Citation Nr: 1742296	
Decision Date: 09/26/17    Archive Date: 10/04/17

DOCKET NO.  14-01 783	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether the previously denied service connection claim for sarcoidosis should be reconsidered.

2.  Entitlement to service connection for sarcoidosis.  


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse




ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The Veteran served on active duty from January 1971 to May 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In March 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

As will be discussed in more detail below, the Board has characterized that portion of the appeal previously characterized as a request to reopen the previously denied service connection claim for sarcoidosis as a request to reconsider the Veteran's previously denied service connection claim for sarcoidosis and as a de novo claim for service connection for sarcoidosis pursuant to 38 C.F.R. § 3.156(c) (as reflected on the title page).  


FINDINGS OF FACT

1. The RO denied the Veteran's claim for service connection for sarcoidosis in a February 2010 rating decision.  The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period.

2.  New evidence associated with the claims file since the February 2010 denial of the claim includes relevant official service department records not previously considered.

3.  The medical evidence of record shows that the Veteran's sarcoidosis manifested to a compensable degree within one year after discharge from active military service.


CONCLUSIONS OF LAW

1.  The February 2010 rating decision in which the RO denied the Veteran's service connection claim for sarcoidosis became final one year from the date of notification of the decision.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016).

2. As evidence received since the February 2010 denial includes relevant official service department records not previously considered, the criteria for reconsideration of the claim for service connection for sarcoidosis are met.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016).

3.  Sarcoidosis is presumed to have been incurred during active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309(a) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  


II.  Analysis

The Veteran asserts that his current diagnosis of sarcoidosis is related to active military service.  Specifically, he contends that the onset of this disease occurred during active military service.

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

Service connection may be granted on a presumptive basis for certain chronic diseases, including sarcoidosis, if they are shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active military service.  38 U.S.C.A. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307, 3.309(a) (2016).

A.  Reconsideration

In this case, the Veteran's service connection claim for sarcoidosis was initially denied in a February 2010 rating decision.  The evidence of record at the time consisted of the Veteran's lay statements and a copy of the Veteran's DD Form 214.  The claims file also contained a formal finding of unavailability of the Veteran's service treatment records dated in January 2010.  The RO informed the Veteran that they were unable to obtain copies of his service treatment records and asked him to provide them with any copies that he has in his possession in a February 2010 letter.  The Veteran was notified of the denial in a letter dated in February 2010, and he did not appeal this decision within one year of the date of the February 2010 letter.  Moreover, no additional evidence was received within the one-year appeal period following notification of the denial.  See 38 C.F.R. § 3.156(b). 

Typically, this fact would render the decision final as to the evidence then of record, and not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105 (b) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016).  Under such circumstances, VA could only reopen and review such claim if new and material evidence is submitted by or on behalf of the Veteran.  See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016).  However, 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, notwithstanding the requirement that new and material evidence must first be received.  38 C.F.R. § 3.156(c) (2016).  See also Kisor v. Shulkin, __ F.3d __, No. 2016-1929 (Fed. Cir. Sept. 7, 2017) (accepting VA's interpretation of the relevancy requirement of 38 C.F.R. § 3.156(c)).

In this case, a service treatment record dated in January 1971 and a service personnel record dated in January 1973 were associated with the claims file in June 2013 and February 2015, respectively.  The January 1971 service treatment record documents that the Veteran sought treatment for symptoms of a cold with heart ache.  He was diagnosed with sinus congestion.  The January 1973 service personnel record shows that he was discharged from the Army National Guard of Tennessee and Army Reserve due to physical disqualification.  These records are relevant to the Veteran's present claim on appeal, as they show that the Veteran received treatment for symptoms a respiratory condition during active military service and that he was discharged due to a physical disqualification.  In this case, the Veteran's service treatment record dated January 1971 and the personnel record dated in January 1973 existed at the time of the December 2010 rating decision, but were not associated with the claims file or considered by the RO at that time.

As, pursuant to 38 C.F.R. § 3.156(c), these additional service records received require reconsideration of the claim for service connection, which, effectively, renders the prior denial non-final.  Hence, there is no basis for analysis of the claim as a request to reopen under 38 C.F.R. § 3.156(a).


B.  Service Connection

As noted above, in order for the Veteran to be entitled to service connection for sarcoidosis, the medical evidence must show a current diagnosis of the claimed disability.  A January 2013 chest CT scan shows that the Veteran has right hilar adenopathy with chronic interstitial change.  The physician noted that this can be seen with stage III sarcoidosis.  Thus, private treatment records document that the Veteran has a current diagnosis of sarcoidosis.  

Furthermore, a letter from the Veteran's private physician dated in August 1972 reveals that he made a presumptive diagnosis of sarcoidosis in April 1972 based on the results of an April 1972 chest x-ray.  The Veteran was admitted to a private hospital in April 1972 and he was discharged in June 1972 with a definitive diagnosis of sarcoidosis after undergoing a bronchoscopy, supraclavicular node biopsy, and mediastinal biopsy via mediastinoscopy.  The letter also noted that the Veteran was treated with corticosteroids and Isoniazid.  A summary of the hospital treatment dated in August 1972 also reveals that the Veteran was diagnosed with sarcoidosis in April 1972 and that he was treated with corticosteroids in decreasing doses and Isoniazid daily.  Under Diagnostic Code 6846, a 30 percent disability rating for sarcoidosis is warranted where there is pulmonary involvement with persistent symptoms requiring chronic low does (maintenance) or intermittent corticosteroids.  

Based on the foregoing, the Board finds that the medical evidence of record reflects that the Veteran's sarcoidosis manifested to a compensable degree within one year after separation from service.  Entitlement to service connection for sarcoidosis is thus warranted on a presumptive basis.







ORDER

The request to reconsider the claim for service connection for sarcoidosis is granted.

Entitlement to service connection for sarcoidosis is granted.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs