Citation Nr: 1319755 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 10-45 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for pulmonary tuberculosis with asthma and pneumonitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from April 1946 to March 1949. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A January 1994 Board decision denied entitlement to service connection for pulmonary tuberculosis with asthma and pneumonitis. This decision was affirmed by the United States Court of Appeals for Veterans Claims (Court) in a September 1995 Memorandum Decision. 2. Evidence received since the January 1994 Board decision is not new and material, and the Veteran's claim cannot be reopened. CONCLUSIONS OF LAW 1. The January 1994 Board decision that denied entitlement to service connection for pulmonary tuberculosis with asthma and pneumonitis is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been received since the January 1994 Board decision, and the Veteran's claim for entitlement to service connection for pulmonary tuberculosis with asthma and pneumonitis cannot be reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. New and Material Evidence Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). A recent decision of the Federal Circuit clarified that the concept of continuity of symptomatology under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to diseases identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tuberculosis is such a disease. Tuberculosis may be presumed to have been incurred in or aggravated by active military service if manifested to a degree of 10 percent within three years after termination of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). Evidence of activity on comparative study of x-ray films showing pulmonary tuberculosis within the 3-year presumptive period provided by section 3.307(a)(3) will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods. 38 C.F.R. § 3.371(a) (2012). A diagnosis of pulmonary tuberculosis will be acceptable only when provided in (1) service department records; (2) VA medical records of examination, observation or treatment; or (3) private physician records on the basis of that physician's examination, observation or treatment of the Veteran and where the diagnosis is confirmed by acceptable clinical, x-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment. 38 C.F.R. § 3.374 (2012); Tubianosa v. Derwinski, 3 Vet. App. 181, 184 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's original claim for entitlement to service connection for pulmonary tuberculosis with asthma and pneumonitis was denied in a January 1994 Board decision; the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which affirmed the Board's decision in a September 1995 Memorandum Decision. The Veteran did not appeal. In April 2008, the Veteran filed a new claim for pulmonary tuberculosis with asthma and pneumonitis. The RO denied the Veteran's request to reopen his previously denied claim. The Veteran has appealed. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2010). However, 38 U.S.C.A. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The Board denied the Veteran's prior claim because there was no credible evidence that the Veteran's pulmonary tuberculosis with asthma and pneumonitis had onset in service or was caused or aggravated by the Veteran's active military service. Thus, for evidence in this case to be considered new and material, it must show that the Veteran's pulmonary tuberculosis with asthma and pneumonitis, if any, is related to his active military service. The record at the time of the January 1994 Board decision contained a chest X-ray taken in August 1949, five months after the Veteran's final separation from service. This film has been interpreted by a VA radiologist as showing right basal pneumonitis. The rest of the lung fields appeared clear. Tuberculosis was not shown. The Veteran submitted statements from A. B. M., M.D., who recalled treating the Veteran during 1950-1951, and again in 1964. Dr. A.B.M. recollected that the Veteran was diagnosed with pulmonary tuberculosis by X-ray taken at an army hospital in 1946, and that he later treated the Veteran for pulmonary tuberculosis and asthma in 1950-1951 and 1964. Dr. A.B.M. further stated that all the relevant records, including the 1946 X-ray, were destroyed by flooding or termites prior to 1970. A private X-ray report dated March 1979 showed pulmonary tuberculosis, left, moderately advanced, active. The Veteran was examined by a VA pulmonary specialist in June 1992. The diagnoses were pulmonary tuberculosis, moderately advanced, inactive from September 25, 1989 to June 25, 1992, no evidence of humid asthma, pulmonary emphysema, and pneumonitis, resolved. The VA tuberculosis board stated that it was impossible to determine the onset of the tuberculosis between August 3, 1949 and September 25, 1989 with the evidence available. Also of record at the time were various written and oral statements from the Veteran alleging that he suffered from tuberculosis in service. Since April 2008, the Veteran has submitted copies of letters from Dr. A.B.M.. These letters are not new, as they are duplicates of previously submitted evidence. Also of record are medical records from VA and private treatment providers, including Orosi Urgent Care, Dr. S.S., and Selma Community Hospital. These records note complaints of chest pain and shortness of breath, as well as diagnoses of asthma and coronary artery disease. The Veteran reported a past history of tuberculosis, but did not specify when treatment for this disability occurred. An October 2010 x-ray shows a large calcified mass in the left lung apex from granulomatous disease or pulmonary hamartoma. Importantly, there is no evidence in these medical records showing that the Veteran has a current respiratory disability that had onset in service or that was caused or permanently aggravated by the Veteran's active military service. Thus, while the records from the Veteran's current treatment providers are new evidence, they are not material to the Veteran's claims as they do not establish a relationship between any current disability and the Veteran's service. Finally, the Board has considered the Veteran's many lay statements in which he insists that he suffered from tuberculosis in service and that he currently has symptoms such as chest pain, cough, and shortness of breath, which he attributes to his military service more than sixty years ago. However, these statements are duplicative of testimony the Veteran offered as part of his previously denied claim for pulmonary tuberculosis with asthma and pneumonitis. As such, they cannot be considered new and material evidence. In conclusion, the Board finds that the Veteran has failed to submit any new and material evidence showing that he currently suffers from a respiratory disability that had onset in service or was caused or permanently aggravated by the Veteran's active military service. Accordingly, the Veteran's previously denied claim for entitlement to service connection for pulmonary tuberculosis with asthma and pneumonitis cannot be reopened. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. The letter must also inform the Veteran of the bases of the prior denial. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in November 2008 and April 2009. These letters informed the Veteran of why his claim was previously denied, what evidence was required to reopen his claim, and what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's VA treatment records. Multiple attempts to locate the Veteran's service treatment records were made, but were unsuccessful. A formal finding of unavailability is associated with the Veteran's claims file. The Veteran submitted private medical records. As the Veteran's claim has not been reopened, the Board has no duty to afford him a VA medical examination. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER As new and material evidence has not been received, the Veteran's claim for entitlement to service connection for pulmonary tuberculosis with asthma and pneumonitis cannot be reopened; the appeal is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs