Citation Nr: 1410152 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-38 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence to reopen a claim of entitlement to service connection for coccidioidomycosis has been received, and if so, whether the reopened claim should be granted. 2. Whether new and material evidence to reopen a claim of entitlement to service connection for bilateral blindness, to include as secondary to coccidioidomycosis has been received, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his Father-in-Law ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from January 1981 to February 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that declined to reopen the claims of entitlement to service connection for coccidioidomycosis and bilateral blindness. The Veteran presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in November 2011. A transcript of the hearing is associated with the Veteran's claims folder. Although the RO has determined that new and material evidence has not been submitted to reopen the claims for service connection for coccidioidomycosis and bilateral blindness, to include as secondary to coccidioidomycosis, the Board must determine on its own whether new and material evidence has been submitted to reopen these claims. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The reopened claims for entitlement to service connection for coccidioidomycosis and bilateral blindness, to include as secondary to coccidioidomycosis, 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. VA will notify the appellant if additional action is required on his part. The Board received additional evidence from the Veteran in July 2013, pertinent to the issues on appeal. The Veteran has not waived consideration of this evidence by the agency of original jurisdiction (AOJ). However, this remand will give the AOJ an opportunity to consider this evidence. FINDINGS OF FACT 1. In an unappealed decision issued in October 2007, the RO denied the Veteran's claim for service connection for coccidioidomycosis. The Veteran was notified thereof by letter dated later that month, along with his appellate rights, but did not file an appeal. 2. The evidence associated with the claims file subsequent to the October 2007 denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for coccidioidomycosis. 3. In an unappealed decision issued in October 2007, the RO denied the Veteran's claim for service connection for bilateral blindness, to include as secondary to coccidioidomycosis. The Veteran was notified thereof by letter dated later that month, along with his appellate rights, but did not file an appeal. 4. The evidence associated with the claims file subsequent to the October 2007 denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for bilateral blindness, to include as secondary to coccidioidomycosis. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for coccidioidomycosis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral blindness, to include as secondary to coccidioidomycosis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) defined VA's duties to notify and assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VCAA 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. Kent v. Nicholson, 20 Vet. App. 1 (2006). As explained below, the Board has determined that new and material evidence has been submitted to reopen the claims for service connection for coccidioidomycosis and bilateral blindness, to include as secondary to coccidioidomycosis. Therefore, no further development under the VCAA is required with respect to the claims to reopen. With respect to the reopened claims, the Board has determined that further development of the record is warranted so that matter is addressed in the remand that follows the order section of this decision. Claims to Reopen As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3. 156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decision makers. 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 (a). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of considering the merits of the underlying issue. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 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). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Analysis In an August 2007 rating decision, the RO denied service connection for coccidioidomycosis and blindness, based on a finding that as there were no service treatment records available for review, there was no evidence that the conditions were incurred in or caused by the Veteran's military service. The service treatment records were subsequently located, and the RO issued another rating decision in October 2007, again denying both claims, based on a finding that neither condition was incurred in or aggravated by the Veteran's active military service. The Veteran did not file an appeal and the decision became final. The Veteran's current claim to reopen was received August 2009. The evidence of record at the time of the October 2007 denial included service treatment records, which showed that the Veteran complained of respiratory and flu-like symptoms and was diagnosed with upper respiratory infections on several occasions, as well as hay fever and viral syndrome, during active duty. Chest X-rays in service showed no significant abnormality, and there was no diagnosis of a chronic respiratory disability at the time of his discharge. The record also included private medical records from Moore Medical Center and Midwest Regional Medical Center dated in 2006, which showed a diagnosis of coccidioidomycosis. With regard to his claim for bilateral blindness, the evidence of record at the time of the October 2007 denial included service treatment records, which showed that the Veteran reported wearing glasses during his enlistment examination, and his best corrected visual acuity at that time was 20/20 bilaterally. The records also show that he was hit in the eye during a softball game in May 1982, and sustained a hematoma (black eye) of the right eye. His visual acuity at that time was also 20/20 bilaterally. The evidence does not show, and the Veteran does not allege, that he had severe vision loss at the time of his discharge. The pertinent evidence added to the record since the October 2007 denial includes the transcript of the Veteran's November 2011 Travel Board hearing. The Veteran testified that although he grew up in southern California, he did not experience frequent colds or respiratory problems prior to service. However, he claimed that within approximately 1 or 1-1/2 months after being deployed to the desert area of Barstow, California in 1986, where he served for three months, he began experiencing respiratory and flu-like symptoms, which he believes were the early manifestations of his currently-diagnosed coccidioidomycosis. The Veteran testified further that he continued to suffer from flu-like symptoms and respiratory problems following his discharge from service, but that his symptoms became significantly worse in 2005 or 2006, at which time, he was hospitalized and finally diagnosed with toxic coccidioidomycosis by private pulmonologist, M.A. The Veteran testified further that Dr. M.A. informed him that he more than likely contracted coccidioidomycosis when living in the desert in southwest California (Barstow), which he only did during his active military service. He did not grow up in the desert area. He also testified that he subsequently experienced significant vision loss and eventually blindness in both eyes, as a result of the coccidioidomycosis. See November 2011 Travel Board hearing transcript. The evidence also includes private treatment records, which indicate that the Veteran has been diagnosed with severe bilateral vision loss, which is due in part to his diagnosed coccidioidomycosis. See letter from State of California Department of Rehabilitation received in October 2009, September 2009 letter from L.P., MD of Deaconess Physician Services, August 2008 treatment records from Foothill Presbyterian Hospital, October 2009 treatment records from Pomona Valley Hospital in California, and October 2009 treatment records from R.R., MD. The statements from the Veteran during his Board hearing, that his currently diagnosed coccidioidomycosis developed specifically as a result of his active military service in the southwestern desert of Barstow, California, and not as a result of him living in the southwest part of the United States (southern California), prior to his active military service, and that the pulmonologist who diagnosed him with the disorder opined that it was more than likely a result of his living in the southwestern desert, is not cumulative or redundant of the evidence previously of record; it is also related to an unestablished fact necessary to substantiate the claim, i.e., that the Veteran's currently diagnosed coccidioidomycosis is related to his active military service. Moreover, this evidence is sufficiently supportive of the claim to raise a reasonable possibility of substantiating the claim. The newly submitted medical evidence, showing that the Veteran has been diagnosed with bilateral vision loss, due in part to his diagnosed coccidioidomycosis, is not cumulative or redundant of the evidence previously of record; it is also related to an unestablished fact necessary to substantiate the claim, i.e., that the Veteran has bilateral vision loss, secondary to his coccidioidomycosis. Moreover, in light of the Board's decision to reopen the claim for service connection for coccidioidomycosis, this evidence is sufficiently supportive of the claim to raise a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been received and the claim of entitlement to service connection for bilateral blindness is reopened. The additional evidence demonstrates that further development is required before the claims may be considered on the merits. ORDER New and material evidence has been presented, and the claim for service connection for coccidioidomycosis is reopened; the appeal is granted to this extent only. New and material evidence has been presented, and the claim for service connection for bilateral blindness, to include as secondary to coccidioidomycosis, is reopened; the appeal is granted to this extent only. REMAND Under the VCAA, 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); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. As noted above, the Veteran contends that his currently diagnosed respiratory disorder, coccidioidomycosis, developed as a result of his active military service in the desert of Barstow, California. Evidence of record shows that the Veteran was born in Los Angeles, California, and that he resided in Pomona, California for a significant amount of time, prior to and after his military service. There is no indication at the time of the Veteran's entrance onto active duty that he had respiratory problems. However, service treatment records show that during active duty, he complained of respiratory and flu-like symptoms and was diagnosed with upper respiratory infections on several occasions, as well as hay fever and viral syndrome. Nevertheless, chest X-rays during active duty did not show any significant abnormality, and he was not diagnosed with a chronic respiratory disorder at the time of his discharge in 1987. The Veteran testified during his Board hearing in November 2011 that he continued to experience frequent flu-like and respiratory symptoms, and that he was first diagnosed with coccidioidomycosis by pulmonologist, M.A., in 2005 or 2006, who informed him that the disorder more than likely developed during his active duty in the desert of Barstow, California. Private treatment records from the Midwest Regional Medical Center show that the Veteran, who had recently relocated from California, was initially seen by Dr. M.A. in August 2006, and reported that he had not been feeling well for a while. He also complained of headaches and cough with sputum production. The notes indicate that he had initially been admitted to Moore Hospital and diagnosed with diabetes mellitus, type 2. He was diagnosed at that time with bilateral interstitial infiltrates, diabetes mellitus, type 2, and panuveitis. Later in September 2006, after being hospitalized for a cavitary lesion of the right lower lung, the Veteran was diagnosed with and treated by Dr. M.A. for coccidioidomycosis. The notes indicated that Dr. M.A. was stopping the treatment, and that the Veteran would follow-up with his primary care physician. Dr. M.A. did not offer an opinion as to the etiology of the disability. Private treatment records dated through 2011 show that the Veteran has continued to be diagnosed with and treated for coccidioidomycosis. The medical evidence of record contains competent evidence of a current diagnosis of coccidioidomycosis. The Veteran's reports of in-service respiratory and flu-like symptoms and continuity of symptomatology provide evidence that his currently diagnosed coccidioidomycosis may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, contemporaneous evidence of an ongoing respiratory disability, including coccidioidomycosis, in the years following service is not of record. Furthermore, there is no medical opinion of record addressing the etiology of the currently diagnosed coccidioidomycosis. Therefore, the Board believes that the Veteran should be afforded a VA examination to determine the nature and etiology of his currently diagnosed coccidioidomycosis. 38 U.S.C.A. § 5103A(d) (West 2002). The Board also notes that the claims file, including the Virtual VA e-folder, does not contain any treatment records dated after January 2011. As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the claims. The Veteran is hereby notified that it is the Veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). The Board also notes that as the Veteran also claims that he has bilateral blindness, secondary to his coccidioidomycosis, which he claims is related to his active military service, his claim for service connection for bilateral blindness is inextricably intertwined with the issue of entitlement to service connection for coccidioidomycosis, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to service connection for bilateral blindness cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The Board is required to consider all issues, and theories of entitlement, raised by the appellant. See Robinson v. Peake, 21 Vet. App. 545 (2008), citing Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000). Accordingly, the case is REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, afford the Veteran a VA examination to determine the etiology of his currently diagnosed coccidioidomycosis. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum, and any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that his coccidioidomycosis is etiologically related, in whole or in part, to the Veteran's active service. The examiner should provide a rationale for all opinions expressed. The examiner is advised that the Veteran is competent to report symptoms and injuries, as well as diagnoses provided to him by physicians. If the Veteran's reported history is discounted, the examiner should provide a reason for doing so. A Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 4. Readjudicate Veteran's claim as one for entitlement to service connection for coccidioidomycosis, and entitlement to service connection for bilateral blindness, to include as secondary to coccidioidomycosis. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. The appellant 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs