Citation Nr: 1610294 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 13-28 595A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to an effective date prior to February 2, 2012 for an award of service connection for asbestosis and lung cancer, status post left upper lobectomy. 3. Entitlement to an effective date prior to February 2, 2012 for an award of service connection for left upper lobectomy scars. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1971 to January 1972, and had more than 18 years of prior service, including from November 1952 to December 1956. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. [Although the RO implicitly reopened the claim of service connection for COPD (by considering it on the merits), as there was a prior final denial of the claim the Board must address whether new and material evidence to reopen the claim has been received to establish its jurisdiction to review the merits of the claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The issue is characterized accordingly.] This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. An unappealed October 2009 rating decision denied the Veteran service connection for COPD, based essentially on a finding that such disability was not shown to be related to service. 2. Evidence received since the October 2009 rating decision tends to show the Veteran's COPD may be related to his service or a service connected disability; relates to an unestablished fact necessary to substantiate the claim of service connection for such disability; and raises a reasonable possibility of substantiating the claim. 3. The Veteran's exposure to asbestos in service is reasonably shown to be an etiological factor for his development of COPD. 4. The Veteran's initial claim seeking service connection for lung cancer was received by VA on February 2, 2012. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for COPD may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 2. On de novo review service connection for COPD is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 3. An effective date prior to February 2, 2012 for the award of service connection for asbestosis and lung cancer and for left upper lobectomy residuals scars is not warranted. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.400(b)(2) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). By correspondence dated in February and March 2012, VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. The March 2012 letter also complied with the requirements set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006) regarding notice in claims to reopen. It is not alleged that notice was less than adequate. The appeal regarding effective dates is from the date assigned with the award of service connection. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). A statement of the case properly provided notice on the downstream issue of entitlement to an earlier effective date. The Veteran's service treatment records (STRs) are associated with the record and pertinent VA and private medical records have been secured. The Veteran was afforded a VA examination. He has not identified any evidence pertinent in these matters that remains outstanding. VA's duty to assist is met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that a RO official or VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the January 2016 hearing, the undersigned identified the issues, and advised the Veteran of what remains necessary to substantiate his claims, to include competent evidence of a nexus between COPD and the service. He was advised that an opinion by a medical professional to that effect would constitute competent evidence. Regarding the claims for an earlier effective date, he was notified that he would have to show he filed a claim prior to February 2, 2012. A deficiency in the conduct of the hearing is not alleged. Legal Criteria, Factual Background and Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's STRs show that in November 1955, a sick call treatment record noted he had had difficulty breathing for six months. In August 1963, he was treated for a non-productive cough and prescribed cough syrup. He was treated for pneumonia in January 1964. On the December 1971 retirement examination, the lungs and chest were normal, and a chest X-ray was within normal limits. In December 2005, the Veteran was seen in a service department facility for complaints of shortness of breath. The assessment was COPD exacerbation. In January 2006, it was noted he had a 120 pack year history of smoking. He had recently been admitted to the hospital for acute shortness of breath. The assessment was COPD. A pulmonary function test that month showed an obstructive ventilatory impairment. In May 2006, the Veteran stated he had stopped smoking that year. He denied having any breathing problems prior to his hospitalization early that year. An unappealed October 2009 rating decision denied the Veteran service connection for COPD on the basis that it was not shown to be related to service. It was noted that COPD was not due to exposure to radiation or asbestos. He was notified of that determination, and did not appeal it. An August 2011 private CT of the Veteran's thorax revealed a left upper lobe mass, and he underwent a left upper lobectomy in September 2011. The pathology report notes that adenocarcinoma was diagnosed. The Veteran's initial claim for service connection for lung cancer due to asbestos exposure was received on February 2, 2012. On August 2012 VA respiratory examination, the examiner noted that she reviewed the record. She stated the Veteran had a long history of cigarette smoking, and that he had smoked 2 packs a day for 55-60 years. She noted he had COPD diagnosed in "2002," and the Veteran dated the onset of his respiratory symptoms with that diagnosis. She concluded that the Veteran's asbestosis was at least as likely as not related to his exposure to asbestos in service. She noted that his long history of cigarette smoking is the most likely cause of his chronic obstructive lung disease of the emphysematous type. She added that it is well documented in medical literature that cigarette smoking is the most common cause of this type of COPD. She could find no evidence in the medical literature that asbestos exposure causes this type of COPD. She concluded, therefore, that it was less likely than not that the Veteran's COPD is related to his asbestos exposure. In September 2012, the RO granted service connection for asbestosis and lung cancer, status post left upper lobectomy; painful scar, status post left upper lobectomy; and residual scar, status post left upper lobectomy. On August 2015 VA respiratory examination, the diagnoses included COPD, secondary to smoking and to exposure to asbestos.. New and material evidence COPD When there has been a final rating decision denying a claim of service connection, such claim may not be reopened and allowed on the same factual basis. 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured with respect to each such claim, VA shall reopen the claim and consider it de novo. 38 U.S.C.A. § 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). The Court has held, in essence, that the requirement of additional evidence raising a reasonable possibility of substantiating the claim is a "low threshold" requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As the October 2009 rating decision denied service connection for COPD essentially based on a finding that such disability was unrelated to the Veteran's service for evidence received since then to pertain to the unestablished fact necessary to substantiate the claim, it would have to be evidence that tends to relate the COPD to service or to a service connected disability. The evidence received since the October 2009 rating decision includes VA, private and service department medical records, as well as the reports of two VA respiratory examinations. Following the August 2015 VA examination, the examiner opined that the Veteran's COPD is secondary to smoking and [emphasis added] asbestos exposure. This evidence suggests a link between the Veteran's acknowledged exposure to asbestos during service and his COPD and raises a reasonable possibility of substantiating the claim. Accordingly, the additional evidence is both new and material, and the claim of service connection for COPD may be reopened. The Board's analysis proceeds to de novo consideration of the claim. The Board finds that the Veteran is not prejudiced by the Board so proceeding since the RO has already reopened the claim (and considered it de novo) and in light of the disposition below. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). On the most recent (August 2015) VA examination, the provider (a physician who presumably has the requisite expertise for determining the likely etiology of a disease such as COPD opined that the factors for the Veteran's development of COPD included both his smoking (which under governing law is not a legal basis for finding service connection) and his acknowledged exposure to asbestos in service -which is. The Board finds no reason to question that opinion, and finds it probative and persuasive. Accordingly, the Board finds that the evidence reasonably supports the Veteran's claim, and that service connection for COPD is warranted. Earlier effective date-service connection Except as otherwise provided, the effective date of an evaluation and award of service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later (emphasis added). 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155. The Veteran's first claim seeking service connection for carcinoma of the lung was received on February 2, 2012. He was awarded service connection for asbestosis and lung cancer, and for 2 lobectomy scars (one determined to be painful) all effective February 2, 2012. The record does not show that he filed a claim seeking service connection for lung cancer or asbestosis prior to February 2, 2012. [He had filed a prior claim of service connection for COPD which was denied by an unappealed rating decision.] While the record includes a VA Form 21-4138, Statement in Support of Claim, which is dated May 11, 2011, that record was not received by VA until October 2012. Significantly, during the hearing before the undersigned, the Veteran acknowledged that he had not filed a claim of service connection for lung cancer and asbestosis, and secondary disabilities prior to February 2, 2012. With certain exceptions (none here applicable) the governing law and regulations (outlined above) provide for awarding service connection for a disability prior to the date on which the claim of service connection for the disability is received. The law is clearly dispositive in this matter. Accordingly, the appeal in the matter must be denied See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal to reopen a claim of service connection for COPD is granted, and service connection for COPD is granted on de novo review. The appeals seeking an effective date prior to February 2, 2012 for the award of service connection for asbestosis and lung cancer, and 2 lobectomy scars are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs