Citation Nr: 1418673 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 12-02 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who had active duty service from October 1984 to January 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, a videoconference hearing was held before the undersigned; a transcript is associated with the record. Although the RO reopened the Veteran's claim of service connection for asthma by deciding the issue on the merits in a November 2011 supplemental statement of the case (SSOC), the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board, as the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. The issue of service connection for asthma on de novo review is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on her part is required. FINDINGS OF FACT 1. An unappealed August 1994 rating decision denied the Veteran's initial claim of service connection for asthma based on a finding that such disability was not manifested in, or related to, her service. 2. Evidence received since the August 1994 rating decision includes new evidence that shows that the Veteran received treatment for breathing problems a few months after service (and not nearly two years later as previously found); tends to relate her asthma to service, and thus relate to an unestablished fact necessary to substantiate the claim of service connection for asthma; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for asthma may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies in the instant case. Inasmuch as this decision grants the benefit sought (reopens the claim), there is no reason to belabor the impact of the VCAA on the matter, since any notice error or duty to assist omission is harmless. Whether the Veteran received adequate notice at the hearing before the undersigned is also rendered moot by the Board's decision to reopen the claim. Legal Criteria, Factual Background, and Analysis Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 C.F.R. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). An August 1994 rating decision denied the Veteran's original claim of service connection for asthma based on a finding that such disability was not shown to be related to the Veteran's service. She did not appeal the decision, and it became final. 38 U.S.C.A. § 7105. Evidence of record at the time of the August 1994 rating decision included service treatment records, VA treatment records, and a VA examination, none of which showed or suggested a nexus between the Veteran's asthma and her service. The August 1994 rating decision noted that the evidence of record showed that the Veteran was not treated for asthma until nearly two years after discharge from service. As the claim was previously denied based on a finding that the Veteran's current asthma is unrelated to service, for evidence to be new and material, it must relate to this unestablished fact (i.e., it must tend to show a nexus between the current asthma and service). Evidence received since the August 1994 rating decision includes additional VA treatment records, private treatment records, and the Veteran's own statements, which show that she was treated for breathing problems a few months after discharge from service (and not nearly two years after discharge). Consequently, and particularly in light of the "low threshold" standard under Shade, the Board finds that new and material evidence has been received, and that the claim of service connection for asthma must be reopened. ORDER The appeal to reopen a claim of service connection for asthma is granted. REMAND Service Connection for Asthma The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to her claim. See 38 C.F.R. § 3.159. Specifically, as the record contains evidence that the Veteran received treatment for breathing problems a few months following discharge from service, and she claims that she incurred asthma during service, an examination to secure a medical nexus opinion is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should also arrange for a respiratory diseases examination of the Veteran to determine the likely etiology of her asthma. The entire record must be reviewed by the examiner in conjunction with the examination. Based on review of the record, and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: Based on the factual record, please identify the likely etiology for the Veteran's asthma. Specifically, is it at least as likely as not (a 50% or better probability) that the asthma was incurred during her service, as claimed? Please explain the rationale for all opinions. 2. The AOJ should then review the record and readjudicate de novo the Veteran's claim of service connection for asthma. If it remains denied, the AOJ should issue an appropriate SSOC, and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 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). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs