Citation Nr: 1328880 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 11-22 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received to reopen service connection for chronic obstructive pulmonary disease (COPD) and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1955 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) "Tiger Team," located at the Regional Office (RO) in Cleveland, Ohio. Due to the Veteran's place of residence, the RO in Oakland, California, assumed jurisdiction. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. Due to the Veteran's advanced age, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In the November 1998 rating decision, the RO determined that new and material evidence sufficient to reopen the service connection claim for COPD had not been received, on the basis that the evidence submitted still did not show that the Veteran had a chronic lung disease in service. 2. The Veteran did not appeal the November 1998 RO rating decision after being notified of his appellate rights, and no additional evidence was received within one year of the decision. 3. Evidence received since the November 1998 rating decision relates to a previously unestablished fact of in-service injury or disease necessary to substantiate the service connection claim for COPD. 4. The Veteran was exposed to aircraft fuel and exhaust during active service. 5. Resolving reasonable doubt in the Veteran's favor, the currently diagnosed COPD is causally related to exposure to aviation fuel during service. CONCLUSIONS OF LAW 1. The November 1998 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen service connection for COPD. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2013). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection of COPD are met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). For reasons explained below, the Board finds the Veteran's service connection claim for COPD to be reopened by way of the submission of new and material evidence. The Board is also granting the Veteran's service connection claim for COPD on the merits for reasons discussed below. Given the favorable outcome of the appeal, which is a full grant of benefits sought, the Veteran's claim has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). New and Material Evidence Legal Criteria The issue of whether new and material evidence has been received sufficient to reopen service connection for COPD was previously denied in a November 1998 rating decision, and the Veteran did not initiate an appeal of the decision. The current issue is grounded upon the same factual bases as the previously denied claim, and, as a general matter, it is appropriate for the Board to consider the current claim as a request to reopen the previously denied claim for COPD. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). For reasons explained below, the Board finds that the provisions of 38 C.F.R. § 3.156(b) and (c) are inapplicable to the claim; therefore, the November 1998 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The U.S. Court of Appeals for Veterans Claims (Court) 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 presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' . . . or whether it is evidence tending to substantiate an element of a previously adjudicated matter." Velez v. Shinseki, 23 Vet. App. 199 (2009). In Velez, the Court held that, when a veteran filed a claim for a nervous condition, this was not a new claim based on a distinctly diagnosed condition from a previously adjudicated claim for a stress disorder. The Court stated that, because the claims involved overlapping symptoms, the factual basis for the veteran's claim was the same and thus distinguishable from the scenarios presented in the cases of Boggs v. Peake, 520 F.3d 1330 (Fed.Cir.2008) and Ephraim v. Brown, 82 F.3d 399 (Fed.Cir.1996). Velez, 23 Vet. App. at 203 (noting that in Boggs and Ephraim the Federal Circuit held that claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims). When the Veteran filed the original claim for service connection for respiratory problems in April 1992, he was then diagnosed with COPD, as well as other respiratory disabilities. When the Veteran filed the current claim in March 2008, he specifically referenced the prior 1992 denial, noted that recent tests showed that he had "neither asthma nor emphysema, but COPD," and asserted that "[he had] learned" that the disability was related to asbestos exposure during service. In consideration of the foregoing, the Board finds that the Veteran's current claim is a request to reopen a previously denied claim, not a new claim. In Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108, 7104 establishes a legal duty for the Board to consider the issue of new and material evidence regardless of the RO's determination as to that issue. The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction (AOJ) by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. 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 evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). New and Material Evidence Analysis In a prior September 1992 rating decision, the RO denied service connection for a respiratory disease, noting that the Veteran was diagnosed with COPD, on the basis that no chronic respiratory disability was shown during service. Later, in the November 1998 rating decision, the RO determined that new and material evidence had not been received sufficient to reopen the service connection claim for COPD on the basis that the Veteran had not provided or identified any new evidence to show that a chronic lung disease was present in service. The RO considered the Veteran's service treatment records, as well as VA and private treatment records dated from 1991 to 1998, when rendering the decision. After reviewing the evidence received since the November 1998 rating decision, the Board finds that it qualifies as new and material evidence and, therefore, is sufficient to reopen service connection for COPD. Specifically, a July 2007 letter from a private physician and the August 2013 VHA medical opinion provide a link between the Veteran's currently diagnosed COPD and active service, and also referenced various in-service . In the July 2007 letter, the private physician stated that he had treated the Veteran for approximately ten years, noted the Veteran's service in the naval shipyard and the occupational risk of asbestos exposure for shipyard workers, and opined that the Veteran's respiratory disability was in whole, or in part, due to asbestos exposure during service. In the August 2013 VHA medical opinion, the reviewing VA pulmonologist alternatively opined that it was as likely as not that the Veteran's COPD may be related to exposure to aviation fuel during service. Both the private physician who wrote the July 2007 letter and the reviewing VA pulmonologist who provided the August 2013 VHA medical opinion are competent to provide medical opinions regarding the cause of the Veteran's COPD. Furthermore, their statements (i.e., medical opinions) are presumed credible for the purpose of reopening the claim. At the time of the November 1998 denial, the medical evidence of record showed that the Veteran was then diagnosed with COPD; however, the evidence did not show that the Veteran had a chronic respiratory disability during service, and there was no competent evidence of a link between the Veteran's COPD and service. Because the July 2007 letter from the private physician and the August 2013 VHA medical opinion are not duplicative or cumulative of evidence previously considered by the RO when it denied the claim, and they relate to a previously unestablished fact necessary to substantiate the claim (i.e., they provide competent evidence of a link between the Veteran's currently diagnosed COPD and service), and additional evidence regarding in-service exposures to asbestos and aviation fuel, the medical opinions qualify as new and material evidence sufficient to reopen the claim. In summary, the Board finds that the evidence received since the November 1998 rating decision qualifies as new and material evidence sufficient to reopen the previously denied claim. The newly received evidence provides competent evidence of a link between the Veteran's COPD and service and additional evidence of in-service exposures. This evidence was not previously considered and relates to a previously unestablished fact necessary to substantiate the claim. Accordingly, as the Board has determined that new and material evidence has been received to reopen service connection for COPD. In determining that new and material evidence has been received sufficient to reopen service connection for COPD, the Board notes that there was no evidence received within the one-year appeal period following the November 1998 rating decision, and no pertinent service records have been added to the record since the November 1998 rating decision; therefore, the new and material evidence provisions of 38 C.F.R. § 3.156(b) and (c) are inapplicable in this case. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's currently diagnosed COPD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection Analysis The Veteran contends that he had environmental exposure to aircraft fuel and exhaust and to photographic development chemicals during his naval service. See June 1992 VA Form 21-4138. He also contends that he had asbestos exposure while serving aboard the U.S.S. Forrestal, and began to smoke tobacco during service. See July 2011 VA Form 9. The Veteran asserts that the environmental exposure, chemical exposure, asbestos exposure, and/or tobacco use caused his currently diagnosed COPD. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran's currently diagnosed COPD, to include symptoms related thereto, had its onset during service. The service treatment records, which are complete, are absent of any complaints, findings, or treatment for COPD. Also, at the July 1958 service separation examination, the Veteran's lungs and chest were clinically evaluated as normal, and the chest x-ray was negative. The lay and medical evidence of record, however, does show a relevant injury to the respiratory system during active service. On the June 1992 VA Form 21-4138, the Veteran wrote that he worked on the flight line as a plane captain and his responsibilities involved fueling and maintaining the aircraft used for basic pilot training. He also stated that he refueled the aircraft after each flight and inhaled large amounts of gas fumes. The Veteran is competent to report having frequently inhaled gas fumes during active service. Furthermore, the Administrative Remarks included in the Veteran's service personnel records show that he was repeatedly ordered to duty in a flying status involving the operational or training flights as a crew member from May 1956 to April 1957; therefore, the Veteran's account of having to refuel aircraft and frequently inhaling gas fumes while performing his duties as a crewman is consistent with the circumstances and conditions of his service and is, therefore, credible. For these reasons, the Board finds that the Veteran frequently inhaled gas fumes during active service. Turning now to the question of whether the Veteran's currently diagnosed COPD is causally or etiologically related to exposure to active service, the Board initially notes that the diagnosis of COPD was first made in September 1991, 33 years after service separation. At that time, the Veteran told a treating medical provider that he had begun to experience severe respiratory problems at the age of 35. Thus, according to the Veteran's 1991 report regarding the onset of respiratory symptomatology, the respiratory problems began in 1972, fourteen years after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). After a review of all the evidence, to include both favorable and unfavorable medical opinion evidence of record addressing the likely etiology of the Veteran's COPD, the Board finds that the evidence is in equipoise on the question of whether the Veteran's exposure to gas fumes during active service caused COPD. The August 2013 VHA medical opinion obtained by the Board in connection with the current appeal supports finding that the Veteran's exposure to the fumes of aviation fuel during active service caused his COPD. After reviewing the record and reviewing the relevant medical literature, the reviewing VA pulmonologist opined that it was as likely as not that the Veteran's COPD may be related to diesel exhaust. In support of the medical opinion, the reviewing pulmonologist cited to 2012 medical articles, which discussed the association between diesel exhaust and COPD/reactive airways disease, updated information on occupational chronic obstructive pulmonary disease, and bronchial asthma and COPD due to irritants in the workplace. On the other hand, the September 2009 VA medical opinion weighs against finding that the Veteran's COPD was caused by exposure to aviation fuel and fumes during service. When the Veteran underwent a VA respiratory examination in September 2009, the VA medical examiner opined that the likely cause of the Veteran's COPD was his extensive smoking history, which included at least a 27 pack per year history with a maximum of four to five packs of cigarettes per day for one year. In fact, the Veteran has argued at various times during the course of the appeal that his COPD was caused by tobacco use that began during active service. For claims filed after June 9, 1998, such as this claim, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. §§ 1103(a), 1131 (2013); therefore, this assertion is against the claim for service connection as it suggests a nonservice-related etiology for COPD. In weighing the medical opinions, the Board notes that both the August 2013 reviewing VA pulmonologist and the September 2009 VA medical examiner have the requisite medical training and credentials to provide a competent medical opinion on the likely cause of the Veteran's COPD. Also, the August 2013 reviewing VA pulmonologist and the September 2009 VA medical examiner had adequate data on which to base their medical opinions and provided sufficient rationale to support their medical opinions. Although the reviewing VA pulmonologist used the term "may be" when providing the medical opinion relating the Veteran's exposure to aviation fuel to the development of COPD, the Board finds the medical opinion to be adequate for the purpose of establishing a nexus relationship between the Veteran's COPD and exposure to aviation fumes during service because the reviewing VA pulmonologist listed several medical articles that supported the otherwise stated medical opinion that it was as likely as not that COPD was caused by the inhalation of gas fumes during service. For these reasons, the Board finds that the evidence on the question of whether the Veteran's currently diagnosed COPD is causally related to exposure to gas fumes during service is in equipoise. Resolving reasonable doubt in favor of the Veteran, the Board finds that the currently diagnosed COPD is related to active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Although the Veteran has advanced other theories for entitlement to service connection for COPD such as exposure to chemicals used to develop film and asbestos exposure, and the evidence related to such contentions was not specifically discussed herein, the Board finds that there is no prejudice to the Veteran in light of the full grant of service-connected compensation benefits for COPD based on exposure to aviation fuel fumes during service. ORDER As new and material evidence has been received, the appeal to reopen service connection for COPD is granted. Service connection for COPD is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs