Citation Nr: 1315511 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 07-16 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a respiratory disability, to include chronic obstructive pulmonary disease/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to March 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for chronic asthma. The Veteran appealed that decision, and the case was referred to the Board for appellate review. The Board notes at this juncture that the Veteran's prior claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD) and emphysema was denied by VA, most recently in a July 2004 rating decision. The current appeal stems from the Veteran's specific claim for service connection for chronic asthma, which was received by VA in December 2005. The Board remanded the Veteran's claim for entitlement to service connection for a respiratory disability, to include as due to asbestos exposure, for further evidentiary and appellate development in May 2009. That development was completed. In a January 2011 decision, the Board defined the issue on appeal as entitlement to service connection for a respiratory disability other than COPD/emphysema, to include chronic asthma and pulmonary disease due to asbestos exposure, and denied the claim. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court), and in a memorandum decision dated in July 2012, the Court vacated the Board's January 2011 decision and remanded the case to the Board for readjudication consistent with the Court's July 2012 memorandum decision. The Board notes, as discussed by the Court, that in his May 2007 Substantive Appeal, the Veteran stated that "[t]he most recent request was for asthma. To make things clear we were told I had asthma, but since then the diagnosis was changed to COPD. In my research I found that COPD and asthma were often confused." Additionally, as will be discussed more fully below, during the course of the current appeal, the Veteran has submitted new and material evidence relating to entitlement to service connection for COPD/emphysema. The Board therefore defines the current issue on appeal as whether new and material evidence has been submitted to reopen a claim for service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure. The Veteran and his spouse, accompanied by his representative, appeared at the RO to present oral testimony and evidence in support of his claim before a Decision Review Officer (DRO) in a hearing conducted in December 2006. The transcript of this hearing has been duly associated with the evidence for consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The issue of entitlement to service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure, on the merits, is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. Service connection for COPD/emphysema was last previously denied in an unappealed July 2004 rating decision, of which the Veteran was notified the following month. 2. Some of the evidence added to the record since the July 2004 determination is new and material, and it raises a reasonable possibility of substantiating the underlying claim for entitlement to service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure. CONCLUSIONS OF LAW 1. The RO's decision of July 2004, which denied service connection for COPD/emphysema, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. Some of the evidence received since the July 2004 determination is new and material, and the Veteran's claim for service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure, is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. To provide adequate notice with regard to an application to reopen a claim, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In light of the favorable determination with respect to whether new and material evidence has been submitted, and the need to remand for additional development with regard to the merits of the case, no further discussion of VA's duties to notify and assist is needed. II. New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Section 3.156(a) creates a low threshold for reopening previously denied claims. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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." Id. at 120. The phrase "raises a reasonable possibility of substantiating the claim" is one which enables rather than precludes reopening, and one which contemplates "the likely entitlement to a nexus mediacal examination if the claim is reopened." Id. at 121. In this case, the RO previously denied the Veteran's claim for service connection for COPD/emphysema in November 1994 and again in May 2004. The RO last denied the Veteran's claim for service connection for COPD/emphysema in July 2004 on the basis that the evidence continued to show that this condition was not incurred in or aggravated by military service. The Veteran was notified of such determination the following month, but he did not appeal that decision and it became final. See 38 C.F.R. §§ 20.302, 20.1103 (2012). The evidence of record at the time of the July 2004 determination consisted of the service treatment records, the reports of VA examinations, VA treatment reports, private treatment records, and statements from the Veteran. The Veteran's service treatment records confirm his service aboard several ships during his period of active duty in the United States Navy, from November 1955 to March 1980, including the USS Noa (DD-841). In November 1955, he reported a history of whooping cough. In January 1956, he reported a history of whooping cough and chronic cough. In February 1956, April 1957, and March 1958, he was treated for complaints relating to acute upper respiratory infections, which included a cold, a cough, a sore throat, and general malaise. In January 1959, he was treated for complaints of trouble breathing at night. Examination at the time revealed a few crackling rales in his left anterior chest and the impression was bronchitis. In January 1961, he was treated for acute bronchitis. In October 1961, he was treated for a cold and sore throat. In April 1963, he was treated for a sore throat and a cough that produced yellow sputum. In August 1964, he reported a history of whooping cough and chronic cough. In September and December 1964 and April and October 1966, he was treated aboard ship for a cold. During hospitalization in March 1971, the Veteran reported having a long history of a productive cough with scant yellow phlegm. In May 1974, he reported a history of having frequent colds, shortness of breath, and chronic cough. In September 1976, he reported a history of shortness of breath and pain or pressure in the chest. In February 1977, he was treated for an acute upper respiratory infection. In February 1980, he complained of having flu symptoms and a productive cough. At the time, he was noted to have a smoking habit with a consumption of two cigarette packs per day and was advised to discontinue smoking. On his March 1980 separation examination, the Veteran reported a history of sinusitis, hay fever, asthma, shortness of breath, pain or pressure in the chest, and chronic cough. Examination of his lungs and chest on separation was clinically normal, and his chest X-ray was within normal limits. Post-service medical records show a diagnosis of chronic bronchitis and suspect pulmonary emphysema associated with a very mild obstructive ventilatory defect on VA examination in May 1981. COPD secondary to tobacco abuse was assessed on March 1994 VA outpatient examination. June 1999 private pulmonary diagnostic studies noted a diagnosis of COPD and a two pack-per-day, 49-year-long cigarette smoking history, as well as a reported history of exposure to asbestos in service. On July 1999 examination by the Veteran's private physician, C.G., M.D., the Veteran presented a 10-year history of shortness of breath and a chronic cough that was described as a smoker's cough. He was noted at the time to be a one pack-per-day smoker, reduced from a high of three packs per day prior to an April 1998 myocardial infarction. He also reported having a history of exposure to asbestos aboard ships during over two decades of military service. Dr. C.G.'s impression was moderate COPD secondary to cigarette smoking. Private chest X-rays conducted in May 2000 revealed fibrotic and emphysematous changes in the Veteran's lungs. October 2002 private chest X- rays by G.H., M.D., revealed findings consistent with COPD, as well as interstitial fibrosis and scarring bilaterally. Findings obtained from private chest X-rays dated after July 2003 supported an impression of COPD. After an August 2003 examination by Dr. C.G., the impression was COPD with suggestion of an asthmatic component; when seen again in October 2003, the impression was mild to moderate COPD with an asthmatic component. The evidence received since the July 2004 RO decision includes the service personnel records, the reports of additional VA examinations, additional VA treatment records, additional private treatment reports, letters from the Veteran's private treatment providers, hearing testimony, and additional lay statements from the Veteran, his spouse and fellow servicemen. April 1998 chest X-rays from private treatment sources revealed lines of fibrosis permanently affecting the right upper lobe, and the impression was COPD. After a January 2004 private examination, Dr. C.G.'s impression was moderate COPD with an asthmatic component, and the physician noted the Veteran's longstanding history of a chronic cough dating back to his military service, which she suspected represented a chronic bronchitic manifestation of COPD. In August 2005, Dr. C.G.'s impression was severe COPD. At a December 2006 DRO hearing, the Veteran testified that he experienced frequent upper respiratory problems during his long period of military service that he believed represented a diagnosis of chronic asthma whose onset began during active duty. He testified that on separation examination from active duty in 1980, a naval corpsman advised him that he had asthma and so the Veteran reported asthma in his medical history. The report of a January 2007 VA examination, which was conducted by a nurse-practitioner, shows that the Veteran's pertinent clinical history was reviewed and he was diagnosed with COPD/emphysema and asthma, which the nurse-practitioner opined were not caused by or a result of the Veteran's military service, noting that COPD with an asthmatic component was not diagnosed until 2003, and that the most likely cause of the COPD/emphysema was the Veteran's cigarette smoking. In March 2007, D.N., M.D., the Veteran's private treating physician and a specialist in pulmonary medicine, stated that he reviewed the Veteran's medical records showing a history of asthma dating back to early in his military career, and that these records offered information that he was having intermittent respiratory difficulties and was aware of a diagnosis of asthma on examinations in the military dating back as far as 1980. The physician stated that the Veteran clearly had episodes of shortness of breath and acute bronchitis in military service in the 1950s and early 1960s, and that he was still reporting respiratory difficulties at the time of his March 1980 separation examination. With consideration of the natural history of emphysema, Dr. D.N. opined that it was more than likely that the Veteran's respiratory disease was progressing during his over 20 years in military service. The report of an October 2007 VA pulmonary examination, which was conducted by a nurse-practitioner and co-signed by an overseeing physician, shows that the Veteran's pertinent clinical history was reviewed and he was diagnosed with COPD/emphysema, which the nurse-practitioner opined were not caused by or a result of the Veteran's military service. The rationale for the opinion was that there was no documentation of diagnosis of, or treatment for COPD/emphysema in the Veteran's service treatment records, and that there was only a single episode of a self-reported history of asthma documented in these records, but unsupported by a formal diagnosis of asthma by a medical care provider during active duty. Treatment of bronchitis noted in service in January 1959 and January 1961 was only sporadic and episodic and most likely caused by his 2 - 3 pack per day cigarette smoking habit. In a November 2007 statement, a service comrade attested that he served with the Veteran aboard the USS Noa (DD- 841) during the period from 1956 to 1960, and believed that the Veteran was exposed to asbestos and asbestos particles from shipboard pipe, duct, and conduit insulation. Private lay witness statements from the Veteran's spouse and fellow servicemen indicate, in pertinent part, that the Veteran was observed by these witnesses to have frequent colds and display symptoms of frequent coughing, shortness of breath, breathing difficulties, and use of a medicated inhaler during active duty. The report of a July 2009 VA pulmonary examination, which was conducted by a nurse-practitioner and co-signed by an overseeing physician, shows that the Veteran's pertinent clinical history was reviewed and he was diagnosed with emphysema (categorized by the examiner as a obstructive respiratory disease) that was deemed secondary to tobacco abuse, which the nurse-practitioner opined was not caused by or a result of the Veteran's military service. The examiner further found no evidence of asbestosis on clinical and radiological evaluation of the Veteran. The examiner's rationale for her negative nexus opinion was that there was no clinical documentation in the Veteran's service treatment records that would substantiate a finding of service onset of chronic emphysema and asbestosis. The examiner further noted that the Veteran had a history of severe tobacco abuse, smoking at least one pack or more per day for approximately 50 years, which began prior to his entry into service. In an October 2009 opinion, a private physician, C. N. B., attested to his expertise as an independent medical expert. Dr. B.'s opinion, in pertinent part, was that the VA examiner who provided the prior negative nexus opinions regarding the Veteran's current pulmonary diagnoses and service was less qualified to present these opinions as she was only a nurse-practitioner, and in any case Dr. B.'s opinion was entitled to greater probative deference because his professional medical credentials exceeded those of the VA examiner. Dr. B. reported that he had reviewed the Veteran's pertinent clinical history and concluded the following: The Veteran's pulmonary diagnoses, according to CT scan, included fibrosis, bronchiectasis, COPD/emphysema, and nodules and soft tissue node in his right upper lung lobe. The Veteran's fibrosis, bronchiectasis, and nodules and soft tissue node in his right upper lung lobe "are all likely due to his numerous in-service lung infections as these changes take years to develop and his post service lung infections have been minimal compared to his service time infections likely significantly contributed to by his reactive airway disease (asthma). These changes would be difficult to see on routine chest x-ray, which explains his negative chest film on exit from service. (H)is new right lung node could be early asbestosis. . . as he was exposed to asbestos fibers while on ship in the navy." Dr. B. concurred with the opinion of private physician, Dr. D.N., that the Veteran likely had longstanding asthma as far back as the 1950's, during service. The obstructive component of his respiratory disease was likely present in service and developed slowly overtime and was likely due to the Veteran's smoking history "but was aggravated by Diesel Exhaust fumes from his years stationed on ships and in ports during service." In a VA medical opinion dated in May 2010, a VA physician reviewed the Veteran's pertinent clinical history, including the October 2009 private opinion of Dr. B. The VA physician considered each clinical assertion of Dr. B.'s opinion and expressly refuted Dr. B.'s opinion and his premise and rationale in detail. The VA physician found, in pertinent part, that the negative nexus opinions provided by the VA nurse-practitioner were valid, well-reasoned, and predicated on the simple fact that there was no actual clinical diagnoses of the Veteran's claimed pulmonary conditions during service or, in the case of bronchiectasis, within the one-year post-service presumptive period. The VA physician also stated that VA nurse-practitioners were trained and qualified to provide medical diagnoses and express clinical opinions regarding etiology, and that there was nothing in this regard that would disqualify the VA nurse-practitioner involved in the present case from presenting such findings. The VA physician found that the mention of asthma in the Veteran's clinical history on separation examination was a self-reported history and not a clinical diagnosis of an asthma condition in service, and to the extent that the Veteran alleged that a navy corpsman informed him that he had asthma, corpsmen were medics but were not qualified to make valid clinical diagnoses. The VA physician further found Dr. B.'s opinion that the Veteran's current pulmonary diagnoses were due to his history of upper respiratory infections to be unsupported by the evidence, as the upper respiratory infections in service were acute and not representative of onset of a chronic disease process. Further, notwithstanding Dr. B.'s speculative statement that the Veteran's new right lung node could be early asbestosis, the VA physician stated that no actual clinical findings of asbestosis were found on pulmonary examination and testing of the Veteran to date. The VA physician concluded that the Veteran's current lung diseases (i.e., COPD with asthmatic component, pulmonary nodules, mild bronchiectasis, and fibrosis) are not related to or caused by his active military service, and that the most likely cause of these conditions was the Veteran's longstanding history of tobacco use. The Veteran submitted an August 2010 opinion from his private physician, Dr. D.N., who stated that based on his review of the Veteran's clinical history, including his military medical records and duty assignments, the obstructive component of his pulmonary disease was likely present in service and likely due to his smoking history, but Dr. D.N. also added that it "was more likely than not (also) aggravated by Diesel Exhaust (and) other inhaled particulate matter from his years stationed on ships and in ports during service." Dr. D.N. cited a study from the VA War Related Illness & Injury Study Center and the American Lung Association as the basis for this opinion. A copy of this study was included in the evidence, and shows that there existed a potential for possible adverse upper respiratory health effects due to "direct and substantial breathing of (diesel) exhaust fumes" and that "very high and/or prolonged exposures to (diesel) exhaust fumes may cause respiratory symptoms such as coughing, chest tightness, and breathlessness." Upon review of the newly received evidence, which is presumed credible solely for the purpose of determining whether new and material evidence has been submitted, the Board finds that some of the evidence submitted subsequent to the July 2004 RO decision relates to a previously unestablished fact, that is, the possible existence of a nexus between the Veteran's current claimed condition and active service. Further, the additional evidence furnishes a reasonable possibility of substantiating the Veteran's claim for service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure. Thus, the Board finds that new and material evidence has been received and the claim for service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure, is reopened. ORDER New and material evidence having been submitted, the claim for service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure, is reopened, and to this extent only the appeal is granted. REMAND Reason for Remand: To comply with 38 C.F.R. § 20.1304(c). The Board notes that the RO most recently considered the claim currently on appeal, for entitlement to service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure, in a July 2010 supplemental statement of the case (SSOC). Since that time, the RO has associated additional evidence with the claims file which is pertinent to the Veteran's claim for entitlement to service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure. This evidence includes the report of a July 2012 VA respiratory conditions examination, a September 2011 opinion from the Veteran's private physician, Dr. D.N., and additional private treatment reports dated through February 2012. This evidence has not previously been considered by the RO in the adjudication of the Veteran's current claim, and the Veteran did not waive his right to have the evidence initially considered by the RO prior to the Board's readjudication of his appeal. To the contrary, in a March 2013 statement submitted along with a 90-Day Letter Response Form, the Veteran, through his representative, requested that the claim be remanded to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. Under these circumstances, the Board must remand this matter to the RO for consideration of the claim in light of the additional evidence received, in the first instance, and for issuance of a SSOC reflecting such consideration. See 38 C.F.R. § 20.1304(c) (2012); see also 38 C.F.R. § 19.37 (2012). Accordingly, the case is REMANDED for the following action: 1. After completing any additional notification and/or development deemed warranted, readjudicate the claim for service connection for a respiratory disability, to include COPD/emphysema, chronic asthma, and pulmonary disease due to asbestos exposure, on the basis of additional evidence. In so doing, consider the claim in light of all pertinent evidence of record, including the additional evidence received since the issuance of the July 2010 SSOC. 2. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs