Citation Nr: 1237320 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-24 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a shortness of breath disability due to asbestos exposure. 2. Entitlement to service connection for a shortness of breath disability due to asbestos exposure. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a Hepatitis C disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from March 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran was scheduled for a hearing before the Board in February 2011 hearing, but failed to appear. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2012). The Veteran's claim of entitlement to non service-connected pension was granted by the RO in a May 2010 rating decision. That issue is no longer before the Board as the Veteran has been granted the full benefits sought. The issue of entitlement to service connection for a shortness of breath disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a December 2001 rating decision, the RO denied a claim of entitlement to service connection for a shortness of breath disability due to asbestos exposure and a claim of entitlement to service connection for a Hepatitis C disability. That decision is now final. 2. The evidence associated with the claims file subsequent to the December 2001 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a shortness of breath disability due to asbestos exposure and raises a reasonable possibility of substantiating the claim. 3. The evidence associated with the claims file subsequent to the December 2001 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a Hepatitis C disability or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for a shortness of breath disability due to asbestos exposure have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2012). 2. The criteria for reopening the claim for service connection for a Hepatitis C disability have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient evidence is of record to reopen the Veteran's claim of entitlement to service connection for a shortness of breath disability due to asbestos exposure. Accordingly, whether or not VA has met its duties of notice and assistance is of no consequence, as there is no prejudice to the Veteran. Regarding whether new and material evidence has been received to reopen a claim of entitlement to service connection for a Hepatitis C disability, VA must notify the Veteran of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided the Veteran with compliant pre-adjudication notice by letter dated in December 2009. All necessary assistance has been provided to the Veteran, whereas VA has obtained service treatment records, VA outpatient treatment records, private outpatient treatment records, multiple statements from the Veteran and his representative, a statement from the Veteran's friend who served with him, and assisted the Veteran in obtaining evidence. The Veteran has not been given a VA examination in connection with his claim to reopen service connection for Hepatitis C; however, the duty to provide a medical examination or obtain a medical opinion applies to a claim to reopen only if new and material evidence is presented. 38 C.F.R. § 3.159(c)(4). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. New and Material Evidence to Reopen Claim The Veteran is claiming service connection for a shortness of breath disability due to asbestos exposure and a Hepatitis C disability. Service connection for such disabilities was first denied by the RO in a June 2000 rating decision. In a December 2001 rating decision, the RO continued the denial for both disabilities. This rating decision was not appealed and is final. 38 U.S.C.A. § 7105(c)(West 2002); 38 C.F.R. § 20.1103 (2012). The Veteran's subsequent request to reopen his claim of entitlement to service connection for a shortness of breath disability due to asbestos exposure and a Hepatitis C disability was denied by the RO in a January 2010 rating decision. Notwithstanding the RO's actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). A claim may be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. "New" evidence is evidence not previously submitted to agency decision-makers, and "material" evidence is evidence that, by itself or when considered with the 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 the 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 disallowed 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. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened, and VA may then evaluate the merits of the claim on the basis of all evidence of record. The requirement that new and material evidence raise a reasonable possibility of substantiating the claim is a very low threshold and should be read as enabling reopening, rather than precluding it. Shade v. Shinseki, 24 Vet. App. 110 (2010). Shortness of Breath due to Asbestos Exposure VA outpatient treatment records dated in February 2010 demonstrate a diagnosis of chronic obstructive pulmonary disease (COPD). This diagnosis was made approximately 42 years subsequent to the Veteran's discharge from service. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. New evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The February 2010 VA diagnosis of COPD, which was not of record at the time of the December 2001 rating decision (nor was any disability of the Veteran's lungs), as well as the Veteran's previously confirmed service as an able seaman for approximately one year and seven months aboard the USS Pictor (AF-54) addresses an unestablished fact. This diagnosis within the aforementioned latency period raises a reasonable possibility that the Veteran's current disability is related to service. The evidence received since the December 2001 rating decision is new and material and reopening the claim is warranted. Hepatitis C The Veteran's claim of service connection for Hepatitis C was denied in a December 2001 rating decision. The evidence associated with the claims file at the time of such decision included service treatment records, a statement from the Veteran's private physician dated in November 1999, and VA outpatient treatment records dated in 1999. Although there was a current disability, the claim was denied because the Veteran's service treatment records were negative for a diagnosis during service, and the evidence did not demonstrate a causal relationship between the disability and the Veteran's service, nor did it show that the Veteran was exposed to known risk factors while in service. Evidence added to the record since the time of the last final denial in December 2001 includes VA outpatient treatment records dated from May 2004 through February 2010; a statement from the Social Security Administration (SSA) dated in October 2009 indicating that the Veteran is in receipt of retirement benefits; multiple statements from the Veteran dated from December 2009 through May 2010; a statement from R.R., a fellow serviceman dated in January 2010; and a questionnaire pertaining to risk factors for Hepatitis C dated in January 2010. The VA outpatient treatment records and SSA statement are new in that they were not previously seen. The records and statement are not, however, material because they do not tend to establish a previously unestablished fact, namely the lack of competent and probative evidence that the Veteran's current Hepatitis C disability had its onset in service, or is causally related to service, or that the Veteran was exposed to known risk factors while in service. The records and statement do not raise a reasonable possibility of substantiating the claim, nor do they raise the possibility of further development which might tend to substantiate the claim. The record also includes the Veteran's histories and statements indicating that he has a current diagnosis of Hepatitis C, which he believes is related to his service. The Veteran's statements are not new as they are cumulative of previously considered statements reflecting histories of a diagnosis of Hepatitis C several years subsequent to discharge from service, which was reportedly related to service. R.R. submitted a statement indicating that he worked alongside of the Veteran aboard the USS Pictor. R.R. explained that during their service together, the rope tender lost control of the security device holding himself and the Veteran over the side of the ship while performing repairs, and dropped the Veteran into Subic Bay in approximately 1968. R.R. stated that the water surrounding the ship was filthy and littered with debris, trash, and dead animal carcasses. He further stated that it took some time to rescue the Veteran from the water, who was subsequently taken to the Ship's hospital for observation and treatment. R.R. concluded that the Veteran has experienced ongoing health related issues since such time. R.R. did not allege that the Veteran came into contact with blood and/or blood products, which has the highest prevalence of Hepatitis C infection, nor did he allege that the Veteran was exposed to high risk factors or was engaged in high risk behavior during service. See VBA Fast Letter 04-13, June 29, 2004. Accordingly, the Veteran's fall into dirty water does not raise a reasonable possibility of substantiating the claim, nor does it raise the possibility of further development which might tend to substantiate the claim. In the questionnaire pertaining to risk factors for Hepatitis C, the Veteran denied using intranasal cocaine, sharing toothbrushes or razors, having acupuncture with non-sterile needles, having a blood transfusion, having been a health care worker exposed to any contaminated blood or fluids, having hemodialysis, or having any tattoos or body piercings. While he reported that he utilized intravenous drugs, as well as engaged in high-risk sexual activity, he did not allege that he did so during service. In fact, post-service VA outpatient treatment records demonstrate a reported history of intravenous drug use and multiple sexual partners since the mid-1980's, more than a decade post-discharge from service. Thus, the questionnaire does not raise a reasonable possibility of substantiating the claim, nor does it raise the possibility of further development which might tend to substantiate the claim. The threshold for reopening a claim is low, but it is a threshold nonetheless. See, Shade, supra. New and material evidence has not been submitted, and the reopening the claim for service connection for Hepatitis C is not warranted. ORDER New and material evidence having been received, the claim for service connection for a shortness of breath disability is reopened; the appeal is granted to this extent only. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for a Hepatitis C disability is denied. REMAND The Veteran contends that his current COPD disability is due to exposure to asbestos during service as a result of his service as an able seaman for approximately one year and seven months aboard the USS Pictor (AF-54). These contentions are confirmed by the record and exposure to asbestos is conceded. The Veteran's March 1966 induction physical examination report, service treatment records, and September 1968 separation physical examination report are negative for complaints, treatment, or a diagnosis of COPD. Post-service VA outpatient treatment records dated in February 2010, approximately 42 years subsequent to discharge from service, demonstrate a diagnosis of COPD. This within the latency period for asbestos-related diseases, which varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. Given that exposure to asbestos has been conceded, as well as the current diagnosis of COPD within the latency period for asbestos-related diseases, the Veteran must be afforded a VA examination to determine the etiology of his COPD disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination in order to determine the likely etiology of his COPD disability. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated evaluations, studies, and tests deemed to be necessary must be accomplished. Based on the examination and review of the record, the examiner must answer the following question: Is it at least as likely as not (50 percent probability or more) that any currently diagnosed COPD disability had its onset during active service, or is related to any in-service disease or injury, to include exposure to asbestos? The examiner is instructed that the Veteran's exposure to asbestos is conceded. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Thereafter, readjudicate the Veteran's claim, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the Veteran, he and his representative must be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs