Citation Nr: 1237316 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 11-22 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material has been received to reopen a claim for service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis. 2. Entitlement to service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis. 3. Entitlement to service connection for idiopathic dilated cardiomyopathy with pacemaker installation. 4. Entitlement to service connection for bilateral knee disability, status post bilateral total knee replacement. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran had active duty service from November 1948 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico that determined that new and material evidence had not been submitted to reopen a claim for service connection for bronchitis, multiple calcific pleural plaques in both lungs claimed as asbestosis; and denied service connection for idiopathic dilated cardiomyopathy with pacemaker installation and for a bilateral knee disability. The Veteran was afforded a July 2012 hearing before the undersigned at the RO. A transcript of the hearing is associated with claims folder. The Veteran submitted additional evidence following the most recent review by the agency of original jurisdiction (AOJ). In July 2012, he waived his right to AOJ review of the additional evidence. See 38 C.F.R. § 20.1304(c). A review of the Virtual VA paperless claims processing system does not show any pertinent records that are not already associated with the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis, idiopathic dilated cardiomyopathy, and bilateral knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a September 2007 decision, the RO denied a claim for service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis, as the record did not show a nexus to active service. 2. The Veteran did not submit a notice of disagreement, and new and material evidence was not received, within one year of the notice of the September 2007 RO decision. 3. Evidence received since the September 2007 RO decision denying service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis is not cumulative or redundant of the evidence previously of record, pertains to an element of the claim that was previously found to be missing, and raises a reasonable possibility of substantiating the underlying claim for service connection. CONCLUSIONS OF LAW 1. The RO's September 2007 decision denying service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2012). 2. The evidence received since the September 2007 RO decision is new and material and sufficient to reopen the claim for service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the petition to reopen, it is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Petition to reopen Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). However, 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. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In September 2007, the RO denied service connection for bronchitis, multiple calcified pleural plaques in both lungs claimed as asbestosis, due to absence of a nexus to service. The Veteran was notified of the RO's decision, but did not submit a notice of disagreement or additional evidence within a year of the decision. The September 2007 RO decision became final. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2012). Evidence considered in the September 2007 RO decision included the following: private medical records dated from February 2003 through January 2004, VA treatment records, dated from May to July 2007, and statements by the Veteran. Private medical records confirm that the Veteran had a diagnosis of bronchitis with multiple calcified pleural plaques in both lungs. Both private and VA treatment records reflected a history of asbestos exposure. In May 2007, the Veteran reported that he had in-service asbestos exposure while working on military trucks and tanks. Evidence received since the September 2007 RO decision includes additional private medical records, hearing testimony, and additional written statements by the Veteran. Newly received private medical records, dated in January 2004, reflect that the Veteran had pulmonary fibrosis. Clinical examination included evidence of pleural plaques suggesting asbestosis. In November 2008, the Veteran provided additional details about his unit assignment. He reported asbestos exposure from working on tank brakes. He also reported having a post service career as a sheet metal worker. In October 2009, Dr. R.B. stated that the Veteran related a history of asbestos exposure from 1954 to 1967 while working at an unspecified base. He appears to note a history of asbestos exposure from performing ceiling duct work without direct asbestos exposure. He stated that the latency period for asbestosis is generally inversely proportional to the amount of exposure. In July 2012, Dr. R.B. acknowledged that the Veteran had a history of asbestos exposure and stated that he believed it contributed to his current pulmonary fibrosis with asbestosis. At the July 2012 hearing, the Veteran clarified that he was exposed to asbestos in service and did not have any post service exposure. He stated that his military occupational duties involved tank brake maintenance. Following service, he worked as a sheet metal fabricator and was not exposed to asbestos. He began developing respiratory problem in approximately 1995 and subsequently retired due to breathing difficulties. The additional evidence is new in that it was not previously of record. At the time of the prior denial there was no explicit finding that the current lung disease was related to the claimed asbestos exposure. The newly received January 2004 treatment record includes a diagnosis of lung disease linked to asbestos exposure. In July 2012, Dr. R.B. also related the Veteran's current pulmonary disorder to a history of asbestos exposure (albeit post service). This pertains to an element of the claim that was previously found to be missing-a nexus to service. The record contains competent evidence of a current disability and evidence that the disability may be related to service, as such it would trigger VA's duty to provide an examination and is therefore reasonably likely to substantiate the claim. Shade. In sum, the newly submitted evidence is new and material. The petition to reopen a claim of service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis is granted. ORDER New and material evidence having been received, the claim for service connection for bronchitis, multiple calcified pleural plaques in both lungs, claimed as asbestosis is reopened and to this extent granted. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. There is competent evidence of a current lung disability related to asbestos exposure, and the Veteran has provided competent evidence of in-service asbestos exposure. On the other hand there is evidence of years of post-service asbestos exposure. An opinion is needed as to the likelihood that the current lung disease is related to the in-service exposure. The Veteran's DD 214 confirms that he served in Germany as part of an Anti-aircraft artillery unit. Unfortunately, his service treatment records are unavailable as they were likely destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. See May 2007 NPRC response. In instances of missing or unavailable service records, VA has a heightened duty to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Regarding the claimed bilateral knee disabilities, the Veteran reported having significant stress on his knees from military exercises. He denied any treatment during service and reported that he noticed knee pain about twelve years ago. Private medical records suggest that the Veteran also had a significant history of joint stress as a heating, ventilation, and air conditioning (HVAC) repairman. See June 2008 Dr. P.L. treatment records. Private medical records confirm that the Veteran underwent total knee replacement for both knees in September 2007 due to severe degenerative joint disease. Given the heightened duty to consider lay evidence and assist the Veteran in developing his claim, the low threshold for getting an examination is met. Cromer, 19 Vet. App. 215. For the claimed heart disorder, the Veteran asserts that it is secondary to his asbestos related lung disease. See July 2012 hearing transcript. Recent private medical records suggest that the Veteran's chronic heart failure may be related to chronic obstructive pulmonary disease (COPD). See May 2012 private hospital records. The issue of service connection for heart disease is intertwined with the claimed lung disease. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Upon remand an additional medical opinion for this issue is necessary, if and only if, the medical examiner believes the Veteran has a lung disease related to in-service asbestos exposure as detailed below. 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) (2011). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine whether his current lung disease is caused by in-service asbestos exposure. All indicated tests and studies should be conducted. The examiner should review the claims folder, including this remand, and relevant records in Virtual VA. The examiner should provide the following opinions: Whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lung disease is related to reported in-service asbestos exposure. If the examiner determines that the Veteran has a lung disease that is related to in-service asbestos exposure, provide the following two opinions: (i) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's current heart disease was caused (in whole or in part) by his asbestos related lung disease. (ii) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's current heart disease was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by asbestos related lung disease. The examiner should note whether there is medical evidence created prior to any aggravation, or the earliest evidence created at any time between the time of aggravation and medical evidence showing the current level of severity of the current disability, that shows a baseline of the heart disease prior to the aggravation. In formulating the above opinions, the examiner must acknowledge and comment on the significance, if any, of Dr. R.B.'s October 2009 and July 2012 letters. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. Schedule the Veteran for a VA examination to determine whether his current bilateral knee disabilities are related to a disease or injury in service. All indicated tests and studies should be conducted. The examiner should review the claims folder, including this remand, and relevant records in Virtual VA records. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any current knee disability had their onset in service, or is otherwise the result of a disease or injury in service, including reports of strenuous physical activity. In formulating the above opinion, the examiner must acknowledge and comment on the significance, if any, of Dr. P.L.'s June 2007 and June 2008 records and the contention that the Veteran's post service occupation caused severe degenerative arthritis in both knees. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of reported treatment for a knee disability during, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. The AOJ should review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 5. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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. 2011). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs