Citation Nr: 1508883 Decision Date: 03/02/15 Archive Date: 03/17/15 DOCKET NO. 14-18 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disorder and bronchitis. 2. Entitlement to service connection for residuals of a right hand injury. 3. Entitlement to service connection for blacking out. 4. Entitlement to service connection for an ear disability, including tinnitus. 5. Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, the claim of entitlement to service connection for a back disability. 6. Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, the claim of entitlement to service connection for a neck disability. 7. Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, the claim of entitlement to service connection for a right leg disability. 8. Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, the claim of entitlement to service connection for a right thumb disability. 9. Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, the claim of entitlement to service connection for an eye disability. 10. Entitlement to an initial evaluation in excess of 10 percent for residuals of traumatic brain injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from February 1955 to February 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. For the sake of clarity, the Board has recharacterized the Veteran's claim seeking service connection for "air in ears" to include his complaints of tinnitus. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014). The Board's decision below has denied the Veteran's claim seeking entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disorder (COPD) and bronchitis. The Board has also determined that reconsideration of the Veteran's claims of entitlement to service connection for back, neck, right leg, right thumb, and eye disabilities is required. Accordingly, the issues to be reconsidered, as well as the other remaining issues on appeal are addressed in the Remand portion of the decision below. FINDINGS OF FACT 1. The Veteran's current respiratory disorders, including COPD and bronchitis, are not related to his military service. 2. In June 1958, the Board issued a decision which denied the Veteran's original claims seeking service connection for right leg, right thumb, and eye disabilities. 3. In March 2004, the RO issued a rating decision which denied the Veteran's original claims seeking service connection for back and neck disabilities. The Veteran did not perfect an appeal of these issues, and the decision is now final. 4. Since the March 2004 rating decision, additional service treatment records were associated with the claims file by the RO. These records existed at the time of the Board's June 1958 decision and the RO's March 2004 rating decision, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, including COPD and bronchitis, have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014). 2. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a back disability have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(c) (2014). 3. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a neck disability have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(c) (2014). 4. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a right leg disability have been met. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156(c) (2014). 5. The criteria for reconsidering the Veteran's claim of entitlement to service connection for a right thumb disability have been met. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156(c) (2014). 6. The criteria for reconsidering the Veteran's claim of entitlement to service connection for an eye disability have been met. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156(c) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). The RO's July 2009 letter advised the Veteran of the elements of VA's notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). It provided the Veteran with the criteria to reopen his new and material claims and the criteria for establishing service connection for all of his claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the RO satisfied the notice requirements with respect to the adjudicated herein. As for his new and material claims, the Board's decision below has determined that a reconsideration of these issues on the merits is required. Given the favorable outcome below, no conceivable prejudice to the Veteran could result from the decision to reconsider. See Bernard v. Brown, 4 Vet. App. 384 (1993). The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's available service treatment records and all identified post-service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As for the Veteran's claim seeking service connection for a respiratory disorder, his service treatment records are completely silent as to any treatment or complaints of a respiratory disorder. His December 1956 separation examination noted that his lungs and chest were normal. A post service physical examination report, performed in April 1957, noted that his lung fields were clear to percussion and auscultation. Following his separation from service, the first post service complaint or diagnosis of a respiratory disorder was in September 1986, over 29 years after the Veteran's separation from service. Under these circumstances, the evidence does not suggest a link between any current respiratory disorder and the Veteran's military service. Accordingly, an examination is not required to adjudicate this issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that additional evidence relevant to the issues being addressed is available and not already part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. II. Service Connection for a Respiratory Disorder The Veteran is seeking service connection for a respiratory disorder, including COPD and bronchitis. In a May 2010 statement, the Veteran indicated that he caught COPD while digging out a bunker in early 1956 at Fort Sill, Oklahoma. He reported that he developed a cold at that time, and that it has never resolved. Service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran served on active duty in the Army from February 1955 to February 1957. His report of separation listed his inservice specialty as crewman. It also indicated that he had no foreign or sea service. The Veteran's service treatment records are completely silent as to any treatment or complaints of a respiratory disorder. His December 1956 separation examination noted that his lungs and chest were normal. A post service physical examination, performed in April 1957, noted that his lung fields were clear to percussion and auscultation. Following his separation from service, the first post service complaint or diagnosis of a respiratory disorder was in September 1986, over 29 years after the Veteran's separation from service. He was diagnosed with COPD at that time. He was subsequently diagnosed with bronchitis in March 2012. Initially, the Board finds that Veteran's contentions are competent evidence to relate a history of having symptoms of a cold. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for a respiratory disorder. The Veteran's service treatment records do not show any complaints of a respiratory disorder during service. His December 1956 separation examination noted that his lungs and chest were normal. A post service physical examination report, dated in April 1957, noted that his lung fields were clear to percussion and auscultation. Following his separation from service, the first post service reference to or diagnosis of a respiratory disorder was COPD in September 1986, over 29 years after the Veteran's discharge from military service. Over 15 years later, a March 2012 treatment report noted a diagnosis of bronchitis. The Veteran as a layperson has not been shown to have medical training; thus, his statements regarding the causation of a current respiratory disorder are not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the lack of any reference to a respiratory disorder in his service treatment records or his post service treatment records for 29 years thereafter, as well as the normal findings on his December 1956 separation examination and his April 1957 post service physical examination, the Board finds no probative value in the Veteran's contention of having an ongoing cold since his military service. Moreover, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a), which does not include COPD or bronchitis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, the preponderance of the evidence is against the Veteran's claim. As there is no doubt to be resolved, service connection for a respiratory disorder is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Claims to Reopen In July 1957, the RO issued a rating decision that denied the Veteran's original claims seeking service connection for right leg, right thumb, and eye disabilities. Following submission of additional evidence, the RO issued a rating decision in February 1958 that confirmed its early denial of these issues. Thereafter, the Veteran timely appealed this decision. In June 1958, the Board issued a decision that denied the Veteran's original claims seeking service connection for right leg, right thumb, and eye disabilities. This decision is final. 38 U.S.C.A. § 7104. In March 2004, the RO issued a rating decision that denied the Veteran's original claims seeking service connection for back and neck disabilities. Notice of the RO's March 2004 rating decision was sent to the Veteran that same month. He did not file a timely notice of disagreement with this decision, and it is final. See 38 C.F.R. § 20.201 (2013). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); 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 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). In addition to new and material evidence, 38 C.F.R. § 3.156(c) provides that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Further, 38 C.F.R. § 3.156(c)(i)(3) provides that an award made based all or in part on these records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. After reviewing the Veteran's claims file, the Board concludes that additional service treatment records, pertinent to the Veteran's claims seeking service connection for back, neck, right leg, eye, and right thumb disabilities, were received after the Board's June 1958 decision and the RO's March 2004 rating decision. The Veteran's electronic claims file indicates that the service treatment records at issue were received on July 30, 2014. While the receipt date for these service treatment records may have been entered in error, the evidence indicates they were received some time after the Board's June 1958 decision and the RO's March 2004 rating decision. Specifically, a November 2003 letter to the Veteran, from the RO, requested his assistance in locating his service treatment records. Thereafter, the March 2004 rating decision stated that the Veteran's service treatment records were "completely negative for any complaints, treatment, findings or diagnosis" of a back or neck disability. However, the service treatment records at issue, marked received on July 30, 2014, document inservice complaints of back pain in February 1955 and May 1955, and inservice complaints of stiffness in the right side of his neck in head in August 1956. The newly received service treatment records are pertinent to the issues of whether service connection is warranted for back, neck, right leg, eye, and right thumb disabilities. These records existed at the time of the Board's June 1958 decision and the RO's March 2004 rating decision; and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. Accordingly, reconsideration of the claims seeking entitlement to service consideration for back, neck, right leg, eye, and right thumb disabilities, is warranted. 38 C.F.R. § 3.156(c). ORDER Service connection for a respiratory disorder, including COPD and bronchitis, is denied. Reconsideration of the Veteran's original claim seeking service connection for a back disability is warranted. Reconsideration of the Veteran's original claim seeking service connection for a neck disability is warranted. Reconsideration of the Veteran's original claim seeking service connection for a right leg disability is warranted. Reconsideration of the Veteran's original claim seeking service connection for a right thumb disability is warranted. Reconsideration of the Veteran's original claim seeking service connection for an eye disability is warranted. REMAND The Veteran is seeking service connection for residuals of a right hand injury; blacking out; an ear disability, including tinnitus; a back disability; a neck disability; a right leg disability; a right thumb disability; and an eye disability. He is also seeking an increased evaluation for residuals of traumatic brain injury. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Given the receipt of additional pertinent service department records, the RO must reconsider, in accordance with 38 C.F.R. § 3.156(c), the Veteran's original claims seeking entitlement to service connection for a back disability; a neck disability; a right leg disability; a right thumb disability; and an eye disability. The Veteran's claim seeking service connection for residuals of a right hand injury arises from the same inservice injury which he claims resulted in his right thumb disability. Given the overlapping nature of these claims, the Board finds these two claims to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Veteran has claimed service connection for an ear disability, including tinnitus. A review of his service treatment records revealed complaints of tinnitus in July 1956. The evidence of record also includes the Veteran's current complaints of tinnitus. Specifically, he reported complaints of tinnitus in a May 2010 statement, and his complaints of tinnitus were noted during his March 2014 VA examination for residuals of traumatic brain injury. Under these circumstances, the RO must schedule the Veteran for an audiological examination to determine the nature of any current ear disorder, including tinnitus, and the examiner must address the issue of whether any current ear disability, including tinnitus, is related to his military service. In its August 2014 Informal Hearing Presentation, the Veteran's representative persuasively argued that the most recent VA examination for residuals of traumatic brain injury, performed in March 2014, is inadequate. Specifically, the examiner failed to adequately address the etiology of the Veteran's cognitive decline/dementia secondary to global cerebral atrophy. On this point, the Veteran's representative submitted an internet article indicated that a traumatic brain injury is a known cause of cerebral atrophy. In addition, the Veteran has claimed service connection for blackouts, which the RO denied as a symptom, not a disability. Although the Veteran reported having blackouts during the March 2014 examination, the examiner failed to address whether these blackouts are a symptom related to his service-connected residuals of a traumatic brain injury. Under these circumstances, the examiner should be asked to clarify the nature of the Veteran's blackout complaints, and opine as to whether they are related to his service-connected residuals of traumatic brain injury. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include all VA and non-VA medical providers who have treated him since his discharge from the service. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must then be afforded the appropriate examination(s) to determine whether any current ear disability, including tinnitus, is related to his military service. The Veteran's claims file must be made available to the examiner. After a review of the entire evidence of record, the examiner must render an opinion, in light of the service and post service evidence of record, as to: (a) whether any identified ear disability, including tinnitus, began as a result of his military service, including his inservice traumatic brain injury. The Veteran's lay statements, the objective medical findings in the service medical records, and any other pertinent clinical findings of record, must be taken into account. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran must also be afforded the appropriate examination(s) to determine the severity of his service-connected residuals of traumatic brain injury. The claims file and all pertinent electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings required to properly rate this disability must be reported in detail. Moreover, the examiner must express an opinion on the following: (a) whether the Veteran's current cerebral atrophy is related to his service-connected traumatic brain injury or his military service; (b) whether the Veteran's current complaints of blackouts are related to his service-connected traumatic brain injury or his military service; and (c) whether the Veteran's current complaints of tinnitus are related to his service-connected traumatic brain injury or his military service. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issues of entitlement to service connection for residuals of a right hand injury; entitlement to service connection for blacking out; and entitlement to service connection for an ear disability, including tinnitus; and entitlement to an initial evaluation in excess of 10 percent for residuals of traumatic brain injury must be reajudicated. In addition, the issues of entitlement to service connection for a back disability; entitlement to service connection for a neck disability; entitlement to service connection for a right leg disability; entitlement to service connection for a right thumb disability; and entitlement to service connection for an eye disability must be reconsidered in accordance with 38 C.F.R. § 3.156(c). If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. This appeal has been advanced on the Board's docket. 38 C.F.R. § 20.900(c) (2014). Expedited handling is required. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs