Citation Nr: 1326918 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 08-03 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to service connection for hepatitis C with liver failure and cirrhosis. 2. Entitlement to service connection for arthritis of unspecified joints (other than the spine). 3. Entitlement to service connection for a low back disability. 4. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a lung disability (originally claimed as bronchial asthma and bronchitis). 5. Entitlement to service connection for a lung disability (originally claimed as bronchial asthma and bronchitis). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from January 18, 1974 to January 30, 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2007 and May 2008 rating decisions of the RO in Nashville, Tennessee. The Board observes that the Veteran requested a hearing in association with his claim. The Veteran withdrew his hearing request in a January 2009 statement. In October 2011, the Veteran's representative submitted copies of the Veteran's service personnel records along with the Informal Hearing Presentation, without a waiver. These documents were already part of the file and as such, a waiver of review by the Agency of Original Jurisdiction (AOJ) is not required in order for the Board to move forward with the case. In December 2011, the Board remanded the claims on appeal to the RO for additional development. The requested development has been completed and the matters have returned to the Board for additional development. As the RO has separately adjudicated and denied the claims for service connection for arthritis and back pain, the claims for service connection for arthritis of unspecified joints does not include consideration of the Veteran's spine. The Board has framed these issues as noted on the title page. Concerning the new and material issue on appeal, the Board notes that by a December 2005 rating action, the RO declined to reopen a previously denied claim for service connection for bronchial asthma. The RO also denied service connection for bronchitis. The Veteran did not appeal this rating action and it became final with respect to these claims. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In January 2008, VA received the Veteran's petition to reopen his previously denied claim for a respiratory disability, which he claimed as "asthma, COPD bronchitis." (See VA Form 9, Appeal to Board of Veterans' Appeals, received by the RO in January 2008). In Velez v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that when a veteran filed a claim for a nervous condition, this was not a new claim based on a distinctly diagnosed condition from a previously adjudicated claim for a stress disorder. Velez v. Shinseki, 23 Vet. App. 199, 203 (2009). The Court stated that, because the claims involved overlapping symptoms, the factual basis for the Veteran's claim was the same and thus distinguishable from the scenarios presented in Boggs and Ephraim. Id, noting that in Boggs v. Peake, 520 F.3d 1330, 1334 (Fed. Cir. 2008) and Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) the Federal Circuit held that claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims). Given that the Veteran's lungs have been a common component of the both the original 1974 claim and the claims received in 2005 and 2008, the Board concludes that this case is similar to the factual scenario presented in Velez. Thus, the Board is broadening the scope of the claim because the present claim turns upon essentially the same history, factual bases and diagnoses as were considered in the prior final rating decision--the Veteran has experienced a chronic lung disorder as a result of his active service. As such, the threshold question of whether new and material evidence has been received to reopen a previously denied claim for service connection for a lung disorder (originally claimed as bronchial asthma and bronchitis) must be addressed. The issue of entitlement to service connection for a lung disorder (originally claimed as bronchial asthma and bronchitis) 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. Hepatitis C did not have its onset during military service; and, the competent and credible evidence of records fails to relate it to military service. 2. Arthritis of unspecified joints (other than the spine) did not have its onset in military service or within a year of service discharge; and, the competent and credible evidence fails to relate it to military service. 3. A back disability, currently diagnosed as osteopenia of the thoracic spine, did not have its onset in service; and, the competent and credible evidence fails to relate it to military service. 4. By a final and unappealed December 2005 decision, the RO declined to reopen a previously denied claim for service connection for bronchial asthma. The RO also denied service connection for bronchitis. 5. Evidence added to the record since the RO's final December 2005 rating decision relates to an unestablished fact necessary to substantiate the underlying claim for service connection for a lung disability (i.e., evidence showing that the Veteran has a current diagnosis of bronchitis). CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.301(d), 3.303 (2012). 2. Arthritis of unspecified joints (other than the spine) was not incurred in or aggravated by military service, nor may arthritis be presumed to have been incurred or aggravated due to active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for establishing service connection for a back disability, currently diagnosed as osteopenia of the thorac spine, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. The December 2005 rating decision, wherein the RO declined to reopen a previously denied claim for service connection for bronchial asthma and denied service connection for bronchitis, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 5. Evidence received since the final December 2005 rating decision is new and material, and the claim for service connection for a lung disability (previously claimed as bronchial asthma and bronchitis) is reopened. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Regarding the issue whether new and material evidence has been provided for entitlement to service connection for a lung disability, the Board is granting in full the benefit that portion of the issue on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. The question of whether VA met with its duty to notify and assist on the underlying claim for service connection will be addressed in a future decision. With regard to the claims for service connection for hepatitis C, arthritis of unspecified joints (other than the spine) and back disability on appeal, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a January 2007 letter of the criteria for establishing his service connection claims, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in May 2007. Nothing more was required. VA has also fulfilled its duty to assist. The RO has obtained the Veteran's service treatment records (STRs) and VA and private outpatient treatment and examination records. Records from the Social Security Administration (SSA) have also been added to the record. The Veteran has presented written arguments in various documents submitted to VA in support of the above-cited claims. No outstanding evidence has been identified that has not otherwise been obtained. With respect to the Veteran's claim for service connection for hepatitis C, in the above-cited January 2007 letter, the RO requested the the Veteran inform VA of any hepatitis C risk factors that he might have been exposed to during his lifetime. See RO's January 2007 letter to the Veteran. The Veteran did not respond to the RO's request. While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (veteran cannot passively wait for help from VA). The Veteran was not provided with examinations and medical nexus opinions with regard to his claims for service connection for hepatitis C, arthritis of unspecified joints (other than the spine) and back disability. The Board finds none is necessary as the standards of McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met in this case to require scheduling VA examinations for medical nexus opinions. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). As will be discussed in greater detail below, there is no finding of in-service incurrence of the Veteran's hepatitis C, arthritis of unspecified joints (other than the spine) and back disability, or for many years thereafter. There is also no competent and credible evidence indicating the possibility that these disabilities are related to the Veteran's short period of military service. Finally, as noted above, this appeal was remanded by the Board in December 2011 for further development. The Board instructed the RO to obtain outstanding VA treatment records from the VA Medical Center in Memphis, Tennessee, dated from November 2008 to the present, as well as SSA records. Treatment records from the above-cited VAMC, dated from 2000 to 2012, as well as SSA records, have been associated with the Veteran's physical claims files and uploaded to his Virtual VA electronic file. The Board is now satisfied there was substantial compliance with its December 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to the issues on appeal. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits Analysis Service connection-general criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases, such as arthritis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a) ). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. As the Veteran has been diagnosed with arthritis of the hands and knees and osteoarthritis/degenerative joint disease of unspecified joints, the tenets of 3.303(b) have been invoked with respect to the claim for service connection for arthritis of unspecified joints (other than the spine). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365 . (i) Hepatitis C In addition to the need of having evidence of a current diagnosis of hepatitis C, there must also be evidence of a diagnosis of hepatitis C in service, symptoms of hepatitis C in service, or evidence of specific risk factor(s). Risk factors for hepatitis C include: intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA letter 211B (98-110) November 30, 1998. The Veteran has been diagnosed with hepatitis C. VA treatment records, dated in December 2005, show a diagnosis of elevated transaminases with a questionable history of hepatitis C. The examining clinician noted that the Veteran had a fatty liver most likely secondary to alcohol abuse. A June 2006 VA treatment report reflects that the Veteran was status-post hepatitic C antibody in December 2005 followed by a positive test in March 2006 and a viral load in April 2006. VA treatment reports, dated in September 2007, October 2007 and November 2008, contain diagnoses of hepatitis C. Thus, the crux of the Veteran's claim hinges on whether there is a nexus between the diagnosis of hepatitis C to military service. Service treatment records are negative for complaints, treatment, or diagnosis pertinent to hepatitis C or liver abnormalities. The Veteran was discharged after 13 days of military service due to a pulmonary disability. The Board acknowledges that reliable screening for hepatitis C was not recognized at the time of the Veteran's period of service and observes that accordingly, the lack of a diagnosis of hepatitis in service is not dispositive of the service connection issue. However, he has not provided any specific contentions as to having any symptoms of hepatitis C in service or to being exposed to in-service risk factors. He instead seems to relate that service connection is warranted solely on the basis that he received a medical discharge. Indeed, there is no competent medical opinion relating the Veteran's hepatitis C with liver failure and cirrhosis to his short period of military service. VA treatment reports, dated in September and December 2005, contain diagnoses of elevated liver function test and alcohol abuse and fatty liver that were likely secondary to alcohol abuse. In March 2006, the Veteran was admitted to a VA hospital because of excessive drinking. A diagnosis of hepatitis C with minimal elevation of AST and AZT was entered. An April 2006 VA treatment report shows that the Veteran had a history of intravenous drug use, had smoked cocaine, and had a new sexual partner. No reference was made to the Veteran's active service. The examining physician indicated that the Veteran's hepatitis C test had gone from negative to positive. A May 2006 VA treatment report reflects that the Veteran had a prior medical history of hepatitis C and alcohol dependence, as well as elevated liver function tests. Overall, no VA or private examiner has related the Veteran's hepatitis C to his 13 days of military service. Thus, a VA examination and opinion addressing a possible nexus is not required, as there is no competent evidence suggesting an etiological link between hepatitis C and the Veteran's short-stint of military service. To reiterate, neither the Veteran's STRs nor his post-service treatment records suggest the onset of hepatitis C or symptoms during service or for many years thereafter. The Board observes that the Veteran has documented drug use after service and, according to a December 2005 VA physician, his fatty liver was likely secondary to alcohol abuse. There is no other opinion to the contrary and that is supportive of the claim. Service connection cannot be granted for a disease incurred as a result of drug abuse as such constitutes willful misconduct. See 38 C.F.R. § 3.301(d). Therefore, service connection cannot be granted for the Veteran's hepatitis C with liver failure and cirrhosis, insofar as it relates to his drug use, whether in service or afterwards. Accordingly, the Board concludes that the preponderance of the evidence of record is against the claim for service connection for hepatitis C with liver failure and cirrhosis. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (ii) Arthritis of unspecified joints (other than the spine) and back disability The Board finds that the preponderance of the evidence of record is against the claims for service connection for arthritis of unspecified joints (other than the spine) and back disability because the competent evidence is against the finding that there is a nexus of these disabilities to military service. The evidence shows that the Veteran has been diagnosed with degenerative joint disease and arthritis of the hands and knees (May 2005 report, prepared by P. K., M. D. (noting that the Veteran gave a history of having had arthritis of the right leg since childhood)) and VA treatment records, dated in March 2006 and September 2007, respectively)). A June 2008 report VA treatment report contains an assessment of osteoarthritis/ degenerative joint disease of unspecified joints. X-rays of the Veteran's right and left feet, performed by VA in July 2008, show early degenerative changes of the first metarsalphalangeal joint. With regards to the Veteran's back, a December 2006 VA x-ray of the chest showed osteopenia of the thoracic spine. In terms of his active service, the Veteran's STRs are wholly devoid of any subjective complaints or clinical findings referable to any subjective complaints or clinical findings of joint and/or low back pain and fractures. A January 1974 service entrance examination report reflects that all of the Veteran's systems were evaluated as "normal." On an accompanying Report of Medical History, he denied having had swollen or painful joints and recurrent back pain. The Veteran was hospitalized, and ultimately discharged in mid-to-late January 1974, for a pulmonary disability. Thus, the crux of the Veteran's claims for service connection for arthritis of unspecified joints (other than the spine) and back disability is whether there is competent and credible lay and/or medical evidence linking these disabilities to military service. The voluminous post-service medical VA and private medical evidence of record does not contain any medical opinion of record linking the Veteran's arthritis of the knees and hands and degenerative joint disease/osteoarthritis of unspecified joints and osteopenia of the thoracic spine to his 13 days of active military service. Coupled with the aforementioned finding that there is no evidence (or even allegation) of complaints, treatment, or diagnosis of arthritis, join pain, or back pain, a VA examination and opinion addressing a possible nexus is not required, as there is no competent evidence suggesting an etiological link between the above-cited disabilities and the Veteran's short-stint of military service. To reiterate, neither the Veteran's STRs suggest the onset of those conditions in service nor do the post-service treatment records suggest the onset of his arthritic and back symptoms during service or within one year of service discharge, or a permanent worsening of any preexisting arthritis of the right leg. Moreover, as there is no evidence of arthritis of the hands and knees manifested to a compensable degree within a year of the Veteran's discharge from service in January 1974, service connection is also not warranted for arthritis on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board concludes that the preponderance of the evidence of record is against the claims for service connection for arthritis of unspecified joints (other than the spine) and back disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (iii) Conclusion Consideration has been given to the Veteran's recent assertions that his hepatitis C, arthritis of unspecified joints (other than the spine), and back disability are due to his short stint of military service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, hepatitis C, and arthritis fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Neither hepatitis C nor arthritis are the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that laboratory testing, X-rays studies, and other specific findings are needed to properly assess and diagnose these disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board readily acknowledges that Veteran is competent to report symptoms such as joint pain and fatigue as well as engaging in certain risk activities. However, as emphasized above, the Veteran has made no such allegations nor has he cited to any evidence to support his theory of service incurrence. He only asserts that service connection is warranted due his receiving a medical discharge for an unrelated pulmonary disorder. Indeed, to the extent that he now alleges symptoms since service, the Board notes that he made no reference to such a history when he filed his claim for benefits in 1974 and 2005. Such undermines his credibility. Emphasis is also placed on the finding that the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders or infectious diseases. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent or credible evidence and lacks probative value. B. New and Material Evidence Claim Petition to Reopen The Veteran seeks to reopen a previously denied claim for service connection for a lung disability (originally claimed as bronchial asthma and bronchitis). The Veteran primarily contends that he was discharged from service for this disability. See VA Form 9, Appeal to Board of Veterans' Appeal, received by the RO in December 2008. The Board finds, for reasons outlined below, that new and material evidence has been received to reopen the claim. Generally, a claim which has been denied in a Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). 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 Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 48 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening. Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). By a December 2005 rating action, the RO declined to reopen a previously denied claim for service connection for bronchial asthma. Reference was made to an earlier March 1974 rating action wherein the RO denied service connection for bronchial asthma finding that the disability had preexisted military service and had not been aggravated therein. The RO also denied service connection for bronchitis. The Veteran was informed of the RO's December 2005 decision that same month, but did not appeal. There was also no relevant evidence added to the file during the applicable one year appeal period. The RO's December 2005 rating action is, therefore, final. 38 U.S.C.A. § 7105. The RO based its negative March 1974 final rating action on the Veteran's service treatment records. A January 1974 service enlistment examination report reflects that the Veteran's lungs and chest were evaluated as "normal." On a January 1974 Report of Medical History, the Veteran denied having had pain or pressure in his chest, chronic cough, asthma or shortness of breath. In the Notes section of the Report, the examining physician noted that the Veteran had been hospitalized for bronchitis one month prior to service entrance but that he was without any significant abnormality. The Veteran was admitted to the hospital for bronchial asthma later that month. During his hospitalization, the Veteran gave a history of having had asthma since age three (3) that was generally associated with respiratory infections. He related that he had been hospitalized two (2) to three (3) months previously for ten days. A Medical Board report issued in late January 1974 reflects that a recommendation to discharge the Veteran for a lack of fitness due to a bronchial asthma was approved. The Veteran was discharged from military service for bronchial asthma that was determined to have existed prior to service, and which was not permanently aggravated by service (as designated by X marks in the applicable boxes). The Veteran was discharged from service six (6) days later. In its final December 2005 decision, the RO determined that the post-service evidence (i.e., VA treatment records, dated from August to October 2005) did not contain any clinical findings of, or treatment for, a chronic lung disability. Thus, the RO concluded that in the absence of any current evidence of a chronic lung disability, new and material evidence had not been received to reopen a previously denied claim for service connection for bronchial asthma. The RO also denied service connection for bronchitis. The Veteran's petition to reopen his previously denied claim for service connection a lung disability was received by the RO in January 2008. (See VA Form 9, received by the RO in January 2008). The Board finds that the new and material evidence has been received to reopen the previously denied claim for service connection for a lung disability (originally claimed as bronchial asthma and bronchitis). Evidence received since the RO's final rating decision includes, in part, VA treatment reports, dated from September 2000 to September 2012. These reports are new because they were not of record at the time of the RO's final December 2005 rating action. They are also material. They are material because they relate to an unestablished fact necessary to substantiated the claim, namely evidence of a chronic lung disability. Specifically, VA treatment reports dated in December 2007 and March 2008 reflect that the Veteran was diagnosed as having bronchitis and stage II gold chronic obstructive pulmonary disease (COPD). There is also a suggestion that both conditions have remained chronic and progressive since service. Therefore, new and material evidence has been received and the claim for service connection for a lung disability (originally claimed as bronchial asthma and bronchitis), is reopened and raises a reasonable possibility of substantiating the claim. ORDER Service connection for hepatitis C is denied. Service connection for arthritis of unspecified joints (other than the spine) is denied. Service connection for a back disability is denied. As new and material evidence has been received to reopen a claim for service connection for a lung disability (originally claimed as bronchial asthma and bronchitis), the appeal to this extent is granted. REMAND As decided herein, the Veteran's service connection claim for a lung disability has been reopened. VA must now proceed to evaluate the merits of the above-cited claim to include developing medical evidence, as detailed below. The appellant contends that his lung disorder, variously diagnosed as bronchial asthma, COPD and bronchitis, had its onset during his short period of active military service from January 18, to January 30, 1974. He alternately argues that any preexisting respiratory disorder was aggravated by his active service. The Veteran's service treatment records show that his lungs and chest were evaluated as "normal" at service entrance in early January 1974. (See January 1974 service enlistment examination report). In the notes section of an accompanying Report of Medical History, the examining physician indicated that the appellant had received treatment for bronchitis one (1) month previously. The examiner noted that there were no significant abnormalities. (See Report of Medical History, dated in January 1974). In January 1974, the Veteran was admitted to the hospital after he developed wheezing that did not respond to medication and hydration. At admission, the Veteran gave a history of having had asthma with respiratory infections since the age of three (3), as well as a history of having been hospitalized two (2) to three (3) months previously for 10 days. During hospitalization in 1974, the Veteran demonstrated inspiratory and expiratory wheezing, diffusely over the chest. A chest x-ray was within normal limits. The Veteran was discharged three (3) days later. It was noted that the Veteran's asthma had improved during his hospitalization after it had been treated with bronchodilators, intermittent pulmonary positive pressure breathing (IPPB), pulmonary toilet, and hydration. The Veteran continued to suffer from occasional faints and wheezes. The Veteran presented himself to a pulmonologist who determined that he should be discharged from military service because of his preexisting bronchial asthma. A Medical Board report issued in late January 1974 reflects that a recommendation to discharge the Veteran for a lack of fitness due to bronchial asthma was approved. The Medical Board found the Veteran to have had childhood bronchial asthma that had existed prior to service and had not been aggravated therein. Post-service VA and private treatment reports, dated from 2000 to 2012, reflect that the Veteran has continued to receive treatment for bronchitis, as well stage II gold COPD. These reports also reflect that the Veteran had a 40-pack a year smoking history and that he gave a history of having been sick a lot with asthma and bronchitis in childhood. (See December 2007 VA treatment report). These reports are devoid of any references by the Veteran concerning his short stint in active military service, which terminated in January 1974. In view of the foregoing, the Board finds that additional medical comment is needed to assist in determining whether the Veteran clearly and unmistakably had a lung disorder prior to beginning his military service and, if so, whether it included any of the lung disorder that have been diagnosed since discharge. If it is determined that the Veteran clearly and unmistakably had a pre-existing lung disorder, further medical comment also is needed concerning whether his military service permanently, aggravated his pre-existing lung condition beyond its natural progression. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). If, on the other hand, this two-part test is not met, medical comment still is needed concerning the whether his current lung disorder(s) are etiologically related to his short period of military service or had its onset therein. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset and etiology of any lung disorder found on examination. The claims files, to include a complete copy of this Remand, must be made available to the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should specifically address, with respect to each diagnosed lung/respiratory disability, the following questions: (i) whether the disability clearly and unmistakably (i.e., obvious or manifest) preexisted service; (ii) if so, whether the disability increased in severity during the Veteran's active service; (iii) if so, whether there is clear and unmistakable evidence that the disability was not aggravated (i.e., permanently worsened) beyond the natural progression during or as a result of service; (iv) for any lung (respiratory) disorder not found to have preexisted service, is as least as likely as not (50 percent probability or greater) that the disability had its onset during the Veteran's military service or is otherwise etiologically related thereto. The examiner should specifically consider the service and post-service treatment records, together with all the other evidence of record in responding to the questions listed above. The rationale for all opinions expressed should be provided. If the examiner cannot provide a requested opinion without resorting to mere speculation, s/he should so indicate and explain the factors that prevent him/her from offering the opinion. 2. After the development requested has been completed, the AMC/RO should review the examiner's report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner has documented his or her review of all pertinent records in the claims files, to include any records uploaded to Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 3. After the above actions have been completed, readjudicate the Veteran's claim for service connection for a lung disorder (originally claimed as bronchial asthma and bronchitis). If the claim remains denied, issue the Veteran and his representative a supplemental statement of the case, and afford him the appropriate period of time within which to respond thereto. The Veteran 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs