Citation Nr: 1009802 Decision Date: 03/15/10 Archive Date: 03/24/10 DOCKET NO. 05-17 426 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for bronchitis/chronic obstructive pulmonary disease (COPD) has been received. 2. Entitlement to service connection for bronchitis/COPD. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to February 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2003 rating decision in which the RO determined that new and material evidence to reopen a claim for service connection for bronchitis had not been received. In November 2003, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2005. This appeal was previously before the Board in July 2005, at which time the claim then on appeal was remanded in order that the Veteran might be afforded a hearing before a Member of the Board (Veterans Law Judge (VLJ)) at the RO. Prior to the hearing, the RO readjudicated the Veteran's claim in August 2006, as reflected in a supplemental statement of the case (SSOC). In June 2007, the Veteran was afforded a Board hearing before a VLJ at the RO. However, it was later determined that it was not possible to record and/or produce a written transcript of that proceeding. Under the circumstances, the Veteran was advised that, while it was possible for the Board to render a decision on the existing appellate record, he could elect another Board hearing. In correspondence dated in April 2008, the Veteran indicated that he did, in fact, desire another Board hearing at the RO. In May 2008, the Board remanded the claim for the requested hearing, and, in August 2008, the Veteran testified during a hearing before the undersigned VLJ at the RO; a transcript of that hearing is of record. In October 2008, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the AMC continued to deny the claim (as reflected in a January 2010 SSOC) and returned the matter to the Board for further consideration. The Board notes that, at certain points during this appeal, the RO has addressed the claim for service connection for bronchitis/COPD on the merits. However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received-and, in view of the Board's favorable decision on the request to reopen-the Board has characterized this appeal as encompassing the two matters set forth on the title page. The Board's decision addressing the request to reopen the claim for service connection for bronchitis/COPD is set forth below. The claim for service connection, on the merits, is addressed in the remand following the order; that matter is being remanded to the RO, via the AMC, in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. In an October 1969 rating decision, the RO denied service connection for bronchitis; although notified of the denial in an October 1969 letter, the Veteran did not initiate an appeal. 3. New evidence added to the record since the October 1969 rating decision, when considered by itself or with the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for bronchitis/COPD. CONCLUSIONS OF LAW 1. The October 1969 rating decision in which the RO denied service connection for bronchitis is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2009). 2. As evidence pertinent to the claim for service connection for bronchitis/COPD, received since the RO's October 1969 denial, is new and material, the criteria for reopening the claim for service connection for bronchitis/COPD are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156 (as in effect for claims filed prior to August 29, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Given the favorable disposition of the claim to reopen, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As indicated above, the RO denied the Veteran's claim for service connection for bronchitis in October 1969. The evidence of record at the time consisted of service treatment records and a VA examination report. The service treatment records showed a diagnosis of chronic bronchitis during service. The VA examination report showed a diagnosis of chronic pulmonary disease with history of fungus infection. In an October 1969 rating decision , the RO noted that, during service the Veteran gave a history of having 35 colds a year, and three months prior to induction, he had pneumonia. He stated that he was short of breath and had been all his life. A diagnosis of bronchitis, chronic, was made . The report of separation examination includes a notation of bronchitis existing prior to service. The RO concluded by noting that VA chest examination showed inspiratory and expiratory wheezes, rales, and rhonchi throughout both lung fields that are not cleared by extensive coughing. The letter to the Veteran notifying him of the decision relayed that his claim was denied because chronic pulmonary disease was not incurred in or aggravated by service. Although notified of the denial later in October 1969, the Veteran did not initiate an appeal with the October 1969 RO decision. See 38 C.F.R. § 20.200. The RO's October 1969 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran sought to reopen his previously denied claim in January 2001. Regarding petitions to reopen filed prior to August 29, 2001, 38 C.F.R. § 3.156(a) provides that new and material evidence is evidence not previously submitted that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's October 1969 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Pertinent evidence added to the claims file since October 1969 includes letters from the Veteran's family and friends indicating that he did not have bronchitis prior to service. Medical records show post-service diagnoses of pulmonary emphysema, chronic bronchitis, and COPD throughout the years. The Board finds that the above-described evidence provides a basis for reopening the claim for service connection for bronchitis/COPD. Presuming the credibility of the evidence, the new evidence indicates that the Veteran did not have an observable pulmonary disability prior to service, but that, after service, he sought treatment for and was diagnosed with pulmonary conditions including chronic bronchitis (the same diagnosis made during service). The Board finds that the evidence is new in that it was not before agency decisionmakers at the time of the October 1969 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is material in that it tends to show that the Veteran has had chronic bronchitis since his service in 1969. The Board points out that, with respect to claims to reopen filed prior to August 29, 2001, the evidence to reopen must, at a minimum, "contribute to a more complete picture of the circumstances surrounding the origin of the appellant's injury or disability," even where it will not eventually convince VA to alter its decision. See Hodge, 155 F.3d at 1363; 38 C.F.R. § 3.156 (2001). As the Board finds that the newly received evidence, discussed above, meets this requirement, the Board, in turn, finds that new and material evidence to reopen the claim for service connection for bronchitis/COPD has been received. ORDER As new and material evidence to reopen the claim for service connection for bronchitis/COPD has been received, to this limited extent, the appeal is granted. REMAND The Board finds that RO development of the claim for service connection for bronchitis/COPD, on the merits, is warranted. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1137 (West 2002). In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this appeal, the report of the Veteran's entrance examination notes a normal examination of the lungs and chest. As such, it appears that the presumption of soundness applies. However, the record also includes a hospitalization report from January 1968 which notes that the Veteran reported having a cough all his life, 35 colds per year (according to the Veteran this is likely a typographical error and may be 3 to 5 colds per year), pneumonia 3 months prior to induction, and shortness of breath his entire life. The Veteran apparently had an abnormal lung scan during service and the Pulmonary Disease Service was consulted. Their impression was that the Veteran was not suffering from multiple pulmonary emboli because there was neither clinical correlation nor radiographic evidence to go along with the diagnosis. They felt that the lung scan and the Veteran's past medical history and physical findings were more consistent with chronic pulmonary disease such as chronic bronchitis. Chronic bronchitis was diagnosed. A Medical Evaluation Board determined that the Veteran had chronic bronchitis that existed prior to service and was not aggravated during service. Post-service records show ongoing pulmonary complaints and diagnoses, including chronic bronchitis and COPD. However, there is no medical opinion that explicitly addresses whether the Veteran has current bronchitis/COPD due to service or in- service aggravation of a pre-existing condition. The Board finds that an opinion in this regard would be helpful in resolving the claim remaining on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under these circumstances, the RO should arrange for the Veteran to undergo VA respiratory examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the reopened claim. See 38 C.F.R. § 3.655(b) (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before VA examiner is complete, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. The RO's letter should explain that the Veteran has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). After providing the required notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for service connection for bronchitis/COPD that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses from each contacted entity are associated with the claims file, or, the time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo VA respiratory examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be provided to the physician designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies (to include chest x-rays) should be accomplished (with all findings made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner is requested to clearly identify all current pulmonary disability(ies). Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any such disability was incurred in or aggravated by service. In rendering the requested opinion, the examiner should specifically address whether any current disability (a) pre-existed service; and, if so (b) was aggravated (i.e., permanently worsened) beyond the natural progression during or as a result of service; and, if not (c) is otherwise medically related to the Veteran's service. In providing the requested opinion, the examiner should consider and address the service treatment records and prior VA examinations (September 1969 and October 1975). The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for bronchitis/COPD. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim for service connection, on the merits, in light of pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2009). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs