Citation Nr: 1108991 Decision Date: 03/07/11 Archive Date: 03/17/11 DOCKET NO. 09-11 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disease, to include chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for a respiratory disease, to include COPD. REPRESENTATION Appellant represented by: Samuel M. Tumey, Esq. ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from January to August of 1946 and from March 1948 to June 1949. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a July 2010 decision, the Board denied the application to reopen the previously denied claim of entitlement to service connection for a respiratory disorder, to include COPD, on the basis of new and material evidence having not been received. Thereafter, the Veteran appealed the Board's denial of his claim to the United States Court of Appeals for Veterans Claims (Court). In November 2010, the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (Joint Motion) with respect to the Veteran's claim. The Joint Motion moved for the Court to vacate and remand the July 2010 Board decision as the parties determined that the Board erred in its decision not to reopen the Veteran's claim. In November 2010, the Court granted the parties' Joint Motion and remanded the case back to the Board for readjudication consistent with the Joint Motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for a respiratory disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In a February 2007 decision, the Board determined that new and material evidence had not been received to reopen the previously denied claim of entitlement to service connection for a respiratory disease, to include COPD. 2. In accordance with the Joint Motion, it has been determined that the evidence received since the February 2007 Board decision raises a reasonable possibility of substantiating the claim of service connection for a respiratory disease, to include COPD. CONCLUSIONS OF LAW 1. The February 2007 Board decision, which denied the Veteran's application to reopen the claim of entitlement to service connection for a respiratory disorder, to include COPD, is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104(a), 20.1100 (2010). 2. Since the February 2007 Board decision, new and material evidence has been received to reopen the claim of service connection for a respiratory disease, to include COPD. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(A), 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In this case, the Board is reopening and remanding the claim of entitlement to service connection for a respiratory disorder. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Legal Criteria for New and Material Evidence Claims The Veteran seeks to reopen a previously denied claim for service connection for a respiratory disease. The Veteran's claim for service connection for a respiratory disease was previously denied in a February 2007 Board decision on the basis of new and material evidence having not been submitted. While it appears that the Veteran subsequently filed an appeal to U.S. Court of Appeals for Veterans Claims (the Court), he later moved to dismiss the appeal. An August 2007 Order of the Court reflects that the appeal was dismissed. As such, the February 2007 Board decision is the most recent final decision of record. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Thus, his claim for service connection for a respiratory disease may only be reopened if new and material evidence is submitted. The Board notes that once a decision denying service connection becomes final, a disallowed service connection claim shall only be reopened and reviewed if new and material evidence is presented or secured with respect to the final claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. In the February 2007 Board decision, the Board determined that new and material evidence had not been received to reopen the claim of service connection for a respiratory disease. In denying the claim, the Board determined that the Veteran's newly submitted evidence was not material as there continued to be no new medical evidence as to the etiology of the Veteran's respiratory disorder. At the time of the February 2007 Board decision the evidence of record included the following: the Veteran's available service treatment records, showing a diagnosis of pneumonia in May 1946, a diagnosis of chronic bronchitis in June 1946, and X-ray findings of rales in the lung in July 1946; VA medical treatment records showing a diagnosis of resolved viral pneumonitis in February 1976, pneumonia, chronic bronchitis and COPD in March and April of 1993, and treatment for respiratory disorders; a November 1999 letter from T.M.B., M.D., opining that the Veteran's COPD was possibly due to in-service pneumonia or in-service chemical exposure; numerous VA examination reports; a June 2000 report from the U.S. Army Soldier and Biological Chemical Command stating that no information could be provided concerning the Veteran's alleged exposure to vesicating agents; an August 2001 VA respiratory examination report that included a medical opinion that the Veteran's COPD was not related to his in-service bronchitis and pneumonia; an unsigned document entitled "Suggested Statement by Physician," which the Veteran purported to be the March 2006 opinion of Dr. R.M. linking his respiratory disease to his military service; an excerpt from the October 2002 Board decision summarizing the Veteran's in-service medical treatment history that was attached to Dr. R.M.'s alleged March 2006 opinion; an undated and unsigned letter from B.M.C., which included the medical opinion that it was possible for the Veteran's COPD to be caused by pneumonia or chemical exposure during his military service; transcripts from the Veteran and his daughter's testimony during a June 2004 formal hearing and an October 1999 video conference hearing; the Veteran's statements; internet articles regarding respiratory conditions; and private medical records showing treatment for chronic bronchitis and COPD. In July 2007, the Veteran submitted additional evidence in support of his claim for service connection for a respiratory disorder. Specifically, he submitted a July 2007 letter for his private physician, D.L.Y., M.D. In the letter, Dr. D.L.Y. stated that the Veteran has chronic bronchitis, which is also called COPD, and that this disorder was a continuation of the condition that was diagnosed in-service as chronic bronchitis. Attached to the letter was a summary of the Veteran's in-service medical history as excerpted from page 4 of an October 2002 Board decision that denied the service connection claim for a respiratory disorder on the basis of new and material evidence having not been submitted. Dr. D.L.Y. indicated that he examined the attached summary and that he took the summary into account in submitting his medical opinion. In October 2007, the Veteran requested that his claim for service connection for COPD be reopened based on the submission of Dr. D.L.Y.'s July 2007 opinion letter and accompanied attachment. In February 2008, the Veteran resubmitted a copy of Dr. D.L.Y.'s July 2007 letter and excerpted attachment, along with duplicates of additional evidence that was previously of record. This duplicative evidence included: portions of his VA treatment records; the undated, B.M.C. letter indicating that the Veteran's COPD is possibly due to pneumonia or chemical exposure during his military service; and Dr. T.M.B.'s November 1999 opinion letter. Subsequently, the Veteran's VA treatment records, dated from March 2003 to July 2009, were associated with the claims file. These records show continued treatment for respiratory disorders. In accordance with the Joint Motion, new and material evidence has been received to reopen the claim for service connection for a respiratory disorder. The new evidence consisting of Dr. D.L.Y.'s July 2007 medical opinion is clearly new it was not previously of record. It has also been found to be material, in that it provides a new theory of causation of the Veteran's respiratory disorder; namely, indicating that the Veteran's chronic bronchitis, also known as COPD, could possibly be a continuation of chronic bronchitis in service. This evidence is deemed new and material because represents a possible nexus between the Veteran's diagnosed respiratory disorders and his military service in a manner that was not previously presented to VA. In a subsequent statement provided by the Veteran's representative in January 2011, it was argued that the evidence suggests continuity of the Veteran's respiratory symptomatology following his separation from active duty. In view of the above, it has been determined that new and material has been received. Therefore, reopening the Veteran's claim of service connection for a respiratory disorder, to include COPD, is in order. ORDER New and material evidence having been received, the claim for service connection for a respiratory disorder, to include COPD, is reopened. To this extent and to this extent only, the appeal is granted. REMAND As was explained earlier herein, the Veteran's claim of entitlement to service connection for a respiratory disorder is being reopened on the basis of new medical evidence indicating a new theory of causation related to service incurrence and because of a possible continuity of symptomatology between the Veteran's in-service respiratory symptomatology and his current respiratory disorder. Having reviewed the medical evidence of record, however, the Board finds that additional development is needed prior to rendering a decision with respect to the Veteran's claim. As noted above, the claims file includes multiple medical opinions regarding whether the Veteran's current respiratory disorder is related to his military service. Although the record includes the November 1999 and July 2007 opinions from private physicians Drs. T.M.B. and D.L.Y., these opinions are inadequate with which to decide the Veteran's claim, as they are speculative and/or are not supported by any clinical data or a medical rationale. See generally, Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The Board finds the August 2001 VA opinion also to be flawed, as it does not take into account or discuss the favorable private opinions of record; thus, the August 2001 VA opinion does not constitute a detailed and comprehensive analysis of all of the medical evidence of record. In light of the foregoing, the Board finds that additional development is needed in this case. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering a medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Given that the medical opinions and supporting clinical data of record are inadequate with which to decide the Veteran's claim, the Board finds that an additional medical examination and opinion must be obtained so that all of the medical evidence can be properly considered and an appropriate medical examiner can provide a contemporaneous examination and opinion as to the nature and etiology of the Veteran's current respiratory disorder(s). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO/AMC shall attempt to obtain and associate with the claims file any VA medical records concerning the Veteran that may have been created since June 2009. The RO shall also contact the Veteran and his representative and to ascertain whether there may be any relevant and newly created private medical records that have not been obtained by VA and associated with the claims file. 2. The RO/AMC shall also arrange for the Veteran to undergo an appropriate VA examination to determine the nature and etiology of any current respiratory disorder(s); specifically, whether any such current respiratory disorder(s) is related to service. The entire claims file and a copy of this Remand must be reviewed by the examiner in conjunction with conducting the examination. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be performed. All findings should be reported in detail. In conjunction with the examination, the examiner shall opine whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed respiratory disorder is related to the Veteran's active duty service. In so opining, the examiner must consider and discuss any in-service respiratory symptomatology documented in the Veteran's service treatment records, as well as any reports of a continuity of respiratory symptomatology following the Veteran's separation from active duty. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. It is requested that the examiner consider and reconcile any additional opinions of record or any contradictory evidence regarding the above. If the examiner is unable to provide an opinion without resort to mere speculation, he or she should so indicate and explain why an opinion cannot be rendered. 2. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 3. Thereafter the RO will then readjudicate the Veteran's claim for service connection for a respiratory disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedures. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs