Citation Nr: 1743535	
Decision Date: 09/29/17    Archive Date: 10/10/17

DOCKET NO.  13-33 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bronchitis, also claimed as a lung condition.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Morrad, Associate Counsel 






INTRODUCTION

The appellant served on active duty for training (ACDUTRA) from November 1974 to January 1975. 
 
This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

The Board notes that in his June 2013 Form 9, the appellant requested a hearing with an Indianapolis RO hearing official.  The record reflects that a hearing was scheduled to take place in February 2016, but the appellant failed to appear.  The appellant's hearing was rescheduled for March 2016, and the appellant again failed to appear.  There is no indication that the appellant requested to reschedule the second hearing. Accordingly, the Board considers the request for a hearing as withdrawn, and it may proceed to adjudicate the appellant's claim.  38 C.F.R. 
§ 20.704(d). 


FINDINGS OF FACT

1.  In an unappealed September 1983 rating decision, the RO denied the appellant's claim of entitlement to service connection for bronchitis because the evidence failed to demonstrate that the preexisting disability had been aggravated during the appellant's short term of service.  The appellant was notified of the decision that same month and did not initiate an appeal.

2.  The additional evidence associated with the claims file following the September 1983 rating decision does not relate to an unestablished fact necessary to substantiate the appellant's claim of entitlement to service connection for bronchitis, nor does it otherwise raise a reasonable possibility of substantiating the appellant's claim. 

3.  Service department records that were associated with the appellant's claims file since the September 1983 rating decision are not relevant to the claim for service connection for bronchitis.


CONCLUSIONS OF LAW

1.  The September 1983 rating decision, which denied the appellant's claim for service connection for bronchitis, became final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2016). 

2.  The additional evidence received since the September 1983 rating decision is not new and material, and the claim of entitlement to service connection for bronchitis is not reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

VA's duty to notify was satisfied by letter dated in April 2011.  See 38 U.S.C.A. 
§§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the appellant's claim.  See 38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  Service treatment records, in addition to private medical treatment records, have been associated with the record. 

In claims involving the question of whether new and material evidence has been received, the duty to assist a claimant by obtaining a medical opinion does not arise until the claimant has submitted new and material evidence sufficient to reopen the claim.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007) (holding that in the absence of new and material evidence, VA is not required to provide a medical examination or obtain a medical opinion to a claimant attempting to reopen a previously-disallowed claim).  As will be explained further below, the appellant has not submitted new and material evidence sufficient to reopen his claim for service connection for bronchitis, and therefore, there is no duty to provide a VA examination or to obtain a medical opinion regarding his claimed bronchitis disability.  See Woehlaert, 21 Vet. App. at 463.

As the appellant has not identified any additional relevant evidence concerning his claim, and there is otherwise no indication of outstanding pertinent evidence to obtain, the Board concludes that no further assistance to the appellant in developing the facts pertinent to his claim is required for VA to comply with its duty to assist. 

 II. Claim to Reopen

To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim.  38 U.S.C.A. § 5108. "New evidence" means existing evidence not previously submitted to VA.  38 C.F.R. § 3.156(a).  "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.  Id.  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, and it must raise a reasonable possibility of substantiating the claim.  Id.  

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). 
The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and it views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).  Evidence "raises a reasonable possibility of substantiating the claim" if it would trigger VA's duty to provide an examination in adjudicating a non-final claim.  See Shade, 24 Vet. App. at 120-23. 

Additionally, where 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 pursuant to 38 C.F.R. § 3.156(c), provided that such records include service records that are related to the claimed in-service event, injury, or disease.

In the instant case, the RO denied the appellant's original claim for service connection for bronchitis in September 1983.  In pertinent part, the RO denied the appellant's claim based on a finding that the appellant had preexisting chronic bronchitis with no aggravation by service.  

The appellant was notified of the rating decision in a September 1983 letter.  As the appellant never initiated an appeal of the September 1983 rating decision, or submitted additional evidence in support of the service connection claim within one year of the September 1983 rating decision, it became final.  See 38 U.S.C.A. 
§ 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103. 

At the time of the September 1983 rating decision denying the appellant's claim, the evidence, in pertinent part, consisted of service treatment records dated from August 1974 to November 1974; service treatment records dated from November 1974 to January 1975; S. Jordan's January 1983 lay statement; and the appellant's lay statements, as set forth in his January 1983 claim for service connection.  The service treatment records indicate that the appellant complained of shortness of breath and chest pain in November 1974.  A December 1974 chest x-ray was normal.  Then, in January 1975, the appellant was diagnosed with chronic bronchitis with restrictive lung disease.  S. Jordan's January 1983 lay statement indicates the appellant fell ill while marching in December 1974 and was hospitalized for said illness.  

Additional evidence added to the claims file since the September 1983 rating decision includes service treatment records dated from August 1974 through January 1975; the appellant's September 2010 statement in support of his claim; private treatment records from Neurosurgical Clinic of Bloomington dated from July 2010 to October 2010; private treatment records from Horizon WP dated from July 2010 to September 2010; and S. Jordan's February 2013 lay statement. 

The Board concludes that the additional evidence received since the September 1983 rating decision is not new and material.  38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. at 120-23.  

The appellant re-submitted service treatment records dated November 1974 to January 1975, and an August 1974 enlistment medical examination, all of which were already part of the record at the time of the prior final denial.  See service treatment records dated November 1974 through January 1975.  Because these records are cumulative and redundant and because the evidence is not related to unestablished facts necessary to substantiate the appellant's claim, the Board finds the evidence is not new and material.  38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. at 120-23.  Additionally, 38 C.F.R. § 3.156(c) does not apply because the service treatment records were previously associated with the claims file.  As such, there is no basis for reconsideration pursuant to 38 C.F.R. § 3.156(c). 

Newly obtained evidence includes a post-service March 1977 x-ray of the appellant's chest showing some interstitial changes in the left lung thought to be interstitial pneumonia.  Although this evidence is new, it is not related to an unestablished fact necessary to substantiate the appellant's claim, namely evidence that the appellant had an aggravation of his preexisting bronchitis during service.  As such, is not new and material evidence.  38 C.F.R. § 3.156(a).   

Newly obtained evidence from Neurosurgical Clinic of Bloomington, dated July 2010 to October 2010, and Horizon WP, dated July 2010 to September 2010, relates to impairments unrelated to the appellant's chronic bronchitis claim.  Because it does not raise a reasonable possibility of substantiating the appellant's claim on appeal, it is not new and material evidence.  See Shade, 24 Vet. App. at 120-123.   

The newly-obtained statement in support of his own claim, dated September 2010, discusses the in-service respiratory illness event that led to his inability to complete physical training.  See September 2010 statement in support of claim.  This evidence is merely duplicative of his previous statements and as such, is not new and material evidence.  38 C.F.R. § 3.156(a).   

The newly-obtained lay statement from S. Jordan indicates that the appellant fainted while in formation, after asking for "sick call."  See S. Jordan's February 2013 statement.  This evidence is cumulative or redundant of evidence that was associated with the claims file at the time of the September 1983 rating decision, specifically, S. Jordan's January 1983 statement.  See S. Jordan's January 1983 statement.  As such, this evidence is not new and material.  38 C.F.R. § 3.156(a).   

Thus, the additional evidence submitted since the September 1983 rating decision, when considered by itself and in conjunction with evidence that was previously of record, is not new and material.  Specifically, the additional evidence is either unrelated to an unestablished fact necessary to substantiate the appellant's claim, cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim, or does not raise a reasonable possibility of substantiating his claim.  38 C.F.R. § 3.156(a).  As no new and material evidence has been received, the appellant's claim of entitlement to service connection for chronic bronchitis is not reopened.







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ORDER

New and material evidence not having been received, the claim of entitlement to service connection for bronchitis is not reopened.






____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs