Citation Nr: 1117804 Decision Date: 05/09/11 Archive Date: 05/17/11 DOCKET NO. 06-07 464 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for pulmonary disability, to include asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from July 1964 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the VARO in Phoenix, Arizona. The case was previously before the Board in January 2010 at which time it was remanded primarily for procedural purposes. The case has been returned to the Board for appellate review. FINDINGS OF FACT 1. Service connection for asbestosis was denied by rating decision dated in August 2002. No timely appeal was taken from the determination, and it is final. 2. Evidence received since the August 2002 rating decision denying service connection for asbestosis is not cumulative or redundant of other evidence of record, and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for asbestosis. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326. With respect to the issue being decided at this time, the Board is granting the benefit sought on appeal. Accordingly, assuming, without deciding, that any errors were committed with regard to the duty to assist or the duty to notify, such error was harmless and will not be further discussed. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision may not be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary of VA will reopen a finally disallowed claim when new and material evidence has been presented or secured with respect to that claim and then review the former disposition of the claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 U.S.C.A. § 3.156(a). In considering whether there is "new and material evidence," all evidence submitted since the last prior final decision must be considered. Evans v. Brown, 9 Vet. App. 27 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Pulmonary Disability, to include Asbestosis Evidence of record at the time of the August 2002 rating decision included the service treatment records and reports of post service VA treatment and evaluation beginning from the late 1990's. The records included the report of an examination at a VA facility in January 2001 showing a normal pulmonary examination with no complaints of cough or excessive sputum production. The service treatment records themselves were without reference to complaints or findings indicative of the presence of asbestosis. Evidence received since the 2002 decision includes additional reports of VA treatment and evaluation. The evidence includes reports of imaging done in December 2003 and January 2004 showing no confirmed diagnosis of asbestosis or asbestos-related lung disease. A CT scan in January 2004 showed minimal pleural thickening and only a single calcific focus in the pleura, which made it difficult to exclude a component of asbestosis, but was reported as not diagnostic as such. The evidence also includes the report of a respiratory (obstructive, restrictive, and interstitial) examination of the Veteran by VA in January 2008. The claims file was reviewed by the examiner and he noted that the Veteran worked as a boiler man technician while on active service. Following clinical examination, the examiner made an impression of evidence of restrictive airway disease. He stated that boiler room experiences the Veteran described to him were compatible with significant asbestos exposure. The Veteran had a restrictive airway disease and minimal X-ray findings to date that "are not diagnostic." He expressed the opinion that "asbestosis, the present respiratory restrictive lung disease, is at least as likely as not caused by or a result of prior asbestos exposure; although, a definitive diagnosis of the asbestosis cannot be made from the materials presented to date." He stated he asked for additional studies to compare them with previous findings in 2004. In an addendum, he stated the chest X-ray findings and CT scan of the lung showed atelectasis, but no fibrosis, pleural calcification, or plaque. He stated "there are no conclusive finding clarifiable with asbestosis exposure or asbestosis." It was found that the pulmonary function testing disclosed minimal restrictive defects likely secondary to obesity. The aforementioned medical evidence is sufficiently new and material to warrant reopening of the claim. Accordingly, VA must review the claim in light of all the evidence, both new and old. 38 C.F.R. § 3.156. The VA physician who examined the Veteran in January 2008 noted that testing done to that time was not conclusive with regard to asbestos related lung disease. He initially opined that asbestosis, what he reported as the Veteran's present respiratory restrictive lung disease, was at least as likely as not caused by or a result of prior asbestos exposure, but he then indicated that following testing, there were no conclusive findings with regard to asbestos exposure or asbestosis. Therefore, although this new evidence is not definitive as to the etiology of any pulmonary disease, to include resulting from asbestos exposure, the evidence submitted is probative and presumed credible for the sole purpose of determining whether the case should be reopened; determinations of credibility and weight are made after the claim is reopened. Justus v. Principi, 3 Vet. App. 510 (1993). ORDER New and material evidence to reopen the previously denied claim of entitlement to service connection for asbestosis has been received; to this extent only, the appeal is granted. REMAND Because the claim for service connection for a pulmonary disorder, to include as a result of exposure to asbestos, has been reopened with the submission of new and material evidence, additional assistance in developing evidence pertinent to the Veteran's claim must be provided. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Board believes the Veteran must be provided a VA examination, with nexus opinion, which includes a claim file review by the examiner. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The case is REMANDED for the following: 1. The Veteran should be accorded a VA respiratory (obstructive, restrictive, and interstitial) examination by a physician knowledgeable in respiratory disorders. The claims file should be reviewed in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. These include, but are not limited to, pulmonary function testing and CT scan. The examiner is asked to provide as definitive a diagnosis as possible and opine as to whether any disorder identified is at least as likely as not (that is, a 50 percent probability or more) related to the Veteran's active service, to include his time spent on naval ships, including boiler rooms. The complete rationale should be provided for any opinion or conclusion expressed. If the examiner cannot provide an opinion without resorting to speculation, this should be so stated. 2. After assuring compliance with the above development, as well as with any other notice and development action required by law, the VA should review the reopened claim of service connection. If the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case, and be given an opportunity to respond, before the case is returned to the Board for appellate review. By this REMAND, the Board intimates no opinion as to any final outcome warranted. However, the Veteran is placed on notice that pursuant to the provisions of 38 C.F.R. § 3.655, failure to cooperate by not attending any requested VA examination may result in an adverse determination. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs