Citation Nr: 1007451 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-11 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic respiratory disorder, to include pneumonia and/or "asbestosis," claimed as the residual of exposure to asbestos and/or Agent Orange. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for coronary artery disease, to include residuals of coronary artery bypass grafting, claimed as the residual of exposure to Agent Orange. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for rheumatoid arthritis, claimed as the residual of exposure to Agent Orange. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1968, with service in the Republic of Vietnam with the United States Navy from June 29, 1967 to June 27, 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a rating decision of August 2004, the RO denied entitlement to service connection for chronic respiratory problems, including pneumonia and asbestosis, as well as for coronary artery disease with coronary artery bypass grafting and rheumatoid arthritis. The Veteran voiced no disagreement with that decision, which has now become final. Since the time of the August 2004 rating decision, the Veteran has submitted additional evidence in his attempt to reopen his claims. The RO found such evidence new and material, but continued its denial of service connection for the disabilities noted. The appeal as to whether new and material evidence has been submitted sufficient to reopen the Veteran's previously- denied claim for service connection for rheumatoid arthritis, as well as service connection for coronary artery disease (including the residuals of coronary artery bypass grafting) on a de novo basis is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. In a rating decision of August 2004, the RO denied entitlement to service connection for chronic respiratory disorders, to include pneumonia and/or asbestosis, as well as for coronary artery disease, including the residuals of coronary artery bypass grafting. 2. Evidence submitted since the time of the August 2004 rating decision denying entitlement to service connection for chronic respiratory disorders (including pneumonia and/or asbestosis) and coronary artery disease (including the residuals of coronary artery bypass grafting) is neither cumulative nor redundant, and of sufficient significance that it raises a reasonable possibility of substantiating the Veteran's current claims. 3. Asbestosis as likely as not had its origin during the Veteran's period of active military service. CONCLUSIONS OF LAW 1. The decision of the RO in August 2004 denying the Veteran's claims for chronic respiratory disorders (including pneumonia and/or asbestosis) and coronary artery disease (including the residuals of coronary artery bypass grafting) is final. 38 U.S.C.A. §§ 1110, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 20.1103 (2009). 2. Evidence received since the RO denied entitlement to service connection for chronic respiratory disorders (including pneumonia and/or asbestosis) and coronary artery disease (including the residuals of coronary artery bypass grafting) in August 2004 is both new and material, and sufficient to reopen the Veteran's claims. 38 U.S.C.A. §§ 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2009). 3. Asbestosis was incurred in active military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes: his multiple contentions, as well as service treatment and administrative records, and both VA and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim, and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran in this case seeks service connection for chronic respiratory disorders (including pneumonia and asbestosis), as well as for coronary artery disease, to include the residuals of coronary artery bypass grafting. In pertinent part, it is contended that the Veteran's respiratory problems, including asbestosis and pneumonia, are in some way the result of exposure to asbestos, or to Agent Orange in the Republic of Vietnam. It is further contended that the Veteran's coronary artery disease had its origin during his period of active military service. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2009). Establishing service connection generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an inservice incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed inservice disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, and cardiovascular disease, including coronary artery disease, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). Finally, where a Veteran was exposed to an herbicide agent during active military, naval, or air service in the Republic of Vietnam, the following diseases shall be service connected, even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus, or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (i.e., cancers of the lung, bronchus, larynx, or trachea), chronic lymphocytic leukemia, or soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2009). These diseases shall become manifest to a degree of 10 percent or more any time after service, except that chloracne, other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. For the purposes of this section, the term "herbicide agent" means a chemical or an herbicide used in support of the United States and Allied Military Operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2009); 38 C.F.R. § 3.307(a)(6)(ii) (2009). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service include duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 501 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.313 (2009). Regarding the Veteran's claim for service connection for asbestosis, the Board notes that VA has established certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1, MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The aforementioned manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (i.e., asbestosis) being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea, end-respiratory rales over the lower lobe, compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancer of the gastrointestinal tract. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not military records demonstrate evidence of asbestos exposure in service, and to ensure that development is accomplished to ascertain whether or not there is preservice or postservice occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases. As always, the reasonable doubt doctrine is for consideration in such claims. In McGinty, the United States Court of Appeals for Veterans Claims (Court) also indicated that, while the Veteran, as a layperson, is not competent to testify as to the cause of his disease, he is competent to testify as to the facts of his asbestos exposure. See McGinty, 4 Vet. App. 432 (1993). Notwithstanding the aforementioned, once entitlement to service connection for a given disorder has been denied by the decision of the RO, that decision, absent disagreement by the Veteran within a period of one year, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 20.1103 (2009). Where a claim for entitlement to service connection has been previously denied, and that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2009). Evidence is considered to be "new" if it was not previously submitted to agency decisionmakers. Evidence is "material" if, by itself, or when considered with previous evidence of record, it 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 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). In addition, new evidence may be found to be material if it provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board of Veterans' Appeals to alter its decision." See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and Material Evidence As regards the Veteran's claims for service connection for chronic respiratory disorders (including pneumonia and/or asbestosis) and coronary artery disease (to include the residuals of coronary artery bypass grafting), the Board notes that, in Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit 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. Moreover, a properly diagnosed disease or injury cannot be considered the same factual basis as a distinctly diagnosed disease or injury. As a consequence, for purposes of 38 U.S.C.A. § 7104(b), claims which are based upon distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims. This is to say that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently, because they rest on different factual bases. In the case at hand, at the time of the prior August 2004 rating decision, the RO denied entitlement to service connection for chronic respiratory disorders, including asbestosis and pneumonia, as well as for coronary artery disease, to include residuals of coronary artery bypass grafting. The Veteran's current claim and accompanying evidence reflects those very same disabilities. The Veteran's current claims are based on the very same diagnoses as his previous claims, and, accordingly, must be considered on a "new and material" basis. See Boggs, supra. In the present case, at the time of the aforementioned August 2004 rating decision, it was noted that, while service treatment records showed evidence of treatment for pneumonia in August 1967, there was no evidence of any further treatment for pneumonia or other respiratory conditions during the remainder of the Veteran's period of active military service. Nor did the Veteran's separation examination show any evidence of chronic respiratory conditions. As regards other respiratory problems, it was noted that, while postservice private treatment records showed evidence of chronic obstructive pulmonary disease, there was no evidence of that condition in the Veteran's service treatment records. Nor was there evidence that the Veteran had been diagnosed with chronic obstructive pulmonary disease during the first year following his discharge from service. Regarding service connection for asbestosis, there was noted the Veteran's statement that he had been exposed to asbestos in his barracks during boot camp, and at the Naval Training Center located at North Shore, Illinois, as well as in the galley where he worked as a cook, and on board the "old ship" which was used for sleeping quarters in DaNang in the Republic of Vietnam. However, there was no evidence in the Veteran's service treatment or personnel records documenting exposure to asbestos in any of the aforementioned situations. Nor was there evidence of treatment for an asbestos-related illness either in service, or within one year following the Veteran's discharge. Significantly, in the opinion of the RO, the Veteran's military occupational specialty as a cargo handler was not one that would generally expose him to asbestos. Further noted was the Veteran's statement that he had undergone a biopsy around or about March or April 2001. However, medical records from the Veteran's private physician did not contain any report of that biopsy. While there was a diagnosis of mild asbestosis noted in private treatment records, the source of the Veteran's exposure to asbestos was not identified. Significantly, private treatment records dated in November 1988 reflected a 17-year history of exposure to asbestos. Moreover, the Veteran, by his own admission, had been exposed to chemicals and asbestos in his civilian job at an oil refinery during the period from February 1969 to September 1986. Based on the aforementioned, it was determined that exposure to asbestos during the Veteran's military service had not been established by the evidence available for review. Moreover, there was no evidence showing that the Veteran's asbestosis was either incurred in or aggravated by his active military service. Finally, regarding the issue of service connection for coronary artery disease, to include the residuals of coronary artery bypass grafting, it was noted that, while private treatment records showed a history of coronary artery disease with previous stent placement and coronary artery bypass grafting, the Veteran's service treatment records did not show any treatment for a heart condition in service. Nor was there evidence to show that the Veteran had been diagnosed with a heart condition within one year following his separation from active service. Based on the aforementioned, the RO denied entitlement to service connection for chronic respiratory disorders (to include asbestosis and/or pneumonia), as well as for coronary artery disease (to include residuals of coronary artery bypass grafting). That determination was adequately supported by and consistent with the evidence then of record, and has now become final. Evidence submitted since the time of the RO's August 2004 decision is both "new" and "material" as to the issues of service connection for chronic respiratory disorders (to include asbestosis and/or pneumonia) and coronary artery disease (to include the residuals of coronary artery bypass grafting). More specifically, since the time of the August 2004 rating decision, the Veteran has received continued treatment for various respiratory disorders, including pneumonia, asbestosis, bronchitis, and chronic obstructive pulmonary disease, as well as for coronary artery disease. Moreover, various private physicians have offered their opinion that the Veteran's asbestosis and coronary artery disease had their origin during his period of active military service. Such evidence, at a minimum, provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injuries or disabilities," and, accordingly, is sufficient to reopen the Veteran's previously-denied claims. As noted above, the issue of entitlement to service connection for coronary artery disease (including the residuals of coronary artery bypass grafting) on a de novo basis will be addressed in the REMAND portion of this decision. However, having determined that the Veteran's claim for service connection for chronic respiratory disorders (including asbestosis and/or pneumonia) has been reopened, the Board must now turn to a de novo review of the entire pertinent evidence of record. In that regard, a review of the record would appear to indicate that, during the period from September 1967 to June 1968, the Veteran may, in fact, have served as a cargo handler in DaNang in the Republic of Vietnam. Accordingly, pursuant to applicable law and regulations, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2009); 38 C.F.R. § 3.307 (2009). Moreover, service treatment records disclose that, during the period from July to September 1967, the Veteran received treatment for what was described at that time as upper respiratory infections. Significantly, in August 1967, while in service, a physical examination of the Veteran's chest was positive for the presence of rales in the right upper lobe, with subsequent evaluation showing evidence of scattered inspiratory and expiratory rales which did not clear with coughing. The clinical impression at the time was one of "rule out" pneumonia. Significantly, one month later, in September 1967, an evaluation of the Veteran's lungs once again showed evidence of occasional inspiratory rales. While on service separation examination in December 1968, an examination of the Veteran's lungs and chest was within normal limits, as of May 2000, the Veteran had received a confirmed diagnosis of asbestosis. The Board observes that, in correspondence of October 2006, the Veteran's private physician wrote that, when looking back at the Veteran's history, it was his opinion that the Veteran's shortness of breath was, in fact, related to asbestosis which he "probably contracted" during his years in service. Moreover, in a subsequent statement of July 2007, another of the Veteran's private physicians wrote that one of his colleagues, who had previously treated the Veteran, was of the opinion that, while it was "impossible" to prove causation, it was nonetheless "entirely possible" that the Veteran's previous exposure to asbestos had caused or was in some way related to his pulmonary fibrosis (i.e., asbestosis). Finally, the Board notes that, following a review of the Veteran's claims folder in March 2008, a VA physician indicated that the Veteran's claims folder showed documented exposure to asbestos during his period of active military service in the Navy, as well as extensive exposure to asbestos for a period of 17 years following his discharge from service, at which time the Veteran was employed with a Mobil oil refinery. According to the VA physician, the Veteran's medical records documented the presence of pulmonary asbestosis, with asbestos fibers noted upon lung biopsy in 2001. Moreover, the Veteran exhibited an interstitial fibrosis pattern in his lungs, which, according to the examiner, was "multifactorial." Noted by the examiner was that adverse effects from asbestos fibers were cumulative and additive, with contributions to the pathology of asbestosis lung disease, and increased risk for malignancy resulting from any and all exposures to asbestos. Moreover, cigarette smoking (in which the Veteran had engaged for many years) both compounded and magnified existing lung pathology, and increased the risk for malignancy, to wit, malignant mesothelioma. In the opinion of the examiner, there was evidence of exposure to asbestos not only in service, but after service. However, based on the evidence of record, it was not medically possible to discern which period of exposure led to the Veteran's asbestosis pulmonary condition, or to delineate which exposure caused what percentage of his currently present condition. According to the examiner, all of the Veteran's exposures to asbestos, in combination, had led to his present condition. Regarding the Veteran's exposure to Agent Orange, it is clear that asbestosis is not one of those diseases or disabilities for which service connection may be granted on a presumptive basis based on herbicide exposure. However, it is similarly clear that the Veteran does, in fact, currently suffer from asbestosis (i.e., pulmonary fibrosis), and that such pathology may very well have had its origin as the result of exposure to asbestos during his period of active military service. While it is true that, by the Veteran's own admission, he has smoked for many years, and may have been exposed to asbestos during his lengthy period of employment with Mobil oil, as noted above, and in the opinion of a VA physician, it is currently "not medically possible" to determine which period of exposure (in service or postservice) led to the Veteran's current asbestosis. Under the circumstances, and with the resolution of all reasonable doubt in the Veteran's favor, the Board is of the opinion that his current asbestosis as likely as not had its origin during his period of active military service, and that service connection for such pathology is, therefore, in order. In reaching this determination, the Board acknowledges that, as part of his current claim, the Veteran has raised the issue of service connection for various respiratory disorders, including not only asbestosis, but also pneumonia, and, by implication, bronchitis and chronic obstructive pulmonary disease. However, inasmuch as the asbestosis (pulmonary fibrosis) for which service connection is now in effect contemplates the same symptomatology encompassed by those disabilities, it is the opinion of the Board that the Veteran's alternative theories of service connection are, in fact, included in his claim for service connection for asbestosis. See Ashford v. Brown, 10 Vet. App. 120 (1997). Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the Veteran about the information and evidence not of record that is necessary to substantiate a claim; (2) inform the Veteran about the information and evidence that VA will seek to provide; and (3) inform the Veteran about the information and evidence he is expected to provide. In the case at hand, the Board finds that the VCAA notice requirements have been satisfied by correspondence dated in March 2006. In that correspondence, VA informed the Veteran that, in order to reopen his claims, new and material evidence was needed. VA also told the Veteran that, in order to substantiate a claim for service connection, the evidence needed to show that he had a current disability, a disease or injury in service, and evidence of a nexus between the postservice disability and the disease or injury in service, which was usually shown by medical records and medical opinions. To the extent there existed any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), such error was nonprejudicial, in that it did not affect the essential fairness of the adjudicatory process. In point of fact, based on a review of the entire file, it is clear that the Veteran had a full understanding of the elements required to prevail on his claims. Moreover, neither the Veteran nor his representative has raised allegations of prejudice resulting from error on the part of VA. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). As to informing the Veteran of which information and evidence he was to provide to VA, and which information and evidence VA would attempt to obtain on his behalf, VA informed him that it had a duty to obtain any records held by any Federal agency. It also informed him that, on his behalf, VA would make reasonable efforts to obtain records which were not held by a Federal agency, such as records from private doctors and hospitals. Finally, the RO informed the Veteran that he could obtain private records himself and submit them to VA. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In that regard, in connection with the current appeal, VA has obtained the Veteran's service treatment and personnel records, as well as both VA and private treatment records and examination reports. For the foregoing reasons, the Board concludes that all reasonable efforts have been made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for asbestosis is granted. New and material evidence having been submitted to reopen a claim of entitlement to service connection for coronary artery disease (to include the residuals of coronary artery bypass grafting), the benefit sought on appeal as to that matter is granted. REMAND Having determined that new and material evidence has been submitted sufficient to reopen the Veteran's previously- denied claim for service connection for coronary artery disease (including the residuals of coronary artery bypass grafting), the Board must now proceed to a de novo review of all pertinent evidence of record. That evidence, however, raises some question as to the exact nature and etiology of the Veteran's current coronary artery disease. In that regard, and as noted above, at the time of the August 2004 decision denying entitlement to service connection for coronary artery disease, it was noted that, while postservice records showed a history of coronary artery disease with stent placement and bypass grafting, service treatment records showed no evidence of any treatment for a heart condition in service. Nor was there evidence that the Veteran had been diagnosed with a heart condition within one year following his discharge from service. However, since the time of that rating decision, there has been received from the Veteran's private physician correspondence dated in October 2006 to the effect that, in his opinion, the Veteran's coronary disease "started back when he was in the military, and was probably exacerbated by his use of cigarettes." Significantly, service connection has now been granted for asbestosis (i.e., pulmonary fibrosis), raising the question as to whether the Veteran's coronary artery disease is in some way proximately due to, the result of, or aggravated by that disability. Under the circumstances, further development of the evidence is necessary prior to a final adjudication of the Veteran's claim for service connection. Turning to the issue of service connection for rheumatoid arthritis, the Board notes that, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Kent v. Nicholson, 20 Vet. App. 1 (2006). In that decision, the Court held that VA must notify a claimant of the evidence and information necessary to reopen a previously-denied claim, as well as the evidence and information necessary to establish his entitlement to the underlying claim for the benefit sought, i.e., service connection. In that case, the Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence which was of record at the time that the prior claim was finally denied. The Court further stated that the VCAA requires, in the context of a claim to reopen, that the Secretary look at the bases for the denial in the prior decision, and respond with a notice letter which describes what evidence would be necessary to substantiate the element or elements required to establish service connection which were found insufficient in the previous denials. The Board observes that, while in correspondence of March 2006, the Veteran was provided with a description of what constitutes "new and material" evidence as to certain other issues, he has yet to be provided with notice which fully complies with the newly-specified criteria noted in Kent, supra (i.e., the type of evidence which would be new and material based on the reasons for the prior denial) with regard to the issue of service connection for rheumatoid arthritis. Such notice must be provided to the Veteran prior to a final adjudication of his current claim for service connection for that disability. Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. Review the Veteran's claims file, and ensure that the Veteran and his representative are sent a corrected VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) which advises the Veteran and his representative of the evidence and information necessary to reopen his previously-denied claim (for service connection for rheumatoid arthritis), and which notifies him of the evidence and information necessary to establish his entitlement to the underlying benefit sought, that is, service connection. The Veteran should be advised of what constitutes new and material evidence sufficient to reopen a previously-denied claim in the context of evidence of record at the time that the prior claim was finally denied. Finally, the Veteran should be advised of what evidence would be necessary to substantiate the element or elements required to establish service connection which were found insufficient at the time of the previous denial, as outlined by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2008, the date of the most recent VA examination of record, should then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 3. The Veteran should then be afforded a VA cardiovascular examination in order to more accurately determine the exact nature and etiology of his current coronary artery disease (to include residuals of coronary artery bypass grafting). The RO/AMC is advised that the Veteran must be given adequate notice of the date and place of any requested examination, and a copy of all such notification(s) must be associated with the claims file. As regards the requested examination, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies should be performed. Following completion of the cardiovascular examination, the examiner should specifically comment as to whether the Veteran's current coronary artery disease (to include residuals of coronary artery bypass grafting) as likely as not had its origin during his period of active military service. Should it be determined that the Veteran's coronary artery disease did not, in fact, have it origin during his period of active military service, an additional opinion is requested as to whether it is at least as likely as not the case that the Veteran's coronary artery disease is in some way proximately due to, the result of, or aggravated by his now service- connected asbestosis. A complete rationale must be provided for any opinion offered, and all information and opinions, when obtained, must be made a part of the Veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiner prior to completion of the examination. Moreover, a notation to the effect that this record review has taken place must be included in the examination report. 4. Review the Veteran's claim as to whether new and material evidence has been submitted sufficient to reopen the Veteran's previously-denied claim for service connection for rheumatoid arthritis, as well as his claim for service connection for coronary artery disease (to include residuals of coronary artery bypass grafting). Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in May 2008. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs