Citation Nr: 1322437 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-38 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim of service connection for tinnitus. 3. Whether new and material evidence has been received to reopen the claim of service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), asbestosis, asthma, allergic rhinitis and bronchitis. 4. Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from August 1972 until January 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2008 rating decision of the RO. The Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file and found additional VA outpatient treatment records concerning the lung disability that are not in the physical claims file and that apparently have not been considered by the Agency of Original Jurisdiction (AOJ). In this case, the Board may consider this additional evidence without having the Veteran waive this right since this evidence is not pertinent to the limited question of whether new and material evidence has been submitted which is being decided in this decision. See 38 C.F.R. § 20.1304(c)(noting that evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues). As will be discussed in detail below, the presence of a current lung disability was already of record and is therefore not pertinent to the question of whether new and material evidence has been submitted. Furthermore, the Board is reopening the issue and remanding the underlying claim for service connection and accordingly, upon remand, the AOJ will have the opportunity to consider this evidence. See 38 C.F.R. § 20.1304; Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The reopened issue of entitlement to service connection for a lung disability is being remanded and is 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. The claims for service connection for hearing loss, tinnitus and a lung disability were last denied in a December 2002 rating decision. 2. The evidence received since the December 2002 rating decision is new in that it is neither cumulative nor repetitive of facts previously considered and raises a reasonable possibility of substantiating the Veteran's claim for a lung disability. 3. The evidence received since the December 2002 rating decision does not relate to an unestablished fact necessary to substantiate the claim for hearing loss and does not raise a reasonable possibility of substantiating the claim. 4. The evidence received since the December 2002 rating decision does not relate to an unestablished fact necessary to substantiate the claim for tinnitus and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a lung disability. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1103 (2012). 2. Evidence received since the final December 2002 determination wherein the RO denied the Veteran's claim of entitlement to service connection for hearing loss is not new and material, and the Veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1103 (2012). 3. Evidence received since the final December 2002 determination wherein the RO denied the Veteran's claim of entitlement to service connection for tinnitus is not new and material, and the Veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Requirements 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); 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 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 U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Specific to requests to reopen, the claimant must be notified of the criteria required to reopen the claim and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the present case, a letter sent to the Veteran in January 2008 fully addressed all notice elements required by Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Dingess v. Nicholson, 19 Vet. App. 473 (2006). The January 2008 letter also advised the Veteran that his claims were previously denied, defined "new and material evidence" and explained the reasons why the claims were previously denied in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006). VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the record includes the Veteran's service treatment records, VA outpatient treatment records, and lay statements. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. 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). Law and Analysis The Veteran seeks service connection for hearing loss, tinnitus and a lung condition. Claims for service connection for hearing loss and tinnitus were previously considered and denied by the RO in an August 2001 rating decision. The Veteran did not appeal the decision and it became final. 38 C.F.R. § 20.1103. Claims for hearing loss, tinnitus and a lung condition were considered and denied by the RO in a December 2002 rating decision. The Veteran did not appeal the decision and it became final. 38 C.F.R. § 20.1103. A review of the claims file reflects that the Veteran did not submit any additional evidence within one year of either the August 2001 rating decision or the December 2002 rating decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). As such, the Veteran's claims may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C.A. § 7105. As general rule, a claim shall 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, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to assist. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the December 2002 rating decision that denied service connection for hearing loss, tinnitus and a lung disability, the evidence of record consisted of service treatment records, VA outpatient treatment records, reports of VA examinations and lay statements. Subsequent to the December 2002 rating decision, additional VA outpatient treatment records and lay statements were associated with the claims file. Lung Disability Concerning the lung disability, the evidence submitted subsequent to the December 2002 rating decision is new, in that it was not previously of record. The newly submitted evidence is also material. The claim for a lung disability was denied by the December 2002 rating decision as there was no evidence of a lung disability during service and no evidence of a nexus to any event or incident during service. The evidence received subsequent to the December 2002 rating decision includes a March 2009 statement of the Veteran in which he provided further details concerning his exposure to asbestos and explained that his symptoms began during service when he was treated for coughing and had progressively worsened throughout his life. As noted above, new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the present case, the Veteran has presented evidence that speaks directly to an element which was not of record, mainly a possible nexus to service as he has described symptoms continuing since service. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"); See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006)(noting that the third element to consider when assessing the need for a medical examination has a low threshold that could be met by credible evidence of continuity of symptomatology); Shade, 24 Vet. App. at 118 (explaining VA should ask whether the evidence could reasonably substantiate the claim by triggering VA's duty to assist). Id. at 118. Presumed credible, the additional evidence received since the December 2002 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection for a lung disability is reopened. Hearing Loss and Tinnitus Concerning the hearing loss and tinnitus, the added submitted evidence is not new and material. The claims for hearing loss and tinnitus were last denied in December 2002 as no new and material evidence had been submitted to reopen the claims. The prior August 2001 rating decision indicated the claim for hearing loss was denied as there was no evidence of hearing loss during service and no evidence of a nexus. The claim for tinnitus was denied in August 2001 as there was no evidence of the condition during service and no evidence of a nexus. The evidence received subsequent to the December 2002 rating decision includes lay statements of the Veteran explaining he was exposed to noise from deck grinders aboard the U.S.S. Richmonk K. Turner during his service in the Navy. The evidence also includes VA outpatient treatment records documenting treatment for hearing loss. To the extent to which the submitted evidence demonstrates treatment of a current disability, the claim was not previously denied on the basis of a lack of a current disability. Evidence that confirms a previously established fact is cumulative. The submitted treatment records do not document a hearing loss or tinnitus during service or a nexus to service. In other words, the presence of a current disability was previously of record. Alone and in connection with evidence previously assembled, this evidence reflecting treatment for the hearing loss and tinnitus is duplicative rather than new and material. 38 C.F.R. § 3.156(a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). To the extent to which the Veteran submitted lay evidence of noise exposure, and specifically exposure to noise from deck grinders during service, this evidence is cumulative and redundant. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992) (explaining testimony concerning how the claimant's ankle was injured was not new as the Veteran made that assertion many years earlier). Specifically, the Veteran had argued as early as September 2000 that he was exposed to loud noise from deck grinders and even argued he sustained a hearing loss prior to discharge. In that statement he also described a near-constant ringing in the ears. Similarly, in January 2001, the Veteran described exposure to loud noises of deck grinders and hammer drills while working as an interior communications electrician during service. In this statement he also reported near-constant ringing of the ears and explained he had a hearing loss that was documented in the service records. Accordingly, the Veteran's February 2009 statement in his notice of disagreement that he was exposed to noise from deck grinders is duplicative of his prior arguments and does not constitute material evidence. See also Paller v. Principi, 3 Vet. App. 535, 538 (1992) ("[t]here will be a point reached, and probably fairly quickly . . . [that] the evidence being proffered has been fairly considered and that further rearticulation of already corroborated evidence is, indeed, cumulative."). Thus, the additional evidence received since the December 2002 rating decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claims for service connection for hearing loss and tinnitus are not reopened. ORDER New and material evidence having been received, the claim for service connection for a lung disability is reopened. To this extent and to this extent only, the appeal is granted. New and material evidence has not been submitted and the application to reopen the claim of entitlement to service connection for bilateral hearing loss is denied. New and material evidence has not been submitted and the application to reopen the claim of entitlement to service connection for tinnitus is denied. REMAND Having reopened the claim for service connection for a lung disability, the Board finds additional development is necessary prior to adjudicating the merits of the claims. Specifically, the Board is of the opinion that a VA examination is necessary. In determining whether the duty to assist requires that a VA medical examination or medical opinion be obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In the present case, the Veteran has several different lung diagnoses, including asthma, allergic rhinitis, chronic obstructive pulmonary disease and bronchitis. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009)(holding that a claimant's identification of the benefit sought does not require any technical precision); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service treatment records include a June 1978 record that noted complaints of cough. A chest x-ray reflected beginning infiltrative process in the right lower lobe and the assessment was pneumonitis, right lower lobe. He was treated for pneumonitis and placed on light duty for 1 week. Another June 1978 record noted the Veteran had resolving pneumonia. Additionally, the Veteran has provided lay evidence that he was exposed to asbestos during service. As noted above, in March 2009 the Veteran reported that his symptoms began while he was in service and progressively worsened since that time. A July 2008 VA outpatient treatment record indicated that the Veteran was previously seen for question of whether his dyspnea was related to asthma, bronchitis, or interstitial lung disease and concluded that it was too early to develop asbestos related lung disease related to his exposure and the physician's suspicion was that the Veteran had chronic bronchitis with asthma rather than interstitial lung disease. No opinion as to the etiology of the asthma or bronchitis was provided. During a September 2012 VA outpatient treatment visit, the physician explained that although the Veteran believed his condition was related to asbestos exposure, he had no evidence of pleural thickening or interstitial lung disease that suggests any significant clinical ramifications of asbestos or evidence of asbestosis. The physician did not provide an opinion as to the etiology of the asthma or allergic rhinitis. As such, without further clarification, the Board is without medical expertise to determine whether any of the currently diagnosed lung disabilities, including asthma, COPD, allergic rhinitis or bronchitis, are related to the symptoms during service or the claimed asbestos exposure. Colvin v. Derwinski, 1 Vet. App. 171 (1991). As the record contains evidence that the Veteran has a current lung disability, evidence of an event in service and evidence suggesting continuity of the symptoms since service, the Board is of the opinion that the Veteran has met the criteria of 38 C.F.R. § 3.159 and a VA examination should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for purposes of determining the current nature, extent and etiology of any currently diagnosed lung disability. All testing deemed necessary must be conducted and results reported in detail. The examiner should provide opinions as to the following: whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed disability, including, but not limited to asthma, COPD, allergic rhinitis, and bronchitis, was incurred in or aggravated by military service, including the documented pneumonitis in 1968 and the Veteran's reported exposure to asbestos. A thorough rationale should be provided for all opinions expressed. 2. The RO/AMC shall then take such additional development action as it deems proper with respect to the claim. When the development requested has been completed, the case should again be reviewed on the basis of the additional evidence and readjudicated. 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 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. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs