Citation Nr: 1342011	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  11-02 048	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim for service connection for pneumonia.

2. Entitlement to service connection for a pulmonary condition, including residuals of pneumonia, bronchitis, and chronic obstructive pulmonary disease (COPD).

3. Entitlement to service connection to for a sinus disorder, including sinusitis and rhinitis.

4. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1956 to July 1980.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2010 and October 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The May 2010 decision denied the Veteran service connection for pneumonia, bronchitis, and sinusitis, as well as PTSD.  Following consideration of subsequent evidence, the RO granted the Veteran's PTSD claim in a December 2010 decision, and awarded an initial rating of 30 percent.  In May 2011, the Veteran submitted a claim for an increase of his rating for PTSD, which the Board construes as a Notice of Disagreement.  The Board is characterizing the issue as a one for a higher initial rating.

The Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board via a video conference (video conference hearing) in July 2013.  A transcript of that hearing has been associated with the claims file

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

The issues of entitlement to service connection for a pulmonary condition, entitlement to service connection for a sinus condition, and entitlement to service 


connection for a higher initial rating of PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. The Veteran was originally denied service connection for pneumonia in an October 1980 RO decision.  He did not appeal.

2. Evidence submitted of a current diagnosis of COPD is both "new" and "material." 


CONCLUSIONS OF LAW

1. The October 1980 RO decision that denied the Veteran service connection for pneumonia is final. 38 U.S.C.A. § 7105 (West 2002).

2. As the evidence received since the October 1980 rating decision that denied the claim for service connection for pneumonia is new and material, that claim is reopened.  38. U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. 



Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Additionally, proper notice must be provided to the claimant before the initial unfavorable adjudication by the RO.  38 C.F.R. § 3.159(b)(1); Mayfield v. Nicholson, 444 F.3d 1328, 1334 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

With regards to new and material evidence claims, the Court held that the VCAA notice requirements require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim.  Kent v. Nicholson, 20 Vet. App. 1, 11 (2006).

The Board is reopening and remanding the Veteran's service connection claim for a pulmonary condition.  Thus, any failure with respect to the duty to notify or assist is deemed nonprejudicial.  


II. New and Material Evidence

A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).  Evidence is new when it has not been previously submitted to the VA.  It is material when by itself or when considered with previous evidence of record, the evidence relates to an unestablished fact necessary to substantiate the claim.  Such evidence cannot be cumulative or redundant of the evidence of record at 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).  In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet.App. 312 (1999).

Evidence will satisfy the reasonable possibility standard when, considered with the old evidence, it would at least trigger the VA's duty to assist by providing a medical opinion.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  

In an application to reopen a previously denied claim, the Board must examine evidence which has been submitted since the last prior final RO or Board decision which denied the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  

The last prior, final decision regarding the Veteran's claim for service connection for a pulmonary condition was issued in October 1980.  There, the Veteran was attempting to establish service connection for a pulmonary condition (specifically for pneumonia).  He was denied after he failed to report to his scheduled VA examination.  The Veteran did not appeal and that decision became final.  

In support of his claim, the Veteran underwent a VA compensation and pension examination in May 2012.  That examination confirmed a diagnosis of COPD, which the Veteran reported he first received at a private facility in 2009.  There is a private record in the claims file which indicates the Veteran possessed a COPD diagnosis in January 2010.

The Veteran has also submitted a Respiratory Conditions Disability Benefit Questionnaire (DBQ) from a private physician (Dr. M.) which states that the Veteran received treatment for various conditions, including COPD, bronchitis, and "follow-up from pneumonia" since 2002.  

These pieces of evidence, having never been considered by the RO before, are new.  As this evidence shows the Veteran possesses, or possessed recently, various pulmonary diagnoses, which were not established at the time of the 1980 denial, 


they are also material.  Thus, the Board finds that new and material evidence has been submitted in support of his claim and it is therefore reopened.  


ORDER

New and material evidence having been received, the issue of entitlement to service connection for pneumonia is reopened. 


REMAND

Unfortunately, the Veteran's claims must be remanded for further development.  

Regarding the Veteran's claim for service connection for a pulmonary condition, remand is needed for an opinion regarding the etiology of his current COPD.  The Veteran underwent a VA examination for the condition in May 2012; however, the examiner did not render an adequate opinion.  An addendum statement was provided by the examiner in July 2012, which stated, "Veteran carries a diagnosis of COPD and this is due in part to his years of cigarette smoking."  This statement is not an adequate opinion, as it does not properly address the standard for service connection.  Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Board must remand if further clarification of the evidence is needed in order to render a proper appellate decision.  Bowling v. Principi, 15 Vet. App. 1, 12 (2001).  Thus, an addendum is needed to properly address the likelihood the Veteran's current COPD is related to service, specifically his in-service pneumonia diagnosis in 1956.

Regarding the Veteran's claim for service connection for a sinus condition, the claim must be remanded for an addendum opinion.  The Veteran submitted the aforementioned respiratory DBQ in April 2013 from a Dr. M.  Within this, Dr. M. stated that the Veteran had been his patient since May 2002 and that "[o]ver the years he has been seen for COPD, acute exacerbations of COPD, sinusitis, allergic sinusitis and allergic rhinitis, bronchitis and for follow-up from pneumonia."  This evidence was not considered by the VA examiner who performed the May 2012 examination regarding the Veteran's nasal conditions.  As this subsequent evidence is relevant, this claim must be remanded for an addendum opinion.  See 38 C.F.R. § 4.1; Barr, 21 Vet. App. 303, 311 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).

Finally, regarding his claim for a higher initial rating for PTSD, the Veteran stated at his July 2013 hearing that he believed his condition has worsened since his last VA examination in August 2011.  As such, the Board must remand this matter to afford him an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his psychiatric disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995).

Finally, the Veteran's complete treatment records from Jamal Mubarak, M.D., Tricare, and VA must be obtained.

Accordingly, the case is REMANDED for the following action:

1.  Make arrangements to obtain the Veteran's complete treatment records from Tricare and Jamal Mubarak, M.D., dated since July 1980.  

2.  Make arrangements to obtain the Veteran's complete VA treatment records, dated since December 2012.

3.  Thereafter, schedule the Veteran a compensation and pension examination to address the severity of his PTSD.  The claims file must be made available to, and reviewed by, the examiner.  All appropriate testing should be conducted.  

The examiner must also discuss the effect, if any, of the Veteran's PTSD on his social and occupational adaptability.  The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

4.  Return the claims folder to the examiner who performed the May 2012 examination (and later provided the July 2012 addendum) regarding the Veteran's respiratory/pulmonary conditions for an addendum opinion.  

Following review of the claims file, including especially the additional medical evidence submitted or otherwise obtained since his examination of the Veteran, the examiner must render an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that the Veteran's current COPD and/or bronchitis had its clinical onset during active service or is related to any in-service disease, event, or injury.

The examiner must provide a clear rationale and bases for all opinions expressed, if necessary citing to specific evidence in the file supporting conclusions.  The examiner should also note in his or her opinion that a review of the claims file was done, and must discuss pertinent evidence in the claims file.  Specifically, consideration must be given to the Veteran's noted in-service pneumonia and in-service complaints of shortness of breath and lay statements concerning his troubles with the condition since separation.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she must nonetheless provide explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question or needs the benefit of additional evidence or information, etc.

If it is not possible or feasible to have this same VA examiner comment further, then have someone else equally qualified provide this necessary additional comment, which may require having the Veteran reexamined, but this is left to the designee's discretion.

5.  Return the claims folder to the examiner who performed the May 2012 examination regarding the Veteran's sinus conditions for an addendum opinion.  Following review of the claims file, including the additional medical evidence submitted or otherwise obtained since his examination of the Veteran, the examiner must render an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that the Veteran's current sinus condition, to include sinusitis and rhinitis, had is clinical onset during active service or is related to any in-service disease, event, or injury.

The examiner must provide a clear rationale and bases for all opinions expressed, if necessary citing to specific evidence in the file supporting conclusions.  The examiner should also note in his or her opinion that a review of the claims file was done, and must discuss pertinent evidence in the claims file.  Specifically, consideration must be given to the Veteran's DBQ provided by Mubarak, which states that he treated the Veteran for both sinusitis and rhinitis since 2002, as well as the Veteran's in-service treatments for sinusitis and in-service complaints of shortness of breath.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she must nonetheless provide explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question or needs the benefit of additional evidence or information, etc.

If it is not possible or feasible to have this same VA examiner comment further, then have someone else equally qualified provide this necessary additional comment, which may require having the Veteran reexamined, but this is left to the designee's discretion.

6. After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand.  If any report is deficient in any manner, it should be returned to the examiner for corrective action.

7. Finally, readjudicate the claims on appeal.  If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs