Citation Nr: 1032909 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 09-03 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been presented to reopen the claim of service connection for chronic bronchitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The Veteran, who is the appellant, served on active duty from December 1948 to June 1952 and from January 1953 to February 1954, including service in the Korean War. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. FINDINGS OF FACT 1. In a rating decision in June 2000, the RO declined to reopen the claim of service connection for chronic bronchitis; after being notified of the rating decision and of his right to appeal, the Veteran did not file an appeal. 2. Evidence submitted since the June 2000 rating decision does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The rating decision in June 2000 by the RO became final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has not been presented since the rating decision in June 2000 by the RO and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2009). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously denied claim of service connection, VCAA notice requires information regarding the evidence and information that is necessary to reopen a claim, the definition of new and material evidence, and of what evidence and information is necessary to establish entitlement to the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by a letter dated in October 2007. The notice included the type of evidence needed to reopen the claim of service connection, that is, new and material evidence, namely, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and pertained to the reason the claim was previously denied. The claim was previously denied there was no medical evidence that linked bronchitis to service. The notice included the type of evidence needed to substantiate the underlying claim of service connection. The Veteran was also notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre- adjudication notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Kent v. Nicholson, 20 Vet. App. 1 (2006). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA t records. The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. Under the duty to assist, a VA medical examination or medical opinion is not authorized on a claim to reopen a previously denied claim of service connection unless new and material evidence is presented. 38 C.F.R. §3.159(c)(4)(iii). As new and material evidence has not been presented, a medical examination or opinion is not required under 38 C.F.R. § 3.159(c)(4). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence: Legal Standard The Veteran's claim of service connection for chronic bronchitis was previously denied in June 2000 because there was no medical evidence that linked bronchitis to service. Although that rating decision became final, it may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. §§ 7104 and 5108. As the application to reopen the claim was received in October 2007, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with 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 last 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. In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of the claim, that is, evidence that the Veteran has chronic bronchitis which is related to his military service. In determining whether evidence is new and material, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence Previously Considered The evidence previously considered consists of the service treatment records showing treatment for acute bronchitis in June 1952. On separation examinations in June 1952 and in February 1954, there was no finding of bronchitis as a current or chronic condition. After service, VA records from 1969 and from August 1988 to April 2000 show one incident of acute bronchitis in January 1999. Additional Evidence The additional evidence presented since the rating decision in June 2000 includes VA records from April 2001 to February 2010 and the Veteran's testimony at a hearing in June 2010. As for the VA records, the records show that the Veteran was diagnosed with acute bronchitis in January 2003, in February 2005, and in September 2008. This evidence is cumulative, that is, supporting evidence of evidence previously considered, that is, treatment many years after service for bronchitis without evidence of a link to service, and cumulative evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. In his testimony, the Veteran stated that he had experienced lung problems, specifically bronchitis, in service. He said that while stationed in Korea he experienced temperatures of 20 to 30 degrees below zero, a climate he had never been in before, and that the truck he rode did not have a functional heater. To the extent the Veteran's testimony describes bronchitis in service, the testimony is cumulative, that is, supporting evidence of evidence previously considered, that is, treatment of acute bronchitis in 1952 in service, and cumulative evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. To the extent the Veteran's testimony is offered as relating post-service bronchitis to acute bronchitis in service, whereas here the determination involves a question of causation, under certain circumstances, a lay person is competent to offer an opinion on a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer)). Whether evidence is competent is a legal question, that is, whether the evidence is admissible as distinguished from the credibility of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.). In this case, whether the Veteran's post-service bronchitis, first shown 45 years after service, is due to acute bronchitis in service cannot be determined by one's own personal observation without having specialized education, training, or experience. 38 C.F.R. § 3.159. And it is not argued or shown that the Veteran or lay witness is otherwise qualified through specialized, education, training, or experience to offer an opinion on the causation in this case. For this reason, the Veteran's testimony is not competent evidence on the unestablished fact necessary to substantiate the claim, that is, evidence of current bronchitis linked to acute bronchitis in service, the absence of which was the reason the claim was previously denied. And evidence that is not competent is not admissible or to be considered and therefore raises no reasonable possibility of substantiating the claim. Although the Veteran is competent to relate contemporaneous medical diagnoses and symptoms that later support a diagnosis by a medical professional, no such evidence has been presented. As the additional evidence is not new and material, the claim of service connection bronchitis is not reopened, and the benefit- of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been presented the claim of service connection for chronic bronchitis is not reopened, and the appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs