Citation Nr: 1120294 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 09-35 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of left lung hemorrhagic fever. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from October 1952 to October 1955, to include active service in Korea. Among the Veteran's decorations for his active service is a Combat Infantryman Badge (CIB). This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2011. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). The issue of entitlement to service connection for COPD is addressed in the REMAND following the order section of this decision. FINDINGS OF FACT 1. In an unappealed February 2007 rating decision, the RO denied reopening of the claim of entitlement to service connection for left lung hemorrhagic fever. 2. The evidence associated with the claims file subsequent to the February 2007 rating decision is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen a claim of entitlement to service connection for residuals of left lung hemorrhagic fever. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in July 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The July 2008 letter also informed the Veteran of the basis of the prior denial and provided appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment records have been obtained, and private medical records have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board acknowledges that the Veteran has not been provided a VA examination in response to his claim to reopen and that no VA medical opinion has been obtained in response to this claim, but notes that VA has no obligation to provide such an examination or obtain such an opinion if new and material evidence has not been presented. See 38 C.F.R. § 3.159 (c)(4). Accordingly, the Board will address the merits of the claim to reopen. Legal Criteria Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The Veteran originally filed his claim of entitlement to service connection for left lung hemorrhagic fever in February 2006. In a June 2006 rating decision, the Veteran was denied entitlement to service connection for left lung hemorrhagic fever based on a finding that the Veteran did not have a current disability related to hemorrhagic fever. The Veteran did not appeal this decision. In a February 2007 rating decision, the RO denied reopening of the claim based on its determination that new and material evidence had not been presented. The Veteran did not appeal this decision. The evidence of record at the time of the February 2007 rating decision included the following: the Veteran's report that he had left lung hemorrhagic fever while in active service; the Veteran's STRs, which were negative for treatment for or a diagnosis of left lung hemorrhagic fever while the Veteran was in active service; a June 1961 VA examination report, showing that the Veteran's respiratory system was found to be clear to percussion and auscultation; a July 1970 VA examination report, indicating that physical examination of the Veteran's respiratory system was essentially negative; an April 2006 statement from the Veteran's ex-spouse, in which she reported that she was married to the Veteran while he was in active service, that he contracted hemorrhagic fever in 1951 and 1952 and that he was treated again in the 1960s; a March 2006 statement from the Veteran's sister in which she reported that the Veteran contracted hemorrhagic fever while in active service and that he was treated after his separation in the 1960s; an October 2005 private treatment record showing that the Veteran had COPD; a May 2006 statement from a friend of the Veteran in which it was reported that the Veteran experienced trouble walking because of breathing trouble caused by a lung condition; a May 2008 letter from the Veteran's private physician confirming the Veteran's diagnosis of COPD; and VA Medical Center treatment notes indicating that the Veteran has reported a history of hemorrhagic fever to his current treatment providers. The pertinent evidence that has been received since the unappealed rating decision consists of the following: a September 2008 private pulmonary function test (PFT) report, showing that the Veteran has moderate COPD; a July 1974 VA bronchoscopy report which was noted to be negative; a July 1974 VA chest X-ray report in which it was noted that the Veteran's heart and lungs were essentially clear; an August 1974 VA chest X-ray report which showed that the Veteran's lungs were clear; a July 1974 VA treatment note in which it is noted that the Veteran had a diagnosis of chronic bronchitis and emphysema; a May 2009 statement from Ms. S.H., a friend of the Veteran, in which she reported that the Veteran had breathing problems; and the Veteran's February 2011 Board testimony at which time he reported that he was diagnosed with left lung hemorrhagic fever while in active service. The Board finds that the evidence received since the February 2007 rating decision is cumulative and redundant in nature and that it does not relate to the reason the claim was originally denied. The Veteran's statements indicating that he had hemorrhagic fever in service are cumulative of the evidence previously of record. Lay evidence indicating that the Veteran has breathing problems is also cumulative in nature since the evidence previously of record included similar lay evidence and medical evidence showing that the Veteran had COPD. The claim was previously denied because of the absence of any competent showing that the Veteran currently had hemorrhagic fever or any residuals thereof. No competent evidence of the post-service presence of hemorrhagic fever or any residuals thereof has been added to the record. Therefore, reopening of the claim is not in order. The Board acknowledges that the Veteran does have a current diagnosis of COPD; however, this is a separate disorder which is addressed in the REMAND below. ORDER The Board having determined that new and material evidence has not been presented, reopening of the claim for entitlement to service connection for residuals of left lung hemorrhagic fever is denied. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for COPD is decided. At his February 2011 Board hearing, the Veteran reported that while he was in active service he was exposed to chemicals while working with and firing artillery while serving in Korea. He also reported that he was exposed to asbestos while in active service. A review of the Veteran's DD Form 214 shows that he was qualified as a field artilleryman while in active service. Additionally, the Veteran had active service in Korea and was awarded a CIB for his service there. At this time, the Board concedes the Veteran's exposure to chemicals, including asbestos, while working as a field artilleryman in active service. The Veteran has reported that he first experienced breathing problems while in active service and that he has continued to experience the problem since his separation from active service. He also reported that while serving in Korea he received breathing treatments at the various mobile Army surgical hospitals (MASH) and that he was sent back to the field following the breathing treatments. The Veteran reported that he did not recall a diagnosis ever being made while receiving breathing treatments at the MASH units. The Board notes that a review of the Veteran's STRs is negative for the breathing treatments described by the Veteran. However, the Veteran reported that the treatment he received was quick and not very organized as it was provided in the field. The Veteran is competent to report when he first experienced breathing problems and that they have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible. A review of the post-service medical evidence shows that the Veteran was diagnosed with chronic bronchitis and emphysema as early as July 1974. Additionally, current treatment notes indicate that the Veteran has COPD. In light of the Veteran's reports of breathing problems in active service, his conceded chemical exposure during active service, and current medical records showing that the Veteran has COPD; the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his COPD. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, this case is remanded to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records, to include VA Medical Center treatment notes. 2. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of the Veteran's COPD. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion with as to whether there is a 50 percent or better probability that the Veteran's COPD is related to his active service, to include the Veteran's exposure to chemicals, including asbestos, during active service. The examiner should presume that the Veteran is a reliable historian with respect to his reported chemical exposure in service and his reported breathing treatments received in the field while in Korea. The supporting rationale for all opinions expressed must be provided. 3. The RO or the AMC should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for COPD based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). As noted above, this case has been advanced on the Board's docket. It also must be afforded expeditious treatment by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs