Citation Nr: 1427294 Decision Date: 06/17/14 Archive Date: 06/26/14 DOCKET NO. 11-26 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for pulmonary fibrosis, and if so, whether service connection is warranted. 2. Entitlement to service connection for a bilateral hand disability, to include Raynaud's phenomenon, scleroderma, and ulcers. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from January 1968 to January 1971, and had a period of active duty for training (ACDUTRA) from December 1973 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for Raynaud's phenomenon with ulcers of the bilateral hands, and declined to reopen a claim for service connection for pulmonary fibrosis. The issue(s) of entitlement to service connection for a bilateral hand disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not appeal an August 2005 rating decision which denied service connection for pulmonary fibrosis. 2. Evidence received since the August 2005 rating decision, when viewed collectively with the previous evidence of record, relates to a previously unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. A lung disability, including pulmonary fibrosis, is not etiologically related to service. CONCLUSIONS OF LAW 1. The August 2005 rating decision that denied the Veteran's claim for service connection for pulmonary fibrosis is final. 38 U.S.C.A. § 7105 (West 2002 and Supp. 2013). 2. New and material evidence sufficient to reopen the previously denied claim for service connection for pulmonary fibrosis has been received. 38 U.S.C.A. §§ 5108, 7105 (West 2002 and Supp. 2012); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for a lung disability, including pulmonary fibrosis, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a January 2009 letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As discussed below, the Veteran's request to reopen a previously denied claim is being granted, and therefore any notice deficiencies with respect to the elements for reopening previously denied claims was not prejudicial and will not be discussed further. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service treatment records and identified private treatment records have been obtained and associated with the claims file. Notably, an examination has not been obtained to address the nature and etiology of the Veteran's claimed lung disability. However, the Board finds that the evidence, which does not reflect competent and credible evidence of a disability or symptoms in service, and does not reflect credible evidence of continuous symptoms since service, warrants the conclusion that a remand for examinations and/or opinions is not necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service). II. New and Material Evidence The claim for entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate a claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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) (2013). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The U.S. Court of Appeals for Veterans Claims (Court) has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). At the time of the prior denial, the evidence established a current pulmonary fibrosis disability, but did not reflect pulmonary fibrosis or another lung disability on active duty. There was also no nexus linking the Veteran's current condition to service. Since the prior denial, additional evidence has been associated with the claims file. This includes additional treatment records documented the Veteran's current lung conditions, as well as a statement included in his September 2011 VA Form 9, in which he reported being stricken with pneumonia during basic training, and experiencing difficulties with a chronic cough and breathing problems since that time. This statement is new, as it was not part of the record at the time of the prior final denial. Moreover, it is material, as it relates the previously unestablished fact of whether the Veteran had a lung condition during service. His statement of continuous symptoms since service is also material, as it potentially establishes a nexus between his current condition and his symptoms in service. As new and material evidence has been received, reopening the Veteran's previously denied claim for service connection for pulmonary fibrosis is appropriate. As the Veteran's claim is being reopened, it is necessary to consider whether the Veteran would be prejudiced in proceeding to a decision on the merits. However, as discussed above, the Veteran has received the requisite notice for establishing a service connection claim, and private treatment records identified as pertinent to his claim have been associated with the claims file. Furthermore, as discussed above and below, the evidence does not warrant remanding the claim for a VA examination and opinion. Therefore, the claim for service connection for a lung condition has been fully developed, and the Veteran will not be prejudiced as a result of the Board proceeding with a decision on that issue. III. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2013). For the showing of chronic disease in service, or within the presumptive period, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's private treatment records reflect diagnoses of pulmonary fibrosis, lung scleroderma, and interstitial lung disease. Therefore, element (1) of service connection, a current disability, has been satisfied. With respect to element (2), in-service incurrence of a disease or injury, the Veteran served in Vietnam, and therefore he is presumed to have been exposed to herbicides during service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6) (2013). However, none of the Veteran's diagnosed conditions are presumed by VA to be attributed to herbicide exposure. See 38 C.F.R. § 3.309(e). This alone does not preclude him from establishing his entitlement to service connection based on herbicide exposure, which can still be accomplished with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (indicating that even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established alternatively on a direct-incurrence basis by establishing the required causation). See also Stefl v. Nicholson, 21 Vet. App. 120 (2007); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange). However, a review of the claims file does not reflect any competent evidence linking the Veteran's current lung conditions to herbicide exposure. Other than herbicide exposure, the Board finds that the evidence does not reflect any other in-service event or disease to support a claim for service connection. Service treatment records are negative for any complaints, treatment, or diagnoses of a lung disease. The Veteran's December 1970 separation examination was within normal limits, and he denied a history of asthma, shortness of breath, chest pain, or cough. Similar findings were recorded in August 1973 and October 1975 reserve examinations. The Board has considered the Veteran September 2011 statement that he had pneumonia during basic training, and that he had experienced continuous symptoms of a chronic cough and breathing problems since that time. However, as discussed above, his contentions are not consistent with the available service treatment records, which show no such findings. In addition, when the Veteran initial March 2005 claim for benefits, he reported an onset date of 1983 for his lung disability. The Board finds these earlier records to be more probative in assessing the conditions and symptoms, or lack thereof, experienced by the Veteran during service. First, the service records were generated with a view towards ascertaining his then state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). In addition, those records were generated during his period of service, whereas his current statements regarding symptoms in service were generated many years later and are therefore less probative. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (contemporaneous medical findings may be given more probative weight). His recent statements regarding the onset of his condition conflict with the onset date listed in his initial claim for benefits. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record). For these reasons, the Veteran's most recent statements regarding the onset of his symptoms during service are not considered credible. Because the Veteran's current conditions are not the result of herbicide exposure, and because the overall weight of the evidence is against finding any in-service event, disease, or symptoms associated with the lungs, service connection for a lung disability is not warranted. ORDER The claim for service connection for pulmonary fibrosis is reopened; the appeal is granted to this extent only. Service connection for a lung disability, to include pulmonary fibrosis, is denied. REMAND With respect to the Veteran's claim for service connection for a bilateral hand disability, to include Raynaud's phenomenon, scleroderma, and ulcers, additional development is warranted. The Veteran has asserted that his condition is related to various chemical exposures he experienced during service. See September 2011 VA Form 9. His report of such exposure is generally consistent with his service as a general vehicle repairman. While his statements regarding this exposure are vague, it satisfies the relatively low threshold for whether obtaining a VA examination is warranted. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service). Therefore, a VA examination should be obtained to determine the nature and etiology of his current hand conditions, including whether they are etiologically related to any chemical exposure in service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral hand conditions. The claims file must be made available to the examiner, and the examiner must indicate in his/her report that the claims file was reviewed. The examiner must then answer the following questions: a) What currently diagnosed conditions are present in one or both of the hands? The examiner should include residuals, such as scarring, from previous skin conditions which may or may not be currently active. b) Is it at least as likely as not (50 percent or greater probability) that any of the current conditions are etiologically related to service, to include any chemical exposure in service? In making these determinations, the examiner should obtain a complete history from the Veteran, including a description of the types and nature of chemicals he claims to have been exposed to during service. Although the examiner must review the claims file, his/her attention is directed to the following: *Service examinations from December 1970, August 1973, and October 1975 were within normal limits, and the Veteran denied a history of any skin problems or arthritis. *Private treatment records dated January 1999 reflect a diagnosis of Raynaud's phenomenon. *Private treatment records dated June 2002 and February 2003 reflect findings of sclerodactyly and ulcers of the fingers, as well as diagnosis of scleroderma. A complete rationale for any opinion must be provided. If an opinion cannot be expressed without resorting to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to the need for further information, or because the limits of medical knowledge have been exhausted regarding the disability at issue, or because of another reason. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013). 3. After the requested development has been completed, readjudicate the merits of the Veteran's claim for service connection for a bilateral hand disability based on all the evidence of record, including any additional information and further development obtained as a result of this remand. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs