Citation Nr: 1340735 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-20 361 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for chronic obstructive pulmonary disease. 2. Entitlement to service connection for hypertension, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision of the RO that, in pertinent part, declined to reopen a claim for service connection for chronic obstructive pulmonary disease on the basis that new and material evidence had not been received; and denied service connection for hypertension. The Veteran timely appealed. In April 2011, the RO granted service connection for coronary artery disease, status-post myocardial infarction with stent placement. That matter is no longer in appellate status, and will not be addressed by the Board. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issue of service connection for hypertension 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. In rating decisions in January 2005 and in February 2005, the RO denied service connection for chronic obstructive pulmonary disease. The Veteran did not appeal within one year of being notified. 2. Evidence associated with the claims file since the January 2005 and February 2005 denials, when considered by itself or in connection with evidence previously assembled, does not create a reasonable possibility of substantiating a claim for service connection for chronic obstructive pulmonary disease. CONCLUSIONS OF LAW 1. The RO's January 2005 and February 2005 decisions, denying service connection for chronic obstructive pulmonary disease, are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2013). 2. The evidence received since the RO's January 2005 and February 2005 denials is not new and material, and the claim for service connection for chronic obstructive pulmonary disease is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Notice in a new and material evidence claim (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The notice also requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, 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. Failure to provide this notice is generally prejudicial. Kent v. Nicholson, 20 Vet. App. 1 (2006). A September 2008 letter notified the Veteran that his previous claim for service connection for chronic obstructive pulmonary disease had been denied in January 2005 and in February 2005. The RO advised the Veteran of the evidence needed to establish each element for service connection. The RO advised the Veteran of the reason for the previous denials and that once a claim had been finally disallowed, new and material evidence was required for reopening, and also told him what constituted new evidence and what constituted material evidence. This letter satisfied the notice requirements of Kent. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. The Veteran is not entitled to an examination prior to submission of new and material evidence. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Petition to Reopen The RO originally denied service connection for chronic obstructive pulmonary disease in January 2005 on the basis that the condition was not present in service, and did not manifest to a compensable degree within the first post-service year; and that the condition is not a disability associated with Agent Orange exposure. In February 2005, the RO again denied service connection for chronic obstructive pulmonary disease because the new evidence submitted did not show that chronic obstructive pulmonary disease occurred in or was caused by active service, or manifested to a compensable degree within the first post-service year. The evidence of record at the time of the last denial of the claim included the Veteran's service treatment records, VA treatment records, private treatment records, and statements from the Veteran. Service treatment records do not reflect any findings or complaints of respiratory problems or chronic obstructive pulmonary disease. VA treatment records show that a chest x-ray taken in February 2004 revealed mild chronic lung and bony changes with suggestion of an element of chronic obstructive pulmonary disease. In September 2004, the Veteran stated that whenever he caught a cold, it always turned into bronchitis; and that this had been going on for years. He stated that he continued to have bronchitis every three or four months. Private treatment records, received in November 2004, show assessments of acute bronchitis in November 2002 and in December 2002; bronchitis in October 2003; possible acute bronchitis in April 2004; and bronchitis in September 2004. Based on this evidence, the RO concluded that there is no evidence of any chronic lung condition shown in service; and that chronic obstructive pulmonary disease is shown to have had its onset many years after the Veteran's discharge from active service. Nor is there any record of treatment for bronchitis in active service. The present claim was initiated by the Veteran in July 2008. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Under 38 C.F.R. § 3.156(a), "new evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Furthermore, new and material evidence is "neither cumulative nor redundant" of evidence of record at the time of the last prior final denial, and must "raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010), the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger VA's duty to assist by providing a medical opinion. The evidence of record has not triggered this duty here. Evidence added to the record includes additional VA treatment records, private treatment records, Social Security records primarily pertaining to other disabilities, VA examination reports, and statements by the Veteran. None of the additional treatment records includes a diagnosis of chronic obstructive pulmonary disease. Chest x-rays taken by VA in March 2008 revealed no active disease; and the Veteran denied having a cough, congestion, chest pain, shortness of breath, and dyspnea during clinical evaluation in April 2010. Private treatment records, received in August 2008, simply note the earlier finding of a mild chronic lung disease suggestive of an element of chronic obstructive pulmonary disease in March 2004; and show an upper respiratory infection in August 2006, and an assessment of bronchitis in October 2007. VA pulmonary examination in November 2010 revealed findings of abnormal breath sounds, such as prolonged expiration and decreased breath sounds. While the examiner indicated at the time that the Veteran became winded and had decreased stamina from his chronic obstructive pulmonary disease, reports of subsequent VA examinations in December 2011 and in April 2012 reveal no respiratory conditions. No current diagnosis of chronic obstructive pulmonary disease is of record. In April 2010, the Veteran contended that his chronic obstructive pulmonary disease is a direct result of his exposure to Agent Orange during active service in Vietnam. He is not shown to be competent to establish a diagnosis, or to specify the diagnostic criteria of chronic obstructive pulmonary disease, or to relate chronic obstructive pulmonary disease to service. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He does not meet any of the three exceptions for competent lay evidence as listed under Jandreau. Although the newly submitted evidence is new in that it was not previously of record, what is missing to award service connection is evidence of current chronic obstructive pulmonary disease; and evidence that links current chronic obstructive pulmonary disease to an in-service incident or to a continuity of symptomatology of bronchiectasis since active service, or to a service-connected disability. The newly submitted evidence does not include a diagnosis of chronic obstructive pulmonary disease, and does not link chronic obstructive pulmonary disease with service. Hence, the evidence is not material for purposes of reopening the claim. The Veteran's general statements to the effect that chronic obstructive pulmonary disease is related to service are cumulative of statements made previously, and thus are not new and material. Absent competent evidence of a current diagnosis of chronic obstructive pulmonary disease, and competent evidence of a nexus between currently shown chronic obstructive pulmonary disease and service, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for chronic obstructive pulmonary disease is not reopened. ORDER New and material evidence has not been received; the claim for service connection for chronic obstructive pulmonary disease is not reopened. REMAND The Veteran contends that his hypertension is caused by, or is a result of, his presumed exposure to Agent Orange in active service. His active duty included 11 months, 29 days, in Vietnam; hence, he is presumed to have been exposed to herbicides in service. See 38 U.S.C.A. § 1116(f) (West 2002). The Veteran's service treatment records do not reflect any treatment for hypertension or for blood pressure problems. A blood pressure reading at the time of the Veteran's separation examination from active service in August 1968 was 124/70 (sitting). VA treatment records show the onset of hypertension, requiring medication for control, in 2002; and of mildly elevated blood pressure prior to then for several years. Systemic hypertension, controlled, was noted in May 2004. Reports of VA examinations in December 2011 and in April 2012 include diagnoses of hypertension. While the Veteran underwent VA examinations in December 2011 and in April 2012, neither examiner considered the Veteran's lay statements as to his presumed exposure to Agent Orange. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In addition, the Board notes that the December 2011 and April 2012 examiners opined that the Veteran's ischemic heart disease does not include hypertension, primarily because hypertension does not qualify within the generally accepted medical definition of ischemic heart disease. With regard to a claim for secondary service connection, the Board finds that neither examiner provided an opinion regarding whether the Veteran's hypertension is aggravated by the service-connected coronary artery disease, status-post myocardial infarction with stent placement. Hence, the Board cannot resolve this matter without further medical clarification. While further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file (physical or electronic), VA treatment records for hypertension, dated from May 2012 to present. 2. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of hypertension. Upon examination of the Veteran and review of the file, the examiner is asked to render opinions as to the following: a. whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension is the result of disease or injury incurred or aggravated during service, to specifically include the Veteran's presumed in-service exposure to herbicides. b. whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected coronary artery disease, status-post myocardial infarction with stent placement, aggravated (i.e., increased the severity of) the Veteran's hypertension beyond the natural progress. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's hypertension found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected coronary artery disease, status-post myocardial infarction with stent placement. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be made without resort to mere speculation is not acceptable without a detailed explanation as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. No action is required of the Veteran and his representative until they are notified by VA; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). The Veteran 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. 2013). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs