision that addresses service connection for all identified respiratory disability. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs