Citation Nr: 1332924 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-17 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic bronchitis and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Willie E. Spruill, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1958 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the case was subsequently returned to the RO in Reno, Nevada. Although the RO determined that new and material evidence had been submitted to reopen the Veteran's claim, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The record before the Board consists of the Veteran's paper claims file and an electronic record known as Virtual VA. FINDINGS OF FACT 1. A June 1960 Board decision denied the claim of entitlement to service connection for chronic bronchitis. 2. The evidence received since the June 1960 Board decision includes evidence that is neither cumulative nor redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 3. Bronchitis was not found on the examination for entrance onto active duty. 4. Chronic bronchitis was present in service. 5. The evidence does not clearly and unmistakably establish that the chronic bronchitis did not permanently increase in severity as a result of active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for chronic bronchitis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. Chronic bronchitis was incurred in active service. 38 U.S.C.A. §§ 1111, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim for service connection. In addition, the evidence currently of record is sufficient to substantiate his entitlement to service connection for chronic bronchitis. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). II. Claim to Reopen A. Legal Criteria 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). An exception to this rule is 38 U.S.C.A. § 5108, which 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) recently 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). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). B. Factual Background and Analysis In a June 1960 decision, the Board denied the Veteran's original claim for service connection for chronic bronchitis based on the Board's determination that the disability existed prior to service and was not aggravated by service. The Board's June 1960 decision was not appealable. The evidence of record at the time of the June 1960 Board decision included service treatment records. They show that the Veteran's lungs were found to be normal on the service entrance examination, that he was hospitalized on several occasions for bronchitis, and that a medical board determined that he was unfit for service due to chronic bronchitis which existed prior to service and was not aggravated by service. Also of record were letters dated in May 1959 and February 1960 from the Veteran's private doctor, L.C., stating that the Veteran had chronic bronchitis before entering service, but that his bronchitis became "much worse since military service." The physician noted that while the Veteran had chronic bronchitis before entering service, he was "never totally disabled and was always able to work." Doctor L.C. further noted that he treated the Veteran during a two week-furlough when he became ill and continued to treat him after he returned home from service. Dr. L.C. indicated that after the Veteran returned home from service, he was "unable to work regularly" due to his respiratory disorder. Dr. L.C. opined that the chronic bronchitis was aggravated by the Veteran's active service. Also of record was a February 1960 VA examination report showing that the Veteran was diagnosed with a history of chronic upper respiratory infection with chronic bronchitis. Statements of the Veteran were also previously of record. The evidence submitted since the June 1960 Board decision includes additional statements from the Veteran describing his pre-service symptoms, in-service symptoms and treatment, and post-service symptoms and the impact of those symptoms on his ability to work. The Veteran's current statements provide more detailed information than his prior statements. They are not merely cumulative or redundant. Moreover, they related to an unestablished fact necessary to substantiate the claim. Therefore, they are new and material, and reopening of the claim is in order. III. Reopened Claim A. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Veterans are presumed to be in sound medical condition at the time of entry into service except for defects actually noted when examined for entry into service. This presumption of soundness can be rebutted by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304; see also VAOPGCPREC 3-2003 (July 16, 2003). B. Factual Background and Analysis The report of medical history completed by the Veteran in connection with his entrance onto active duty notes that he reported a history of whooping cough. However, the report of the Veteran's October 1958 entrance examination reflects that his lungs were found to be normal. Therefore, the presumption of soundness attaches. As noted above, the Veteran was discharged from service as a result of chronic bronchitis that a medical board determined existed prior to service and was not aggravated by service. However, the private physician who treated the Veteran before, during and after service provided statements in May 1959 and February 1960 indicating that the Veteran's pre-service bronchitis was aggravated by service. In support of the opinion that the bronchitis was aggravated by service, the private physician noted that following service the Veteran was no longer capable of doing work he was able to do prior to service. In light of these statements from the Veteran's private physician, the Board cannot conclude that the evidence clearly and unmistakably establishes that the Veteran's bronchitis was not aggravated by his active service. Therefore, the presumption of soundness has not been rebutted, and the Veteran is entitled to service connection for chronic bronchitis. ORDER The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for chronic bronchitis is granted. Entitlement to service connection for chronic bronchitis is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs