Citation Nr: 1007189 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-00 299A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for service for chronic bronchitis. 2. Entitlement to service connection for chronic bronchitis. REPRESENTATION Appellant represented by: Libo Feinberg WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan L. Engebretson, Associate Counsel INTRODUCTION The Veteran had active service from February 1952 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that the Veteran submitted additional evidence after the issuance of the May 2009 Supplemental Statement of the Case. He did not submit a waiver of RO review. However, in light of the favorable decision below, the Veteran is not prejudiced by the lack of RO review and this matter need not be remanded for additional consideration by the RO. See 38 C.F.R. § 20.1304 (2009). The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in St. Petersburg in December 2009 to present testimony on the issue on appeal. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. The April 1956 rating decision denying the Veteran service connection for chronic bronchitis was not appealed and is final. 2. The evidence received since April 1956 is new and material, and therefore the Veteran's claim of entitlement to service connection for chronic bronchitis is reopened. 3. The Veteran is currently diagnosed with chronic bronchitis. 4. The Veteran's chronic bronchitis is related to his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for chronic bronchitis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009) 2. Chronic bronchitis was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a 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, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 C.F.R. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in light of the favorable decision below, the Board finds that any deficiency in the notice provided herein was not prejudicial to the Veteran nor would further development result in a more favorable result or be of assistance to this inquiry. II. New and Material Evidence The Veteran was denied service connection for chronic bronchitis in an April 1956 rating decision because there was no evidence of a current disability. At the time of the April 1956 decision the pertinent evidence of record included service treatment records and a VA examination dated in March 1956. The decision became final based on the evidence then of record. 38 U.S.C. § 709 (1952); Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008. However, 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. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, when by itself or when considered with the 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 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). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. The Veteran filed his application to reopen a claim of entitlement to service connection for chronic bronchitis in August 2006. The pertinent evidence received subsequent to the April 1956 rating decision includes VA treatment records dated from January 1999 to August 2006, VA examinations dated in October 2006 and April 2009, private treatment records dated from December 1995 to December 2009, a private examination by Dr. H.S.L., a private examination by Dr. J.P. dated in November 2009, and affidavits from the Veteran and from the Veteran's wife dated in December 2009. The treatment records submitted by the Veteran indicate that he has been diagnosed with chronic bronchitis. The private examinations also associate the Veteran's bronchitis with his active service. This evidence goes to essential facts not presented in the previous decision; namely a diagnosis of chronic bronchitis. As such, the Board finds that the evidence received is both new and material and sufficient to reopen the Veteran's claim for service connection for chronic bronchitis. II. Service Connection Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). However, the absence of a documented disability while in service is not fatal to a claim for service connection. When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. The Veteran seeks entitlement to service connection for chronic bronchitis. The Veteran contends that his condition was caused by his active service. He contends that he lived in barracks without heating during the first few months of his service. His service treatment records reveal that he was treated on multiple occasions in March 1952 for cold and flu symptoms. He was diagnosed with cellulitis without lymphangitis and pneumonia. A service treatment record from October 1955 revealed that the Veteran had frequent colds in the chest. He had increased breath sounds in the right base region. A chest x- ray was normal. Consultation with the chest service indicated that the Veteran probably had extensive bronchiectasis. A note on the record indicated that this condition did not exist prior to enlistment. In December 1955 the Veteran was sent for a study of possible bronchiectasis. A bronchoscopy revealed no abnormalities. A Papanicolaou's smear of bronchoscopic washings revealed Class I cells. Bronchograms revealed no evidence of bronchiectasis. The Veteran developed an upper respiratory tract infection during the study. He was diagnosed with chronic bronchitis. The Veteran's separation examination did not indicate he had any lung or breathing problems. A VA examination was accomplished in March 1956, the report of which notes a history of bronchitis, not confirmed on physical examination. In July 2003 the Veteran was treated for a cough. He complained of a pleuritic right sided chest pain when he coughed or moved, but did not have any dull chest pain, diaphoresis, or neck discomfort. The examiner reported a medical history of bronchitis, pneumonia, and pleurisy. The Veteran indicated that there was blood in his sputum. An echocardiogram showed a chronic abnormality in the high lateral lead and a nonspecific ST segment abnormality in V6 which consisted of a trace that was one millimeter depression with a biphasic T wave. A chest x-ray did not reveal pneumonia. He was diagnosed with hemoptysis, secondary to bronchitis. At a follow up appointment the examiner stated that the Veteran's bronchitis caused his cough and hemoptysis. The Veteran had a private pulmonary consultation in March 2006. He presented the month prior with shortness of breath associated with cough and low grade hemoptysis and yellow phlegm which lasted two weeks. A CAT of the Veteran's chest revealed a small infiltrate in the left upper lobe anteriorly and basilar areas of consolidation or interstitial infiltration at the bases bilaterally. The Veteran's CT scan demonstrated chronic interstitial lung disease especially involving the lower lobes and the left upper lobes. The examiner ruled out COPD. He was seen again in April where the problem had progressed to pneumonia. In an August 2006 statement the Veteran listed the numerous places he had lived and received treatment. He also explained that many records were unavailable because of the lapse of time since treatment and because many of the doctors had passed away. The Veteran had a VA examination in October 2006. The Veteran's respiratory system included a chronic cough yielding a clear or white sputum. The Veteran reported flu like symptoms in the 1990s, in July 2004, and in February 2006 with the latter requiring treatment at the emergency room. The Veteran was short of breath carrying five pounds ten yards and after a mile of walking. He denied chest pains. The Veteran did not take any medication for his pulmonary disease, but took medication to prevent congestive heart failure. Upon examination the Veteran's chest had an increased AP diameter. The Veteran's diaphragms were low-lying but descended on aspiration bilaterally. Breathe sounds were somewhat decreased generally but no rales or rhonchi were noted. The heart was unenlarged to percussion, but the rate was irregularly irregular. Pulmonary function tests revealed moderately reduced functioning. Bronchodilator therapy did not change the results. The Veteran was diagnosed with COPD. The Veteran underwent a fibrotic bronchoscopy in November 2006. He had extensive edema and erythema in that area of the epiglotic folds, the artenoids, and the epiglottis. There was evidence of chronic bronchitic changes throughout. A letter dated in April 2007 from Dr. H.S.L. stated that the Veteran was his patient from 1994 to 2002 and was treated for COPD and chronic bronchitis. He stated that it was as likely as not that the Veteran's COPD was caused or exacerbated by the Veteran's service. The Veteran was afforded a VA examination in April 2009. The examiner reviewed the Veteran's claim file. The examiner indicated that the Veteran had surgery for pneumonia in 1955 and hemoptysis in November 2006. The Veteran did not have a history of trauma to the respiratory system, neoplasm, pheumothorax, empyema, asthma, anorexia, chest pain, swelling, respiratory failure, fever, or incapacitation. He had a history of non productive cough several times a day, hymoptysis, wheezing, and dyspnea. Upon examination the Veteran had normal heart sounds. He did not have venous congestion or edema. He had decreased breath sounds, and dyspnea on moderate exertion. The Veteran's diaphragm excursion and chest expansion were slightly limited. A chest x-ray revealed an enlarged heart with arteriosclerotic changes in the aorta. The lung fields revealed COPD. A pulmonary function test revealed moderate obstructive airway disease by spirometry and flow volume loop. There was a significant response to the bronchodilator. There was no evidence of restrictive ventilatory impairment by lung volumes. He had a mild defect in gas diffusion capacity but normal oxygen saturation on room air at rest. The examiner stated there was moderate obstructive lung defect. Airway obstruction was confirmed by the decrease in flow rate. Lung volumes were within normal limits. There was a mild decrease in diffusing capacity. The examiner diagnosed the Veteran with COPD and bronchitis. There was no evidence of cor pulmonale, pulmonary hypertension, or RVH. The examiner stated that because the Veteran had a normal bronchoscopy in service, a normal chest x-ray, and a discharge examination with no findings of lung disease that it was less likely as not that the Veteran's current pulmonary condition was related to, or had its onset during the Veteran's military service. After the examination, the Veteran had a private evaluation with Dr. H.S.L. The doctor reviewed the Veteran's treatment history including treatment during service. He stated that the Veteran's pulmonary condition had been treated with antibiotics and various inhalers. The doctor stated that the VA examiner privately expressed to the Veteran his personal opinion concerning the relationship between the Veteran's initial hospitalization in 1952 and chronic bronchitis, which was a clear contradiction to the examiners opinion stated in the examination report. The doctor agreed with the VA examiner's private opinion and stated there was a clear connection between the Veteran's original hospitalization for pneumonia in 1952, difficult operative recovery in 1955, and the Veteran's chronic bouts of bronchitis. The Veteran submitted a letter from Dr. J.P. dated in November 2009. The doctor examined several of the Veteran's medical records and other documentation. The Veteran reported increased difficulty breathing and cryptogenic hemoptysis. The doctor stated that the Veteran had a disability based on his pulmonary function tests and hemoptysis. The Veteran's pulmonary infiltrates showed evidence of chronicity with tranction bronchiectasis and infiltrates that were worrisome, especially in an individual with hemoptysis. From the information provided, the doctor stated that the Veteran showed evidence of complete disability from his underlying lung disease and that the Veteran's pulmonary function tests demonstrated severe disease. He also stated that it appeared the Veteran may qualify for service connected disability in relationship to his pulmonary problems. In the Veteran's Travel Board hearing in December 2009, the Veteran's representative indicated that while the Veteran did not present treatment records for the period from 1956 to 1980, that the Veteran had in fact received treatment for respiratory problems during that time and the records were unavailable due to a lapse in time. The Veteran stated that he was given the opportunity to continue in the service for several more months to have his condition tracked, or to separate from service and make a claim to VA for disability benefits. He chose to separate from service immediately to be with his family and continue his education. The Veteran also indicated that the VA examiner told him there was a clear nexus between his current condition and his treatment for pneumonia and bronchitis in service. In light of the evidence the Veteran is entitled to service connection for chronic bronchitis. He was diagnosed with the disorder in service, he is currently diagnosed with the same disorder, and his treating physicians associate his current condition with his active service. The Veteran's service treatment records reveal that he was diagnosed with chronic bronchitis prior to separating from service. Further the examiners associated the Veteran's bronchitis with the initial bout of pneumonia he suffered upon entering service. The treatment record indicates specifically that these conditions were not present at the time the Veteran enlisted for service. The Veteran has stated that he has had received consistent treatment, dating back to his time of service for symptoms surrounding chronic bronchitis. The Veteran is competent to report these symptoms because coughing and difficulty breathing are readily observable to a lay person. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (the layperson may be competent to identify the condition where the condition is identifiable by the individual's senses). The Board finds the Veteran's reports credible. He has consistently reported that his symptoms began very early in service when he acquired pneumonia from sleeping in barracks without heat. Additionally, although treatment records are not available for numerous years between separation from service and more recent treatment, this gap is explained by the Veteran's account of various moves during this period as well as the reported death of many doctors. The Veteran has been consistently treated for and diagnosed with chronic bronchitis. His cough and hemoptysis have specifically been associated with his bronchitis. The VA examiner in April 2009 did not associate the Veteran's bronchitis with his active service because the Veteran had a normal chest x-ray in service and his separation examination did not include a diagnosis of bronchitis or related condition. While the Board finds the examiner competent to report this opinion, and finds his opinion credible, the Board must also consider that there is an indication that the examiner expressed a different opinion specifically to the Veteran. Additionally, the Board is persuaded by the thorough treatment records in the Veteran's service records which indicate that he was in fact diagnosed with bronchitis. These records are dated very close to the Veteran's date of separation and likely included a more thorough pulmonary examination than the Veteran's separation examination. Further, two private doctors have associated the Veteran's chronic bronchitis with his active service. Dr. H.S.L. treated the Veteran for nearly ten years and expressed a thorough understanding of the Veteran's treatment history. The Board finds that he is competent to report an opinion on the etiology of the Veteran's condition and that his opinion was credible. The doctor reasoned that the Veteran's treatment history in service was consistent with his current chronic bronchitis. While Dr. J.P. did not specifically examine the Veteran, his review of the Veteran's treatment records was thoughtful and reasonable. The doctor indicated that the Veteran's treatment history indicated he had a current pulmonary disability that likely had progressed since service. Even if Dr. J.P.'s opinion is discounted because he did not specifically examine the Veteran, the facts are at the very least in equipoise with two well informed examiners diagnosing the Veteran with chronic bronchitis and forming opposite opinions on whether the Veteran's bronchitis should be associated with active service. As such, the Board finds that the Veteran should be given the benefit of the doubt and service connection is granted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chronic bronchitis is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs