Citation Nr: 1416500 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 09-30 110 ) 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 sufficient to reopen or reconsider the claim of entitlement to service connection for a low back disability, and if so, whether service connection is warranted. 2. Whether new and material evidence has been submitted sufficient to reopen or reconsider the claim of entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), and if so, whether service connection is warranted. 3. Entitlement to service connection for a heart disability, to include hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011, the Veteran testified at a travel Board hearing. A transcript of the hearing is of record. In March 2011, the Board remanded the claims for further development. The issues of entitlement to service connection for a lung disability, to include COPD, and of entitlement to service connection for a heart disability, to include hypertension, 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. In an August 2003 decision, the Board denied the Veteran's claim of entitlement to service connection for a low back disability. 2. Evidence added to record since the Board's August 2003 decision was not previously of record, but is not material and does not raise a reasonable possibility of substantiating the claim for a low back disability. 3. In a September 2006 rating decision, the RO denied the Veteran's claim of entitlement to service connection for lung disability. 4. The evidence submitted since the September 2006 rating decision is neither cumulative nor redundant of the evidence in the record at the time of the prior final denial; relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating the claim for service connection for a lung disability. CONCLUSIONS OF LAW 1. As new and material evidence has not been received since the Board's August 2003 decision, the criteria for reopening the claim for service connection for a low back disability are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. New and material evidence has been submitted since the September 2006 rating decision, and the Veteran's claim for service connection for a lung disability, to include COPD, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate a claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2013); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The duty to notify requires, in the context of a claim to reopen, the Secretary to 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. Without deciding whether the notice and development requirements have been satisfied, the Board is not precluded from adjudicating the issue of whether new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a lung disorder, to include COPD, because the Board is reopening the claim. With respect to the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a low back disability, by a January 2008 pre-decisional letter, the Veteran was notified that service connection for a back disability was previously denied and the reason for that denial. The notice letter cites a December 2011 rating decision which was ultimately appealed to the Board in August 2003 as the last final denial. Although the incorrect decision was referenced, the Board finds that adequate notice has been provided, as the Veteran was informed about what evidence is necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial in August 2003, identical to the evidence lacking in the December 2001 rating decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. The Veteran's service treatment records, VA medical records, private medical records, and Social Security Administration (SSA) disability records were reviewed by both the AOJ and the Board in connection with adjudication of this claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. The duty to assist by providing a VA examination does not attach until the claim has been successfully reopened. 38 C.F.R. § 3.159(c). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. Analysis The Veteran is seeking service connection for a low back disability and for a lung disability. As will be discussed below, these claims have been previously denied. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The Board must therefore proceed to analyze whether new and material evidence has been submitted since the prior final decision. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). New evidence is defined as 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). Section 3.156(a) creates a low threshold for reopening previously denied claims. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. The phrase "raises a reasonable possibility of substantiating the claim" is one which enables rather than precludes reopening, and one which contemplates "the likely entitlement to a nexus mediacal examination if the claim is reopened." Id. at 121. Low Back Disability Service connection for a low back disability was denied in a December 2001 rating decision and the Veteran appealed that decision to the Board. In an August 2003 decision, the Board upheld the December 2001 rating decision. The August 2003 Board decision is final. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100. The evidence of record at the time of the Board's August 2003 decision included evidence of lumbosacral spine problems beginning in the 1990's, a November 2000 VA spine examination which showed a diagnosis of chronic lumbar strain and January 2003 hearing testimony in which the Veteran indicated that he sustained a back injury in service. The Veteran's service treatment records were not of record. The Board denied the claim on the basis that there was no competent medical evidence which linked a current low back disability with a disease or injury in service. In December 2007, the Veteran filed the present claim to reopen the issue of entitlement to service connection for a low back disability. The subsequently received evidence includes current VA treatment records that show diagnoses and treatment for the low back and SSA disability records. Also of record is the Veteran's Board hearing testimony in March 2011 whereby the Veteran related a current low back disability to his period of active duty service. In this case, the additional evidence which was received merely shows treatment for the low back, it does not indicate that a low back disability was initially manifest or aggravated during service or that it is otherwise related to service. The only other evidence in support of the Veteran's claim consists of his statements indicating that a current low back disability is related to his period of active service. However, these statements are cumulative of statements or allegations made when he originally claimed service connection for a low back disability, and therefore his statements are not new evidence. Moreover, the Board notes that the Veteran's service personnel records and service treatment records were associated with his claims folder in February 2008. The Board acknowledges that 38 C.F.R. § 3.156(c) instructs VA to reconsider claims upon receipt of relevant official service department records. Relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." See Black's Law Dictionary 1316 (8th ed. 2004) (defining "relevant" as "[l]ogically connected and tending to prove or disprove a matter in issue; having appreciable probative value - that is, rationally tending to persuade people of the probability or possibility of some alleged fact")." See Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). The Veteran's personnel records and service treatment records do not serve to substantiate his claim. Significantly, the records are negative for any treatment or diagnosis of a low back disability. Therefore, the records are not relevant, and do not require that the Veteran's claim be reopened. Therefore, the additional evidence considered in conjunction with the record as a whole does not raise a reasonable possibility of substantiating the claim for a low back disability. In short, the Veteran's service treatment records, VA treatment records, SSA disability records, service personnel records, as well as statements by the Veteran, do not demonstrate a causal relationship between his service in the military and his claimed low back disability. In sum, the evidence submitted by the Veteran raises no reasonable possibility of substantiating the claim for a low back disability. Thus, it is not material within the meaning of 38 C.F.R. § 3.156(a), and the claim may not be reopened. Lung Disability The Veteran's initial claim seeking service connection for a lung disability was denied by the RO in September 2006 because the evidence did not show that a lung disability was related to service. At the time of the September 2006 decision, the Veteran's service treatment records were not available for review, however, post-service treatment records showed that the Veteran was diagnosed as having COPD. The Veteran did not perfect an appeal thereof. Thus, the September 2006 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2013). In December 2007, the Veteran filed the present claim to reopen the issue of entitlement to service connection for a lung disability. The evidence associated with the claims file since September 2006 includes the Veteran's personnel records and service treatment records and as noted above, such evidence is "official service department records" as contemplated by 38 C.F.R. § 3.156(c). Reconsideration of the claim is not warranted on this basis, however, as the personnel records as well as the service treatment records are not "relevant" as required for reconsideration under 38 C.F.R. § 3.156(c). More specifically, the records are not relevant because they do not relate to whether a lung disability is related to service. Both sets of records are negative for any documentation of treatment of a lung disability in service. Nonetheless, additional evidence added to the claims file since the September 2006 decision includes the Veteran's March 2011 hearing testimony and a March 2011 positive nexus opinion provided by a private physician. The Veteran testified that he was a metal smith, boatswain's mate, boiler tender, painter and damage control man. He indicated continued exposure to asbestos while aboard the U.S.S. Maddox. He provided that his shortness of breath and other breathing problems started in the late seventies or early eighties and that he was prescribed oxygen in 2006. In a March 2011 letter, the Veteran's private physician (Dr. M.A.) stated that the Veteran's COPD is caused by his exposure to asbestos while in the Navy. This medical nexus evidence is new evidence, as it was not of record at the time of the September 2006 rating decision. In addition, the evidence is material, as it raises a reasonable possibility of substantiating the Veteran's claim for service connection for a lung disability, to include COPD. Accordingly, the Board concludes that the Veteran has submitted new and material evidence sufficient to reopen his claim for a lung disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The claim for entitlement to service connection for a lung disability, to include COPD, is reopened. The merits of the reopened claim are remanded below. ORDER New and material evidence has not been received to reopen a claim for service connection for a low back disability, and the appeal is denied. New and material evidence having been submitted, the claim of entitlement to service connection for a lung disability is reopened. REMAND The Board finds that the reopened claim of entitlement to service connection for a lung disability, to include COPD, as well the claim of entitlement to service connection for a heart disability, to include hypertension, warrant further development. The Veteran contends that his currently diagnosed COPD is the result of in-service exposure to asbestos. He indicated that he was assigned to work as a metal smith, boatswain's mate, boiler tender, painter, and damage control man in the U.S. Navy while aboard the U.S.S. Maddox. In a November 2011 memorandum, the RO corroborated the Veteran's exposure to asbestos. Specifically, the RO determined that the Veteran's military occupational specialties of boiler tender and painter showed a high probability and probable likelihood of being exposed to asbestos while serving in the Navy. As noted above, in a March 2011 letter, the Veteran's private physician, Dr. M.A. stated that the Veteran's COPD was caused by his exposure to asbestos in the Navy. However, the opinion does not include any supporting reasoning or rationale as to why the Veteran's COPD is related to asbestos exposure. The Board remanded in the claim in September 2011, in pertinent part, to afford the Veteran a VA respiratory examination to determine the current nature, extent and etiology of his diagnosed COPD. A November 2011 VA respiratory conditions Disability Benefits Questionnaire (DBQ) was conducted pursuant to the September 2011 remand. The examiner concluded that the Veteran's COPD is secondary to smoking and not related to any inservice events or asbestos exposure. No further explanation was provided. The Board finds that the opinion is essentially conclusory and without supporting rationale. As such, the examination is inadequate and is not in substantial compliance with the instructions of the Board. Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers on a Veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary of VA a concomitant duty to ensure compliance with the terms of such an order.). Thus, further opinion is warranted. With respect to the remaining issue of entitlement to service connection for a heart disability, to include hypertension, the Veteran contends that such disorder is (at least in part) due to, or secondary to the lung disability. At present, the claim of service connection for a heart disability is inextricably intertwined with the lung claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Therefore, the Board will defer its decision on this claim until the Veteran's lung claim is resolved. Accordingly, the case is REMANDED for the following action: 1. Return the complete claims file, to include a copy of this remand, to the November 2011 VA DBQ examiner. Prior to drafting the opinion, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not that the Veteran's current COPD had its onset in service or is the result of exposure to asbestos in service. In so doing, the examiner should comment on the RO's November 2011 memorandum corroborating the Veteran's exposure to asbestos during active service and the March 2011 letter from the Veteran's private physician. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2013), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. If the November 2011 VA DBQ examiner is unavailable, another qualified examiner shall be requested to provide the above opinions. Should a new examination be required, one should be scheduled. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2013). 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs