Citation Nr: 1335097 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-25 866 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for nicotine dependence. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pulmonary hypertension. 4. Entitlement to service connection for pulmonary hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from September 1958 to May 1962. Effective May 15, 2006, the Veteran has a total disability evaluation based on individual unemployability (TDIU). This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision by the RO. The Board presently reopens and remands the claim of service connection for pulmonary hypertension to the VA Appeals Management Center (AMC) in Washington, D.C. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. In November 2005, the Board denied the Veteran's petition to reopen his claim of entitlement to service connection for a respiratory disorder, including pulmonary hypertension and COPD, and for nicotine dependence. 2. With respect to the issues of entitlement to service connection for COPD and nicotine dependence, the evidence associated with the record since the Board's November 2005 decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating either claim. 3. With respect to the issue of entitlement to service connection for pulmonary hypertension, the evidence associated with the record since the Board's November 2005 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The Board's November 2005 decision, which denied the Veteran's petition to reopen claims of entitlement to service connection for a respiratory disorder, including pulmonary hypertension and COPD, and for nicotine dependence, is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. §§ 20.1100 (2005). 2. New and material evidence has not been received to reopen the Veteran's claim of entitlement to service connection for COPD or nicotine dependence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for pulmonary hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to service connection for COPD, pulmonary hypertension, and nicotine dependence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that VA has met that duty. As noted the Veteran's petition to reopen previously denied claims of service connection for COPD, pulmonary hypertension, and nicotine dependence was considered and denied by the Board in November 2005. There was no further revision action and the denial became final under the law and regulations then in effect. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.1100 (2005). In August 2007, the Veteran filed an application to reopen his claim of entitlement to service connection for COPD, and in April 2010, the Veteran filed an application to reopen his claims of entitlement to service connection for pulmonary hypertension and nicotine dependence. Following the receipt of those applications, the VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection and the general criteria for rating service-connected disabilities and for assigning effective dates, should service connection be granted. In addition, VA informed the Veteran of the bases for the prior denials and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his petitions to reopen his claims. Since the Veteran first applied for service-connected benefits, VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting his treatment at the Allergy Associates of the Palm Beaches, P.A. from February 1996 through December 1997; records reflecting his treatment in November and December 1997 at the Palm Beach Gardens Medical Center: an October 1998 report from M. R. S., M.D.; an October 1998 report from T. O. T., D.O.; an April 1999 report from C. C. B., M.D.; reports from W. L. P., M.D., dated in August 2000, August 2004, and May and December 2010; statements, dated in November 2000 and October 2010 from a longtime friend, E. A. K.; reports of VA psychiatric and respiratory examinations, performed in August 2002; reports of psychiatric evaluations, performed in May 2003 and February 2004, and an April 2007 report by or from J. C. G., M.D.; a June 2003 report from M. G. A., M.D.; an October 2003 report from W. S., M.D.; a November 2004 report from C. H. L., M.D.; a November 2006 chest X-ray report from the Stewart Imaging Center; the transcript of a July 2005 hearing before a Veterans Law Judge from the Board; the report of a May 2007 VA psychiatric examination; and a July 2007 report from C. N. B., M.D.. During the course of the appeal, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. To date, however, he has declined to accept that offer. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support any of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to determine whether or not new and material evidence has been received to reopen claims of entitlement to service connection for COPD, pulmonary hypertension, and nicotine dependence. Analysis The Board is required to apply the relevant law including statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). As he has previously, the Veteran argues that COPD, pulmonary hypertension, and nicotine dependence are the result of his smoking which started in service - a contention that has been previously considered and rejected either as a factual or legal determination. However, the Veteran has also submitted additional and non-cumulative evidence suggesting that pulmonary hypertension has been caused at least in part by his inability to exercise. Presumed credible, this evidence triggers VA duty to assist and that aspect of his current petition will be granted. Accordingly, the appeal will be allowed in part and denied in part. Service connection is warranted for a particular disability, when there is competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). When the Board last denied the Veteran's claims of entitlement to service connection for COPD, pulmonary hypertension, and nicotine dependence in November 2005, the evidence consisted of the Veteran's service treatment and personnel records; a March 1992 report from P. G., M.D.; records reflecting his treatment at the Allergy Associates of the Palm Beaches, P.A. from February 1996 through December 1997; records reflecting his treatment in November and December 1997 at the Palm Beach Gardens Medical Center; an October 1998 report from M. R. S., M.D.; an October 1998 report from T. O. T., D.O.; an April 1999 report from C. C. B., M.D.; reports from W. L. P., M.D., dated in August 2000 and August 2004; a November 2000 statement from a longtime friend, E. A. K.; reports of VA psychiatric and respiratory examinations, performed in August 2002; reports of psychiatric evaluations, performed in May 2003 and February 2004 by J. C. G., M.D.; a June 2003 report from M. G. A., M.D.; an October 2003 report from W. S., M.D.; and the transcript of a July 2005 hearing before a Veterans Law Judge from the Board. Pulmonary hypertension was first reported in December 1997, during the Veteran's treatment at the Palm Beach Gardens Medical Center and his COPD or obstructive lung disease were first reported in October 1998 by T. R. T., D.O. Nicotine dependence due to a long history of smoking which began in service was confirmed by multiple practitioners, such as in May 2003 by J. C. G., M.D. Multiple practitioners found the Veteran's COPD, pulmonary hypertension, and nicotine dependence to be the result of a long history of smoking which began in service. However, for all claims, such as the Veteran's, which were filed on or after June 10, 1998, the applicable VA law and regulations prohibited service connection for disabilities which were the result of smoking in service. 38 U.S.C.A. § 1103 (West 1991 and Supp. 1998). Thus, there was no legal basis for service connection for COPD, pulmonary hypertension, or nicotine dependence. The law was dispositive of the issue; and, therefore, service connection for those disorders due to tobacco use in service was denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In its denial, the Board considered and denied entitlement to service connection for each of those disorders on a direct basis. The Board noted that the service medical records were negative for each of those disorders and that the preponderance of the evidence was against a finding of a nexus between any of those disorders and service. Accordingly, service connection was also denied on a direct basis. As noted above, that decision became final. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. The 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 VA shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to VA decisionmakers. 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. If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of his claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Relevant evidence added to the record since the Board's November 2005 decision consists of a November 2004 report from C. H. L., M.D.; a report of chest X-rays, performed at the Stewart Imaging Center in November 2006; an April 2007 report from J. C. G., M.D.; the report of a May 2007 VA psychiatric examination; a July 2007 report from C. N. B., M.D.; reports from W. L. P., II, M.D., dated in May and December 2010; and an October 2010 statement from longtime friend, E. A. K. Such evidence is new in the sense that it has not previously been before the VA. With respect to service connection for COPD and nicotine dependence, however, the additional evidence is not material as it does not tend to substantiate the claim beyond the developed facts in the November 2005 denial. The VA law and regulations prohibiting service connection for disorders resulting from smoking which started in service remain in effect. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2013). Therefore, the additional evidence is of no force or effect in substantiating those claims for service connection on that basis. Even when considered with the evidence previously of record, the additional evidence does not raise a reasonable possibility of direct service connection for COPD or nicotine dependence. The additional evidence is negative for any findings that either of those disorders was first manifested in service independent of the Veteran's reported smoking. The additional evidence is therefore either cumulative or redundant of the evidence of record in November 2005. Because it is not new and material, the additional evidence does not meet the criteria to reopen the claims of entitlement to service connection for COPD or nicotine dependence. To that extent, the appeal is denied. In arriving at this decision, the Board has considered the Veteran's argument that the VA law and regulations prohibiting service connection for disorders due to smoking in service are not applicable to his claim. He contends that he filed his original claim for service connection for a lung disorder prior to the June 10, 1998, the effective date of the law and regulations. Therefore, he maintains that service connection should still be available under the law and regulations in effect prior to that date. The Veteran is correct that on January 30. 1998, VA received his initial claim (VA Form 21-526) of entitlement to service connection for pulmonary hypertension and a pulmonary condition due to smoking. However, service connection for those disorders was denied by the RO in August and November 1998. Those decisions were affirmed by the Board in July 2000. In so doing, the Board considered the Veteran's claim under the VA law and regulations in effect prior to June 10, 1998. There was no further appellate action and the Board's decision became final under the law and regulations then in effect. 38 U.S.C.A. § 7104(a) (West 1991); 38 C.F.R. § 20.1100 (2000). The facts did not then support the claim, and the law now bars a grant. The January 30, 1998 claim was resolved under the VA law and regulations. With respect to the issue of pulmonary hypertension, the additional evidence is material. The July 2007 statement from C. N. B., M.D. indicates that the Veteran has hypertension due to his inability to exercise as a result of his multiple service-connected orthopedic disorders. Although Dr. B. does not specify "pulmonary hypertension," his statement suggests the possibility of service connection on a secondary basis. 38 C.F.R. § 3.310. That is particularly true, given the relatively low threshold necessary to reopen a claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010) ((the language of 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" is consistent with "enabling rather than precluding reopening")). Therefore, with respect to the issue of entitlement to service connection for pulmonary hypertension, the additional evidence is new and material for the purpose of reopening the claim. To that extent, the appeal is granted. ORDER New and material evidence not having been received, the application is denied to reopen claim of entitlement to service connection for COPD. New and material evidence not having been received, the application is denied to reopen the claim of entitlement to service connection for nicotine dependence. New and material evidence having been submitted the application is granted to reopen claim of entitlement to service connection for pulmonary hypertension. REMAND The reopened claim of entitlement to service connection for pulmonary hypertension requires further development. Accordingly, the case is remanded for the following actions: 1. Notify the Veteran of VA's duties to notify and assist him in the development of his claim of entitlement to service connection for pulmonary hypertension on a SECONDARY BASIS. 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. § 3.159 (2013). 2. When the actions in part 1 have been completed, schedule the Veteran for a respiratory examination to determine the nature and etiology of any pulmonary hypertension found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If pulmonary hypertension is diagnosed, the examiner must identify and explain the elements supporting the diagnosis. The examiner must also render an opinion as to whether pulmonary hypertension is PROXIMATELY DUE TO OR HAS BEEN AGGRAVATED BY any of the Veteran's service-connected disabilities (i.e., major depressive disorder; bilateral hip replacement; right shoulder impingement syndrome; degenerative disc disease of the cervical spine; a low back disorder, diagnosed as intervertebral disc syndrome, status post laminectomy; the residuals of a head injury, including headaches; degenerative joint disease of the right knee; left foot metatarsal phalangeal injuries; traumatic arthritis of the right 4th and 5th fingers; and radiculopathy of the lower extremities. Aggravation is shown when any increase in the severity of a nonservice-connected disease or injury (e.g., pulmonary hypertension, if present) that is proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonservice-connected disease. Temporary or intermittent flare-ups of a nonservice-connected disease or injury are not sufficient to be considered aggravation, unless the underlying condition, as contrasted to symptoms, is worsened. The examiner must state HOW AND WHY he or she reached the opinion. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2013). If the Veteran fails to report for a scheduled VA examination, the AMC must associate with the claims folder a copy of the notice informing the Veteran of the date, time, and location of the examination. If the notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. 3. When the actions requested in parts 1 and 2 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for pulmonary hypertension. Such readjudication must include consideration of entitlement to service connection on a secondary basis. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). As with 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, it must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs