Citation Nr: 1643641 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 12-06 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for residuals of hepatitis. 2. Whether new and material evidence has been presented to reopen a claim of service connection for bronchial asthma. 3. Entitlement to service connection for a lung disorder to include bronchial asthma and chronic obstructive pulmonary disease (COPD). 4. Entitlement to service connection for a back disorder to include as secondary to COPD. 5. Entitlement to service connection for a ventral hernia. 6. Entitlement to a compensable rating for residuals of appendectomy and oomphaticectomy (removal of congenital oomphatic diverticulum). 7. Entitlement to service connection for an internal cavity/intestine disorder as secondary to service-connected residuals of appendectomy and oomphaticectomy. 8. Service connection for a heart condition to include as secondary to the service-connected residuals of appendectomy and oomphaticectomy and/or conversion reaction/posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1941 to October 1945 and August 1949 to December 1952. The Veteran had subsequent service in the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in a May 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. 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). The issues of service connection for a lung disorder to include bronchial asthma and COPD; a back disorder to include as secondary to COPD; a ventral hernia; internal cavity/intestine disorder as secondary to service -connected residuals of appendectomy and oomphaticectomy, a heart condition to include as secondary to the service-connected residuals of appendectomy and oomphaticectomy and/or conversion reaction/PTSD; and entitlement to a compensable rating for residuals of appendectomy and oomphaticectomy; are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In March 1990, the RO denied service connection for hepatitis. The Veteran did not appeal. 2. Evidence submitted since the RO's March 1990 decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and therefore does not raise a reasonable possibility of substantiating the claim of service connection for hepatitis. 3. In January 2002, the RO denied service connection for bronchial asthma. The Veteran did not appeal. 4. Evidence submitted since the RO's January 2002 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim of service connection for a lung disorder including bronchial asthma. CONCLUSIONS OF LAW 1. The RO's March 1990 rating decision which denied service connection for hepatitis is final. 38 U.S.C.A. § 7105 (West 2014). 2. New and material evidence has not been received since the RO's March 1990 rating decision; thus, the claim of service connection for hepatitis is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The RO's January 2002 rating decision which denied service connection for bronchial asthma is final. 38 U.S.C.A. § 7105 (West 2014). 4. New and material evidence has been received since the RO's January 2002 rating decision; thus, the claim of service connection for a lung disorder to include bronchial asthma is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the 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. Here, the Veteran was provided with the relevant notice and information in a January 2009 letter sent prior to the initial adjudication of the claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With regard to claims to reopen finally disallowed claims, VAOPGCPREC 6-2014 concluded that the plain language of 38 U.S.C.A. § 5103(a)(1) does not require VA, upon receipt of a previously denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, which indicates that the directives of Kent v. Nicholson, 20 Vet. App. 1 (2006), are no longer controlling insofar as it construed the former § 5103(a) to require that VA provide case-specific notice to a claimant in a claim to reopen. Nonetheless, the pertinent letter satisfied Kent. The Veteran has not alleged any notice deficiency during the adjudication of the claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding the duty to assist, the RO has obtained the Veteran's pertinent medical records. In claims to reopen previously denied claims, assistance does not include providing a medical examination or obtaining a medical opinion unless new and material evidence has been submitted. 38 C.F.R. § 3.159(c)(4)(i). Therefore, no further examination seeking an opinion regarding the Veteran's hepatitis disability is necessary to satisfy the duty to assist. Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. With regard to the claim of whether new and material evidence has been received to reopen the claim of service connection for bronchial asthma, the Veteran's claim is being granted to the extent that it is reopened. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. New and Material Evidence In a March 1990 rating decision, service connection for hepatitis was denied on the basis that hepatitis was not shown on the Veteran's discharge examination or on a recent January 1990 VA examination. A notice of disagreement was not received within the subsequent one-year period. Further, additional pertinent evidence was not received within one year of that decision. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO's March 1990 rating decision is final. 38 U.S.C.A. § 7105. In January 2002, the Veteran denied service connection for bronchial asthma. In that rating decision, it was noted that service connection may be granted for a condition diagnosed after military discharge provided evidence establishes that the condition was caused by service or it is presumed by law to be service connected. If service connection is granted on the basis of a relationship to radiation exposure during military service, available evidence must demonstrate that the Veteran was exposed to radiation during the course of his service, and that a disease associated with such exposure resulted. The RO indicated that bronchial asthma was not a cancer associated with radiation exposure nor was it a radiogenic disease under VA regulations. A notice of disagreement was not received within the subsequent one-year period. Further, additional pertinent evidence was not received within one year of that decision. Bond. Therefore, the RO's January 2002 rating decision is final. 38 U.S.C.A. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (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). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Furthermore, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. The Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. With regard to the claim of service connection for hepatitis, no new and material evidence has been received since the Veteran has not submitted evidence of a current hepatitis diagnosis. Thus, there is not sufficient new and material evidence to warrant a reopening of the claim of service connection for hepatitis. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. With regard to the claim of service connection for bronchial asthma, evidence has been received which establishes the Veteran's exposure to ionizing radiation during service and as conceded by the RO. However, he does not have a diagnosis of a cancer recognized by VA to be due to radiation or a diagnosis of a recognized radiogenic disease. However, he has submitted evidence via VA and private records including those from Overlake Internal Medicine Associates which reflect current diagnoses of additional respiratory disorders including pneumonia, COPD, bronchiectasis, pseudomonas, and stenotrophomonas colonization. The Board notes what while evidence of a diagnosis of a cancer recognized by VA to be due to radiation or of a recognized radiogenic disease has not been submitted, the service treatment records include a May 1951 finding of postoperative atelectasis; thus it is unclear from the record whether there is a possible connection between a current diagnosis and service which could be substantiated under Shade via additional development. Thus, there is sufficient evidence to warrant a reopening of the claim based on the new and material, and the claim of service connection for a lung disorder including bronchial asthma is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. ORDER The application to reopen the claim of service connection for hepatitis is denied. The application to reopen the claim of service connection for a lung disorder to include bronchial asthma is granted. REMAND With regard to the remaining service connection issues on appeal, the Veteran was not afforded an examination and a medical opinion was not obtained. The Veteran's representative indicated that the Veteran is confined to a nursing home and cannot leave without assistance. It is unclear if he has assistance. He canceled his last examination because he felt that he was too old and wanted to withdraw his appeal; however, after he was provided information regarding the procedure for a withdrawal, he did not ultimately withdraw the appeal. In light of the foregoing, the Board finds that the Veteran should be afforded a VA examination if he can in fact attend an examination. In the event that he cannot attend an examination, a medical opinion should nonetheless be obtained. The Veteran may also submit medical/lay evidence in support of his claims. With regard to the increased rating claim, the Veteran's representative stated that the examination was inadequate because a complete assessment of the scarring which included a pain evaluation was not undertaken. Again, if the Veteran is able to be examined, an examination should be undertaken and, if not and even if he can attend, he is invited to submit supporting medical and/or lay evidence. Also, the Veteran has asserted that he has gastrointestinal symptoms in conjunction with his claim for an increased rating for residuals of appendectomy and oomphaticectomy (removal of congenital oomphatic diverticulum) as well as a claim for internal cavity/intestine disorder as secondary to service-connected residuals of appendectomy and oomphaticectomy. The Board finds that these matters are intertwined. The examiner (or private examiner if the Veteran chooses to submit private medical evidence) should indicate if the Veteran's service-connected disability is productive of gastrointestinal complaints or has resulted in/aggravated a separate internal cavity/intestine/gastrointestinal disorder. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with an updated VCAA letter. He should be notified that he may submit supporting medical and lay evidence. 2. Schedule the Veteran for a VA examination. In the event that he cannot attend an examination, a VA medical opinion should nonetheless be obtained as to the inquiries below. Any indicated tests should be accomplished. The examiner should review the record prior to examination/opinion. A. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current lung disorder to specifically include bronchial asthma, pneumonia, COPD, bronchiectasis, pseudomonas, and stenotrophomonas colonization, had its clinical onset during service or is related to any in-service disease, event, or injury, to specifically include the May 1951 inservice notation of postoperative atelectasis. B. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current low back disorder had its clinical onset during service or is related to any in-service disease, event, or injury. If arthritis is present, the examiner should opine as to whether it was manifest during the one year presumptive period following service. The examiner should also indicate whether it is more likely than not, less likely than not, or at least as likely as not, that any current low back disability is proximately due to, or the result of, a lung disorder. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current low back disability is permanently aggravated by a lung disorder. C. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's ventral hernia and any residuals had its clinical onset during service or is related to any in-service disease, event, or injury. D. With regard to service-connected residuals of appendectomy and oomphaticectomy, the examination should be performed in accordance with the appropriate Disability Benefits Questionnaires. The DBQs should be filled out completely as relevant. All findings, conclusions, and opinions must be supported by a clear rationale. The Veteran's residual scarring, as well as internal cavity/intestine/gastrointestinal symptoms should be addressed. The examiner should determine if any identified current internal cavity/intestine/gastrointestinal symptoms are manifestations of the appendectomy and oomphaticectomy. If they are not manifestations of the appendectomy and oomphaticectomy, the examiner should answer the following inquiries: whether it is more likely than not, less likely than not, or at least as likely as not, that any current internal cavity/intestine/gastrointestinal disability is proximately due to, or the result of, the service-connected residuals of appendectomy and oomphaticectomy. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current internal cavity/intestine/gastrointestinal disability is permanently aggravated by the Veteran's service-connected appendectomy and oomphaticectomy. E. With regard to claimed heart disability, the examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's heart disability had its clinical onset during service, within the presumptive period following service, or is related to any in-service disease, event, or injury. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current heart disability is proximately due to, or the result of, the service-connected residuals of appendectomy and oomphaticectomy and/or his conversion reaction/PTSD. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current heart disability is permanently aggravated by the Veteran's service-connected appendectomy and oomphaticectomy and/or his conversion reaction/PTSD. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 3. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran 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). (Continued on the next page) 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs