Citation Nr: 1332304 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-30 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1973 to August 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran and her spouse testified before a Decision Review Officer (DRO) at a September 2010 hearing conducted at the RO. A transcript of the hearing is of record. The reopened issue of entitlement to service connection for a respiratory disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's claim of service connection for a respiratory disability was most recently denied by an August 1974 rating decision. The Veteran did not file an appeal; thus, the rating decision became final. 2. Evidence received since the August 1974 rating decision with respect to a respiratory disability is new and material and does raise a reasonable possibility of substantiating the Veteran's claim of service connection for a respiratory disability. CONCLUSIONS OF LAW 1. The August 1974 RO rating decision denying the Veteran's claim of entitlement to service connection for a respiratory disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d) (2012). 2. The criteria for reopening the claim of service connection for a respiratory disability have been met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an August 1974 rating decision, the RO denied the Veteran's initial claim of service connection for a respiratory disability. At the time, the RO considered service treatment records, the Veteran's claim, and an opinion from a Naval Medical Board in forming their decision. The RO determined that the Veteran had a preexisting respiratory disability and that the disability was not aggravated by service and denied service connection for a respiratory disability. The Veteran was notified of her appellate rights in the August 1974 rating decision and she did not initiate an appeal. The decision is final. 38 U.S.C.A. § 7105(a); 38 C.F.R. §§ 20.302, 20.1103. Moreover, during the one-year period following the RO decision, no new and material evidence was received requiring readjudication of the claim. See Bond v. Shinseki, 659 F.3d 1362 (2011). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a); 38 U.S.C.A. § 5108; see also Kightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing 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 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 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The newly submitted evidence includes statements by the Veteran, private treatment records and VA treatment records. The Veteran submitted a statement in support of her claim, stating that her private treating physician told her that it was physical exercise and climate change that triggered her respiratory disability. See March 2009 VA Form 21-4138. The Veteran's lay statements state that she did not have a respiratory disability prior to entering service. Additional evidence that the Veteran has submitted, either in the form of lay statements or medical records, indicates that she has been seen for her respiratory disability on a continuous basis since service. See January 2010 VA treatment records. The evidence submitted since the August 1974 rating decision is new and material evidence. The evidence submitted by the Veteran is new because it had not been previously submitted to VA for consideration. The evidence is material because it relates to an unestablished fact necessary to substantiate the underlying service connection claim. Specifically, the evidence, presumed credible, addresses whether the Veteran's service caused or aggravated her respiratory disability. Justus, 3 Vet. App. at 513 (1992). Thus, the Board finds that the private treatment records, the VA treatment records, and the Veteran's lay statements and testimony (which were not before the RO many years ago) are new and material with respect to the issue of service connection for a respiratory disability. This evidence is not cumulative of prior records because it provides evidence of in-service aggravation. The new evidence, presumed credible for the purposes of reopening, is therefore relevant and probative and raises a reasonable possibility of substantiating the Veteran's claim for service connection. Consequently, the request to reopen her previously denied claim of entitlement to service connection for a respiratory disability is granted. 38 C.F.R. § 3.156(a). ORDER The Veteran's previously denied claim for service connection for a respiratory disability is reopened and to this extent, the appeal is granted. REMAND The Veteran seeks service connection for a respiratory disability. The Board has reopened the Veteran's claim. However, additional development is required prior to a decision on the merits. The Board observes that the Veteran has not been provided a VA examination with respect to this issue. VA has a duty to provide a VA examination when the record lacks evidence to decide the claim and there is evidence of (1) a current disability, (2) an in-service event, injury or disease, and (3) some indication that the claimed disability may be associated with the established event, injury or disease. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran asserts entitlement to service connection for a respiratory disability is warranted, because it is directly related to her active service. Specifically, she contends that the initial onset of her respiratory disability began in-service and that she has suffered from such disability since her time in-service. For purposes of service connection pursuant to 38 U.S.C.A. § 1110, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In order to satisfy the second requirement listed above, the government must rebut the presumption of aggravation, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). As noted above, the Veteran's lungs and chest were normal on clinical examination on her 1973 enlistment examination. See July 1973 Report of Medical Examination. The Veteran answered "no" when asked if she had or had ever had asthma, shortness of breath or pain or pressure in her chest on the accompanying July 1973 enlistment report of medical history. See July 1973 Report of Medical History. As a result, the Veteran was found to be qualified and presumed sound for service enlistment. In July 1973, the Veteran reported to sick call with shortness of breath and pain in her chest. At sick call, she reported that she had a history of mild asthma as a child but had not had an attack for approximately 13 years. Subsequently, she was referred to the naval hospital where she was diagnosed with asthma. See July 1973 Medical Board Report. As a result, a Medical Board processing was initiated and the impression was asthma. The Board recommended that she be separated from the naval service. Id. The Veteran was informed of the Medical Board's findings but did not wish to submit a statement in rebuttal. The Medical Board concluded that the Veteran's enlistment had been in error as she had a nonacceptable defect as defined by military regulations. Id. After her separation from service, the evidence indicates that the Veteran was continuously treated for a respiratory disability and related symptoms. In a VA treatment record from January 2010, it is noted that the Veteran has had a history of persistent and severe asthma and intermittent hospitalizations. See January 2010 VA Treatment Records. Additionally, the Veteran testified at a DRO hearing in September 2010 stating that she sought treatment immediately after discharge and continues to seek treatment at a private clinic and at the VA medical center in Ann Arbor, Michigan. See September 2010 DRO Hearing at 4-5. The RO initially denied the Veteran's claim of service connection for her lung disability because it was determined that she had a preexisting disability that was not aggravated by service. However, the evidence of record does not fully support that conclusion as the Veteran was found qualified for service and presumed sound upon entrance into the military. The Board finds clear and unmistakable evidence that the Veteran's respiratory disability clearly and unmistakably pre-existed service. The Veteran's own statements in service of childhood asthma support this finding and totally undermine any other statements to the contrary. The evidence is unambiguous. Given the scope of the evidence, the Board finds that a VA examination is necessary to provide an opinion on whether there was clear and unmistakable evidence that the Veteran's respiratory disability was not aggravated by such service or, if this cannot be shown, whether any permanent worsening would have been due to the natural progression of the disease. See Wagner, 370 F. 3d at 1093. Regarding any additional evidence, it appears, to the Board, that it has all pertinent records that are available. However, the Veteran may submit any additional records she feels are pertinent, particulars records from the 1970s, 1980s, or 1990s, if she can locate them. Any additional records should be submitted immediately. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any respiratory condition. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All appropriate tests and studies are to be conducted, and any consultations deemed necessary are to be accomplished. After reviewing the record and examining the Veteran, the examiner should provide a current diagnosis of any respiratory disability. Then the examiner should provide an opinion regarding the following: Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the asthma did not permanently increase during service from July 1973 to August 1973, or, if this cannot be shown, whether any permanent worsening would have been due to the natural progression of the disease. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note, what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other developments deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, provide her a supplemental statement of the case and allow her an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs