Citation Nr: 0813475 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-10 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for COPD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served on active duty from November 1957 to November 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The issue of entitlement to service connection for COPD 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. An August 2002 rating decision denied the veteran's claim of entitlement to service connection for COPD. 2. Evidence associated with the claims file since the August 2002 rating decision was not of record at the time of the August 2002 decision and relates to an unestablished fact necessary to substantiate the veteran's claim of entitlement to service connection for COPD. CONCLUSIONS OF LAW 1. The August 2002 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. The evidence received subsequent to the August 2002 rating decision is new and material, and the claim of entitlement to service connection for COPD is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002 & Supp. 2005); 38 C.F.R. § 3.156(a) and (c) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But, see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the veteran of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For reasons explained in greater detail below, the veteran's COPD claim is found to be reopened by way of the submission of new and material evidence. Thus, no further notification or assistance is necessary to develop facts pertinent to the claim. II. New and Material Evidence The veteran was denied service connection for COPD due to gas or chemical exposure in August 2002. The veteran filed his request to reopen the previously denied claim of entitlement to service connection for COPD in March 2004 based on herbicide exposure to include Agent Orange while serving in Korea in addition to his claim for COPD based on gas or chemical exposure. Under 38 U.S.C.A. § 7104(b), if a veteran's claim has the same factual basis as a finally adjudicated claim, then the veteran is seeking to reopen his prior claim. The Court of Appeals for Veterans Claims held that "direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection." Bingham v. Principi,18 Vet.App. 470, 474 (2004), aff'd sub nom. Bingham v. Nicholson, 421 F.3d 1346 (Fed.Cir. 2005). Thus, a final VA decision is final as to the entire claim, not just those theories that were explicitly adjudicated. Bingham, 421 F.3d at 1349. Furthermore, the U.S. Court of Appeals for the Federal Circuit recently held that the "factual basis" of a claim for service connection is the veteran's disease or injury, rather than the symptoms of that disease or injury and a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim. Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008). As the veteran's claim is based on the same disease as a previous unappealed rating decision, the claim may be reopened only if the Board finds that the veteran provided new and material evidence. An unappealed rating decision in August 2002 denied the veterans claim of entitlement to service connection for a respiratory condition on the basis that the condition was not incurred in or caused by service. The relevant evidence of record at the time of the August 2002 rating decision consisted of service medical records, a March 2001 VA examination, medical records from Fort Dix, New Jersey from December 1978 to May 1996, medical records from Deborah Heart and Lung Center dated January 16, 1997, and a letter from the veteran's private physician with a nexus opinion. The veteran did not file a notice of disagreement within the one year time limit after the August 2002 rating decision. Therefore, the August 2002 rating decision is final based on the evidence of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A 5108. "New" evidence means existing evidence not previously submitted to the to VA. "Material" evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary 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. 39 C.F.R. § 3.156. In March 2004, a claim to reopen the issue of entitlement to service connection for COPD was received. Evidence of record received after the August 2002 rating decision include service personnel records, the veteran's March 2004 statement in support of his claim, a letter from the veteran's private physician, records from Ewing Medical Associates, medical records from VA Trenton Outpatient Clinic in New Jersey, medical records from East Orange VA medical center, an August 1967 certificate for commendable participation in operational missions along the demilitarized zone (DMZ) in Korea, and an article from the Veterans of Foreign Wars publication on DMZ veterans and Agent Orange exposure. The private physician letter is duplicative in that it is offered as a nexus opinion between the veteran's COPD and his active military duty similar to the opinion offered in the private physician letter provided prior to the August 2002 unappealed rating decision. Thus, the private physician letter is not new evidence. The records from Ewing Medical Associates, medical records from VA Trenton Outpatient Clinic in New Jersey, and the medical records from East Orange medical center are new in that the evidence was not of record at the time of the August 2002 rating decision. However, this evidence is not material, because it does not raise the possibility of substantiating the claim. The evidence shows that the veteran has a diagnosis of COPD and he received treatment for that disorder. However, the August 2002 rating decision recognized that the veteran had a current disability and denied the veteran's claim because there was no evidence that the veteran's current lung disorder was incurred in or caused by his military service. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) [medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence]. The veteran's personnel records, certificate for commendable participation in operational missions along the DMZ in Korea, and the article from the Veterans of Foreign Wars are new in that this evidence was not of record at the time of the August 2002 rating decision. In addition, this evidence is material in that it raises a reasonable possibility of substantiating the claim, namely that the veteran was exposed to gas, chemicals, or herbicide during military service. The personnel records demonstrate that the veteran was in an engineering battalion and later a chemical company while serving in Korea. Based on the veteran's duty assignment, it is likely that he was exposed to chemicals or gaseous fumes. Furthermore, the evidence shows that the veteran was near or in the DMZ between July 1, 1967 and August 19, 1968; thus, there may be a possibility that he was exposed to Agent Orange. The Department of Defense has acknowledged that herbicides were used in Korea from April 1968 through July 1969 along an area of the DMZ, including a strip of land 151 miles long and up to 350 yards wide from the fence to North of the "civilian control line." The Department of Defense publication with respect to herbicide agent use in Korea during the stated period includes a list of specific military units. See M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C. Therefore, the veteran provided both new and material evidence that relates to an unestablished fact necessary to substantiate his claim, in this case in-service incurrence of injury. The veteran's claim for entitlement to service connection for COPD is reopened. Accordingly, as new and material evidence has been submitted, the veteran's claim is reopened. The Board wishes to make it clear that the new evidence, although adequate for the limited purposes of reopening the claim, is not sufficient to allow the grant of the benefit sought. See Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). For the reasons explained in the REMAND section below, the Board finds that additional development is necessary before the Board may proceed to a decision on the merits of the reopened claim. ORDER The application to reopen the claim for entitlement to service connection for COPD is granted; the appeal is granted to this extent only. REMAND After careful review of the record, the Board finds that this case must be remanded for additional development. The veteran provided a record of assignment from his service personnel records, which indicate that the veteran was in Company B, 11th Engineering Battalion and the 25th Chemical Company from July 1, 1967 to August 19, 1968. This record of assignment indicates that the veteran served in a chemical company and it is likely that the veteran was exposed to chemicals while serving in Korea. Furthermore, the personnel records and the certificate for commendable missions at the DMZ suggest a likelihood that the veteran was in one of the units designated by the Department of Defense that may have been exposed to herbicide agents. If the veteran served in Korea with one of the listed units in M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C between April 1968 and July 1969, herbicide exposure is conceded by VA. If the veteran served in a unit other than the units listed in M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C, VA must verify herbicide exposure with the service department. Therefore, the Board has identified potentially outstanding VA personnel records pertinent to the veteran's claim for entitlement to service connection for COPD and VA must undertake efforts to acquire such documents in order to fully perform the duty to assist. Therefore, the Board finds that a reasonable effort should be made to obtain such records. See 38 U.S.C.A. § 5103A(b). If the service personnel records indicate that the veteran could have been exposed to gas or chemicals while serving in Korea or that the veteran was exposed to an herbicide agent while serving in Korea, then the RO should obtain a VA examination and nexus opinion on whether the veteran's current disease is related to his chemical or herbicide exposure. The VA must provide a VA medical examination or opinion when there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim, however, the evidence contains (1) competent evidence of a current disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability may be associated with the veteran's service. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the case is REMANDED for the following action: 1. The RO should request from the service department the veteran's complete service personnel records to include all available records showing unit and assignment from July 1, 1967 to August 19, 1968. Any records so obtained should be associated with the veteran's claims folder. If no additional documents are available, such should be stated for the record. 2. If the additionally obtained service personnel records do not indicate that the veteran served with one of the listed units in M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C between April 1968 and August 1968, the RO should submit a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the location of a veteran's unit as indicated in M21-1IMR, Part IV, Subpart ii, Chapter 2. 3. If the additionally obtained records show assignment with one of the listed units in M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C between April 1968 and August 1968, or, if in the alternative, JSRRC research indicates herbicide exposure, then VA should provide the veteran with a respiratory examination. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any respiratory condition found on examination is at least as likely than not, related to the veteran's active military service. The examiner should provide a complete rationale for conclusions reached. Please send the claims folder to the examiner for review in conjunction with the examination. 4. Thereafter, the veteran's claim for service connection for COPD should be readjudicated. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). ____________________________________________ K.M. Morgan Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs