Citation Nr: 1604443 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 11-17 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for asthma. 2. Entitlement to service connection for a respiratory condition, to include bronchial asthma and chronic obstructive pulmonary disorder (COPD). ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1961 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied reopening of the claim of service connection for asthma. During the pendency of the appeal, the Veteran appointed an attorney as his representative. However, in July 2015, the Veteran revoked the attorney as his representative. To date, the Veteran has not submitted documentation appointing a new representative; as such, the Board considers the Veteran to be unrepresented. This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The issue of service connection for a respiratory condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a March 1975 rating decision, the RO denied service connection for asthma. The Veteran did not initiate an appeal to this decision. 2. Additional evidence received since the March 1975 rating decision on the issue of service connection for asthma is neither cumulative nor redundant, addresses the grounds of the prior final denial of service connection, and raises a reasonably possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1975 rating decision is final. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for asthma. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The appeal of whether new and material evidence has been received to reopen the claim of service connection for asthma has been considered with respect to VA's duties to notify and assist. Given the favorable outcome with respect to this issue, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). New and Material Evidence - Laws and Regulations Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components; first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. Evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Reopening of Service Connection for Asthma - Analysis In the current claim on appeal, the Veteran seeks to reopen service connection for asthma. In a March 1975 rating decision, the RO denied service connection for asthma. The RO found that the Veteran's asthma preexisted his active service and was not aggravated by such service. The Veteran did not initiate an appeal as to the March 1975 rating decision; therefore, the March 1975 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. According to a March 2008 correspondence to the Veteran, the Veteran was informed of the denial of service connection in a notification letter dated March 10, 1975. The March 1975 notification letter, however, is not contained in the electronic claims file. The United States Court of Appeals for Veterans Claims (Court) has held that there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity of VA's administrative process. See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). In this case, the presumption of regularity indicates that the RO would have properly notified the Veteran following the March 1975 rating decision. There is no clear evidence that the Veteran was not notified of the denial of service connection, and in fact, there has been no contention that he was never notified of the March 1975 rating decision. Accordingly, the Board finds that the presumption of regularity has not been rebutted in finding that the Veteran was properly notified of the March 1975 denial of service connection. In May 2008, the Veteran requested reopening of a claim of service connection for asthma. Since the last final disallowance of the claim in March 1975, evidence that has been associated with the claims file includes private treatment records, a July 2008 statement from the Veteran's private physician, and lay statements from the Veteran. Collectively, the private treatment records document a current diagnosis of a respiratory condition. In a July 2008 statement, the Veteran's private physician indicated that the Veteran "initially developed pulmonary symptoms during basic training" and since "has had recurrent bouts of asthma and later has developed what is now COPD." The private physician further opined that "it is at least as likely as not that his incurred service condition (asthma) is partially responsible for his current illness." Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence has been received to reopen service connection for asthma. The recent private treatment records documenting a current respiratory diagnosis are new, in that they were not of record at the time of the prior final denial. However, evidence of a current respiratory diagnosis was of record at the time of the prior final denial; therefore, the recent private treatment records are cumulative and redundant. In contrast, the private physician's July 2008 statement regarding an in-service incurrence is new and neither cumulative nor redundant of evidence already of record at the time of the last final disallowance. The newly submitted evidence is also material because it relates to unestablished facts that are necessary to substantiate the claim. The private physician's July 2008 statement provides evidence that the Veteran's respiratory condition began during service and has continued since service separation. This evidence addresses the basis for the prior denial; that is, that the Veteran's current respiratory disorder was incurred in service. Regarding the newly submitted evidence, the Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold" which "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." Shade, 24 Vet. App. at 117-18. Given this standard, and presuming the credibility of the evidence, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for asthma. For these reasons, the Board finds that the additional evidence received since the March 1975 decision is new and material to reopen service connection for asthma. ORDER New and material evidence having been received, the appeal to reopen service connection for asthma is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for a respiratory condition. See 38 C.F.R. § 19.9 (2015). VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2015); 38 C.F.R. § 3.159(c), (d) (2015). In the present case, a VA examination was scheduled to occur in March 2011, but the Veteran did not report for the examination. See 38 C.F.R. § 3.655(b) (indicating that if a veteran does not appear at a scheduled VA examination and does not present evidence of good cause, VA may proceed with adjudication of the claim on the basis of the evidence of record). However, in an April 2011 statement, the Veteran indicated that the examination notification letter was sent to an incorrect address, and requested that the VA examination be rescheduled. See also June 2011 Substantive Appeal (VA Form 9). While the claims file does not contain evidence that the examination notification letter was returned as undeliverable, there is evidence that the April 2011 Statement of the Case was returned as undeliverable. As such, the Board finds the Veteran's contention that he did not receive notice of the March 2011 VA examination is credible. For this reason, the Board finds that good cause has been shown for the Veteran's absence at the VA examination, and as such, the AOJ should reschedule the VA examination. See 38 C.F.R. § 3.655(a). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should reschedule the Veteran for a VA pulmonary examination to assist in determining the nature and etiology of the Veteran's current respiratory disability. The entire claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. All appropriate tests, studies, and consultation, including any pertinent diagnostic studies, should be accomplished and all clinical findings should be reported in detail. Based upon a review of the relevant evidence of record, history provided by the Veteran, physical examination, and sound medical principles, the VA examiner should offer the following opinions: a. Did the Veteran's current respiratory disability clearly and unmistakably preexist service? Clear and unmistakable evidence is evidence that is obvious, manifest, and undebatable, which is a very high likelihood. b. If the respiratory disability preexisted service, was the respiratory disability clearly and unmistakably not aggravated by the Veteran's service? The term "aggravated" in this context refers to a permanent worsening of the underlying condition beyond the natural progress of the disease, as contrasted to temporary or intermittent flare-ups of symptomatology that resolve with a return to the baseline level of disability. If it is the examiner's opinion that there is no clear and unmistakable evidence that the respiratory disability either preexisted service or was not aggravated by service, the Veteran is presumed sound at service entrance, and the question becomes one of whether the respiratory disability is directly related to service. In this case, the examiner is requested to provide the following opinion: Is it at least as likely as not (a 50 percent probability or higher) that the Veteran's respiratory disability had its onset during service, or is otherwise related to active service? 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. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. If the Veteran fails to report for the scheduled examination, the AOJ should obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 2. After completion of the above and compliance with the requested actions has been ensured, readjudicate the issue on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran 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 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 2014). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs