Citation Nr: 1310358 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 07-13 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disability, to include asthma and bronchitis. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL None ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to October 1994. This matter comes before the Board of Veterans' Appeals from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied reopening a claim of entitlement to service connection for asthma and denied entitlement to nonservice-connected pension benefits. Jurisdiction of the claim currently resides with the RO in St. Louis, Missouri. In March 2008 the Veteran's representative testified at a Travel Board hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Veteran's claim to reopen his previously denied service connection claim for asthma and his claim for nonservice-connected pension benefits were remanded by the Board in January 2009 and January 2010 for additional development. Thereafter, in a March 2010 rating decision, the RO granted the Veteran's claim of entitlement to nonservice-connected pension benefits. As this represents a total grant of benefits sought on appeal, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The issues of entitlement to service connection for allergic rhinitis, sinusitis, and allergies have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. In referring the above mentioned service connection claims, the Board is aware that when a prior claim for service connection has been denied, and a current claim contains a different diagnosis (even one producing the same symptoms in the same anatomic system), a new decision on the merits is required. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996); but see Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim). The Federal Circuit has held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury when it is an independent claim based on distinct factual bases. The Federal Circuit held that the term "factual basis" is defined as the veteran's underlying disease or injury, rather than as symptoms of that disease or injury. Boggs v. Peake, 520 F.3d 1330, 1334-35 (Fed. Cir. 2008). Claims based on distinctly diagnosed diseases or injuries must be considered as separate and distinct claims. Id. at 1335. The Court of Appeals for Veterans Claims has held that the focus of the Board's consideration as to whether a claim was one to reopen should be on whether the evidence truly amounted to a new claim based upon a different diagnosed disease or injury, or whether the evidence substantiated an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199 (2009). In the Veteran's case, the previously denied claims for service connection for asthma and bronchitis were based on an asserted relationship to both inservice symptomatology of exertional dyspnea and wheezing and exposure to smoke from oil fires, chemical spills and/or other environmental hazards during service. In contrast, the claims for service connection being referred above (allergic rhinitis, sinusitis, and allergies) are based upon an asserted direct relationship to symptoms in service of a deviated septum, sinus congestion, drainage and pressure, itchy and watery eyes, and sneezing, and amount to new claims. As the RO never considered or discussed whether service connection was warranted for any upper respiratory disorder such as allergic rhinitis, sinusitis, and allergies, to include an analysis of these referred claims with the instant claim to reopen on the basis of whether new and material evidence has been submitted is not appropriate. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Clemons v. Shinseki, 23 Vet. App. 1 (2009); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). FINDINGS OF FACT 1. A November 2004 rating decision denied the Veteran's claim for entitlement to service connection for asthma; notice of the determination and his appellate rights were provided, and a timely substantive appeal was not filed. 2. Evidence received subsequent to the November 2004 rating decision is new, but is not material, as it does not raise a reasonable possibility of substantiating the claim for service connection for a respiratory disability to include asthma and bronchitis. CONCLUSIONS OF LAW 1. The November 2004 rating decision denying service connection for asthma is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a respiratory disability, to include asthma and bronchitis. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105(c) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. The case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of claims to reopen service connection claims, the appellant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. The January 2006 VCAA letter provided notice of the elements of service connection and new and material evidence, and the reasons for the prior denial of the claim. Thus, the criteria of Kent are satisfied. See Kent, 20 Vet. App. at 9. Although no letter addressing the assignment of a disability rating and/or effective date was ever sent, the Board finds that there is no prejudice in this regard, as the claim to reopen is being denied and no disability rating and effective date will be assigned. Duty to Assist The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, VA and identified private medical records, and Social Security Administration (SSA) disability benefits records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim to reopen. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii). Nonetheless, the RO provided the Veteran with an examination in March 2012. The Court has held that the Board is not required to reopen a previously denied claim solely because the appellant was afforded a VA examination in connection with his petition to reopen. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007). Furthermore, the Court has also held that, where the Board has denied reopening, the adequacy of an examination provided by the RO, despite no obligation to do so, is not a viable issue on appeal. See id., at 461. As discussed below, the Board concludes that new and material evidence has not been received on this claim. As such, no duty to assist examination provisions could have been violated. See id. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Finally, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its January 2009 and 2010 remands. Specifically, the January 2009 and January 2010 Board remands instructed the RO to obtain the Veteran's SSA records. The January 2010 remand also instructed the RO to obtain copies of all clinical reports of VA treatment dating from 2005 to the present. The Board finds that the RO has complied with the Board's instructions and that the requested records have been obtained in accordance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Analysis In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. "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). 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. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase 'raises a reasonable possibility of substantiating the claim' as "enabling rather than precluding reopening." The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. at 120. The appellant contends that he is entitled to service connection for a respiratory disability, to include asthma and bronchitis. For the reasons that follow, the Board finds that new and material evidence has not been received to reopen the Veteran's claim. Historically, the Board notes that in an August 1995 rating decision the RO denied service connection for bronchitis on the basis that no chronic condition of bronchitis was found to have been incurred in or aggravated by service. The Veteran did not appeal this decision; therefore, it became final. 38 C.F.R. § 20.1103. In a May 1996 letter the RO informed the Veteran that he failed to report for a scheduled VA examination, that there was not enough evidence of record to make a determination in the case, and that the claim was denied. The Veteran was informed of his appellate rights. He did not appeal this decision; therefore, it became final. 38 C.F.R. § 20.1103. The Veteran's claim to reopen his previously denied claim of entitlement to service connection for bronchitis was denied in a November 1998 rating decision. Notice of the rating decision was mailed to the Veteran in November 1998. The Veteran did not appeal this decision; therefore, it became final. 38 C.F.R. § 20.1103. In June 2004 the Veteran filed a claim for service connection for asthma. In a November 2004 rating decision, the RO denied entitlement to service connection for asthma because this disability was not shown to have occurred in service or been caused by service. The Veteran filed a timely notice of disagreement and the RO issued a statement of the case in March 2005. The Veteran neither submitted a timely substantive appeal nor submitted new and material evidence within the one year appeal period. The November 2004 rating decision thus became final. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 3.156(b), 20.1103. In a January 2006 letter, the Veteran was informed that his December 2005 VA Form 9 was untimely. He was notified that it was accepted as a claim to reopen his previously denied claim for service connection for asthma. No relevant service department records have been associated with the record since the November 2004 rating decision such that 38 C.F.R. § 3.156(c) would apply. Accordingly, reconsideration of the Veteran's claim under 38 C.F.R. § 3.156(c) is not warranted. The evidence of record at the time of the November 2004 rating decision denying the Veteran's claim for service connection for asthma included the Veteran's service treatment records, which reflect that in December 1990 the Veteran was seen for complaints of nasal congestion, chills and a non-productive cough. On examination there was nasal congestion and exudates. The impression was probable strep throat. An April 1991 service treatment record reflects complaints of a productive cough for a month, and that the cough is productive of yellow sputum. It was noted that the Veteran does not wheeze. On examination, the nose had slight congestion. Examination of the lungs revealed significant rhonchi bilaterally with some musical quality on the end. The assessment was bronchitis. A June 1992 ear, nose, and throat consult request reflects complaints of right nasal obstruction. It was noted that the Veteran had a deviated septum. An October 1992 periodic physical examination revealed that the lungs and chest were normal. It was noted that the Veteran had a deviated nasal septum that was mildly symptomatic. A December 1992 private emergency department record notes complaints of burning in the mid chest with shortness of breath. The diagnosis was exertional dyspnea. A December 1992 service treatment record notes that lungs were clear to auscultation. The assessment was pharyngitis/upper respiratory infection. A May 1993 service treatment record notes that the Veteran had no history of allergies and no history of asthma. He occasionally felt shortness of breath and possible wheezing with exercise. It was noted that he had been told that this could be asthma, but he mostly had increased nasal clear rhinorrhea, occasional itchy watery eyes, and sneezing. He was currently asymptomatic. The assessment was possible allergic rhinitis by history only, and no clear evaluation for reactive airway disease. A September 1993 service treatment record notes complaints of sinus pressure, congestion and swollen glands for two days. He initially had a lot of sneezing and itchy, watery eyes but then retracted that somewhat after discussing allergies. Examination revealed markedly erythematous nasal mucosa and no tenderness over the sinuses. The lungs were clear to auscultation. The assessment was viral rhinitis and possible allergy. A January 1994 service treatment record notes complaints of congestion. The lungs were clear. The assessment was upper respiratory infection. A March 1994 service treatment record notes that the Veteran was seen for nasal congestion and drainage which was green. There was no cough. Lungs were clear to auscultation. The assessment was viral rhinitis/pharyngitis. Also of record at the time of the November 2004 rating decision were May and June 1995 VA treatment records. The May 1995 VA treatment record notes complaints of a persistent cough for six days with some mucous expectorate. The diagnosis was bronchitis/viral upper respiratory infection. The June 1995 VA treatment record reflects complaints of a stinging sensation to the throat, nasal congestion, runny nose, and non-productive cough. The diagnosis was viral bronchitis. A June 2004 VA treatment record notes that the Veteran has a history of exercise-induced asthma while in service. He also complained of difficulty breathing in some situations intermittently. His symptoms are controlled with antihistamines and albuterol inhaler. Examination revealed no cough, shortness of breath, or dyspnea on exertion. Lungs were clear to auscultation. The assessment was history of exercise induced asthma and history of allergies. The evidence of record at the time of the November 2004 rating decision also included a private treatment record dated in 2004 from Baptist Memorial Hospital which notes that the Veteran was diagnosed with acute dyspnea. Also of record were the Veteran's various statements that his asthma began in service as a breathing problem, which caused coughing, near choking and wheezing. He stated that he saw Dr. Lewis, who prescribed an inhaler. His statements also reflect that he first had asthmatic problems in May 1993 and this condition was not diagnosed or treated. The Veteran stated that the asthma went undiagnosed at that time. The Veteran further argued that he was exposed to the Kuwaiti oil well plumes of smoke. He stated that he noticed exercise-induced asthma in either 1990 or 1991. He also stated that his bronchitis was as a result of his military duties cordoning off areas of chemical spills during his service in Saudi Arabia. The Veteran indicated that he was told by a Persian Gulf War Registry examination doctor to take Robitussen. The record also contains documentation showing that extensive development efforts were undertaken to find a Persian Gulf War Registry examination report, but no such examination was found. The record at the time of the November 2004 denial also included internet articles documenting oil well fire smoke exposure risk to Gulf War veterans. The evidence added to the record since the November 2004 rating decision denying the Veteran's claim for service connection for asthma includes VA treatment records, SSA disability benefits records, additional private treatment records from Baptist Memorial Hospital, duplicate service treatment records, a March 2012 VA examination report, to include pulmonary function tests, an April 2012 addendum VA opinion, a fact sheet on silicosis, the Veteran's statements, a lay statement, and internet articles describing the effects of the Kuwaiti oil fires. This newly submitted evidence is new in that it was not of record at the time of the November 2004 denial of the claim; however, none of the newly submitted evidence is material because it does not raise a reasonable possibility of substantiating the claim. Specifically, the VA treatment records continue to show ongoing treatment for asthma; they do not provide any evidence tending to show that a respiratory disability, to include asthma and bronchitis, had its onset during service or is otherwise etiologically related to service. The SSA disability benefits records contain many VA treatment records, some of which are duplicative of evidence previously of record. The remainder are not material in that they merely show ongoing treatment for asthma. They do not indicate that the Veteran has a respiratory disability that had its onset during service or that is otherwise etiologically related to service. The SSA records also include private treatment records from Baptist Memorial Hospital which were not of record at the time of the November 2004 denial. However, these treatment records merely document a diagnosis of asthma, which is evidence that was already of record at the time of the November 2004 denial of the claim. The March 2012 VA examination report reflects that the Veteran has a diagnosis of asthma. It states that he has no other respiratory diagnosis. A chest X-ray was normal. The lungs were well expanded without infiltrate, effusion, or pneumothorax. The examiner opined that the Veteran's asthma is less likely as not incurred in or caused by any inservice injury, event, or illness. The examiner reasoned that service treatment records reflect treatment for bronchitis in 1991, which resolved without residuals. The examiner further stated that pulmonary function testing on October 26, 1992 was within normal limits. The April 2012 addendum reflects the same opinion and rationale, but adds that the Veteran has a clear and specific etiology and diagnosis. He has a diagnosis of asthma. The March 2012 pulmonary function testing report reflects that the Veteran has a cough, he is not a smoker, and he had occupational exposure to silica dust. The Veteran also submitted a new article on the Kuwaiti oil fires, a fact sheet regarding silicosis, and his own written argument regarding the March 2012 VA examiner's opinion and his claim to have been exposed to silica dust. However, the Board does not find that this evidence is new and material in that it does not raise a reasonable possibility of substantiating the claim. The mere fact that the Veteran reported being exposed to silica dust to the pulmonary function testing technician is not material to the claim because he has already alleged various environmental hazards and such a theory of the claim was taken into account at the time of the November 2004 rating decision. Moreover, the pulmonary function testing technician did not provide any etiological opinion. The report merely lists the results of the pulmonary function testing and accounts for the Veteran's various reported exposures. It does not in any way link the two. The fact sheet regarding silicosis states that silicosis can begin with shortness of breath with exercise, wheezing or sputum that causes coughing. It further states that nodules seen on the chest X-ray grow larger, and some people have no symptoms. Initially, the Board notes that this general document on silicosis is not directly pertinent to the question of whether the Veteran's current respiratory disability, to include asthma and bronchitis, is etiologically related to service. It does not address the Veteran specifically nor does it state that the Veteran's disability is related to silica exposure. The internet article describing the effects of the Kuwaiti oil fires is cumulative of evidence previously submitted at the time of the November 2004 final prior decision. With regard to the Veteran's contentions about the VA examination being inadequate, this issue was addressed previously. Notably, the Court has held that the Board is not required to reopen a previously denied claim solely because the appellant was afforded a VA examination in connection with his petition to reopen. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007). Furthermore, the Court has also held that, where the Board has denied reopening, the adequacy of an examination provided by the RO, despite no obligation to do so, is not a viable issue on appeal. See id., at 461. The Board does not find that the March 2012 VA examination, the March 2012 pulmonary function testing, or the April 2012 addendum opinion are new and material. None of this evidence raises a reasonable possibility of substantiating the claim because none of this evidence suggests that the Veteran's current respiratory disability is etiologically related to any incident of service. The June 2006 letter from the Veteran's father reflects that the Veteran came home on leave in 1992 and had trouble clearing his throat. The Veteran's father indicated that the Veteran was concerned about it and was going to seek medical attention because he coughed a lot when he was running. However, this letter is not new and material evidence because it is essentially cumulative or redundant of the statements of record at the time of the November 2004 rating decision. In sum, the evidence added to the record subsequent to the last final denial is either duplicative or cumulative of records previously in the claims file, and the remainder of the evidence does not address whether any current respiratory disability, to include asthma and bronchitis, is etiologically related to active service. None of the newly submitted evidence in any way indicates the Veteran's current respiratory disability, to include asthma and bronchitis, had its onset during service, nor does the evidence suggest that a respiratory disability, to include asthma and bronchitis, is in any way related to active service. The evidence received subsequent to the last final decision in this case is presumed credible for the purpose of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, although a lay person may be competent to report the etiology of a certain disabilities, a respiratory disability, such as asthma (which is typically confirmed by pulmonary function testing) and/or bronchitis, is not the type of disorder which is susceptible to the Veteran's lay opinion concerning diagnosis or etiology in the absence of demonstration of his having had medical training. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, his lay statements do not constitute new and material evidence to warrant reopening of the instant claim for service connection. Following a review of the evidence submitted by the appellant and added to the file since the November 2004 rating decision, the Board finds that it is cumulative and redundant of the evidence of record at the time of the last prior final denial and it does not raise a reasonable possibility of substantiating the claim. The new evidence, as described above, does not indicate that the appellant has a respiratory disability, to include asthma and bronchitis, that was incurred in or is otherwise related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence not having been received, the claim for service connection for a respiratory disability, to include asthma and bronchitis, is not reopened. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs