Citation Nr: 1106093 Decision Date: 02/15/11 Archive Date: 02/28/11 DOCKET NO. 06-38 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a respiratory disorder, to include asthma and chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1958 to November 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa that denied the Veteran's application to reopen a claim of entitlement to service connection for a respiratory disorder, to include asthma and COPD (previously characterized as asthma/breathing problems). Despite a determination reached by the RO to reopen the claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Board has determined that new and material evidence has been received. The claim is reopened and the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In December 1987, an unappealed RO decision denied service connection for a lung condition. 2. Evidence submitted since the RO's December 1987 decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a respiratory disorder, to include asthma and COPD. CONCLUSIONS OF LAW 1. The December 1987 RO decision denying the Veteran's claim of entitlement to service connection for a lung condition is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a respiratory disorder, to include asthma and COPD, has been received. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's application to reopen his claim of entitlement to a respiratory disorder, to include asthma and COPD, is granted, and the claim is reopened and remanded, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis A. Application to Reopen According to the Court, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). New evidence means 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 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) (2010). The Veteran served on active duty from March 1958 to November 1958. The preliminary issue is whether new and material evidence has been received to reopen the Veteran's previously denied claim of entitlement to service connection for a respiratory disorder, to include asthma and COPD. After a review of the evidence of record, the Board finds that new and material evidence has been received. By way of background, a December 1987 RO decision denied the Veteran's claim of entitlement to service connection for a lung condition on the basis that the Veteran had a preexisting respiratory disorder, noted as asthma, that was not aggravated by service. In November 1988, the Veteran submitted additional evidence consisting of two lay statements from his parents and a former employer, and a December 1988 RO decision continued the denial of the Veteran's claim on the same basis and noting that the new lay statements did not establish that the Veteran had a lung condition that was incurred in or aggravated by service. The Veteran did not file a notice of disagreement, and the RO's decisions became final. See 38 C.F.R. §§ 20.302, 20.1103 (2010). In July 2004, the Veteran filed a request to reopen his claim. At the time of the December 1987 RO decision, the evidence of record included the Veteran's service treatment records from the Navy, including records of his in-service hospitalization in August 1958 for asthma and recommended medical board discharge in October 1958 for asthma found to preexist service and not be aggravated by service. The record also included VA treatment records dated from August 1968 to July 1987 and private treatment records dated from May 1983 to July 1987 reflecting diagnosed emphysema in February 1983, chronic asthma in May 1983, and COPD in June 1987, and reflecting notations of a 26 year history of smoking 1-2 packs of cigarettes per day as well as exposure to caustics and lead in his radiator shop for over 23 years, but no notations relating to any respiratory problems in service. As noted above, two lay statements were subsequently submitted by the Veteran in support of his claim in November 1988, and a December 1988 RO decision confirmed the denial of the Veteran's claim. Since the final December 1987 and December 1988 RO decisions, new evidence associated with the claims file in connection with the Veteran's application to reopen his claim includes private treatment records dated from October 1997 to October 2006, VA treatment records dated from February 2002 to January 2007, a June 2006 VA examination report, and a May 2007 VA medical opinion. The Board notes that an October 2006 private treatment record prepared by Dr. J.G. and an October 2006 letter prepared by him reflect that he opined that chemical exposure in service could have caused or might have contributed to the Veteran's lung disease. The Board finds that the June 2006 VA examination report, May 2007 VA medical opinion, and the October 2006 treatment record and letter from Dr. J.G. satisfy the low threshold requirement for new and material evidence. As such, the claim is reopened. At this point, however, the Board will not adjudicate the reopened claim, as further development is necessary. ORDER As new and material evidence has been submitted regarding the Veteran's claim of service connection for a respiratory condition, to include asthma and COPD, the Veteran's claim is reopened; to that extent only, the appeal is granted. REMAND The Veteran asserts that he has a respiratory disorder, to include asthma and COPD, that had its onset during his active service or is otherwise related to the respiratory problems he experienced in service. See, e.g., Statement January 2005; DRO Hearing Transcript at 1-2. He also asserts that he was exposed to various types of fuel, chemicals, and asbestos from cleaning agents in service that caused his respiratory condition. See Transcript at 4; VA Examination Report, June 2006 (asbestos). The Veteran's service treatment records reflect that he was hospitalized for asthma in August 1958, and that an October 1958 medical board opined that he had an asthmatic condition that preexisted service and was not aggravated by service, and the board found him unfit for further duty due to his asthma, based on which he was medically discharged. As noted above, subsequent private treatment records reflect diagnosed emphysema in February 1983, chronic asthma in May 1983, and COPD in June 1987, and recent VA and private treatment records reflect that the Veteran continues to be followed for his COPD. The Board notes that the Veteran was provided with a VA examination in June 2006, and a VA medical opinion was also obtained in May 2007 for further clarification. The June 2006 VA examination report reflects that the Veteran reported receiving disability income from the Social Security Administration (SSA) for 16 years due, in part, to his respiratory conditions. When VA is put on notice of the existence of SSA records potentially relevant to a Veteran's claim, VA should seek to obtain those records. See Hayes v. Brown, 9. Vet. App. 67, 73-74 (1996). Based thereon, the Board finds that a remand is necessary in order to obtain the Veteran's SSA records before a decision can be made on his claim. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all of the Veteran's pertinent SSA records and associate them with the claims file. If these records are found to be unavailable, this should be specifically noted in the claims file. 2. After the above development has been completed, perform any additional development necessary, and then readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs