Citation Nr: 1752569 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-35 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hyalinized granulomata (a lung disability). 2. Entitlement to service connection for a lung disability. 3. Entitlement to a rating in excess of 30 percent for lichen simplex chronicus (a skin disability). REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from October 1967 to August 1970, with confirmed service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which reopened and denied service connection for a lung disability. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. During the hearing, the Veteran withdrew his claim for an increased rating for a skin disability. A transcript of the hearing is of record. After the hearing, the Veteran submitted additional medical evidence, along with a written statement that he waived review by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (b) (2017). FINDINGS OF FACT 1. At an August 2016 Board hearing, the Veteran indicated that it was his intent to withdraw the appeal for entitlement to a rating in excess of 30 percent a skin disability. 2. In a final decision issued in May 2006, the RO denied the Veteran's claim of entitlement to service connection for a lung disability, finding that new and material evidence had not been submitted. 3. Evidence received since the May 2006 rating decision is new and material; the evidence relates to unestablished facts necessary to substantiate the Veteran's lung disability claim. 4. The evidence demonstrates that the Veteran's lung disability is related to his in-service herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to an increased rating for a skin disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The May 2006 rating decision that denied service connection for a lung disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2017). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a lung disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 4. Resolving all reasonable doubt in favor of the Veteran, the criteria to establish entitlement to service connection for a lung disability, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Increased Rating Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, at the August 2016 videoconference hearing, the Veteran, indicated his intent to withdraw his appeal with regard to the issue of entitlement to an increased rating for a skin disability, prior to promulgation of an appellate decision. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See Id. Further, given the favorable decision by the Board, there is no further duty to notify or assist the Veteran or to explain how VA complied with the duties to notify and assist. Merits of the Claims By way of background, an August 1999 rating decision initially denied service connection for a lung disability. The Veteran did not appeal the decision and it became final. Upon consideration of newly submitted evidence, the RO denied the claim again in May 2006. The Veteran did not appeal this decision and it also became final. The Veteran filed another claim for service connection, which was reopened and denied in April 2012. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156 (a). Material evidence is defined as 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). All new and material evidence claims on appeal are service connection claims. Generally, for a successful claim, the record must have competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (or nexus) between the current disability and the disease or injury incurred or aggravated during service. 38 U.S.C. §§ 1110, 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In May 2006, the evidence of record included service treatment records (STRs), the Veteran's statements and private treatment records. The RO found that the newly submitted private treatment records were new, but not material, to the claim as the new evidence did not provide a nexus between the Veteran's conceded herbicide exposure and his current lung disability. The evidence received since the May 2006 rating decision became final includes updated private treatment records, to include a positive nexus opinion between the Veteran's herbicide exposure and his current lung disability. In this regard, although cognizant that part of a December 2014 opinion from a treating medical doctor is speculative, this physician also wrote that he "believe[d] that [the Veteran's] Agent Orange exposure should be considered as a contributing factor." The Board finds this opinion sufficient to place the evidence of record into relative equipoise and on this basis grant service connection. The pulmonologist's opinion reflects familiarity with the Veteran's medical history and is based on the physician's pulmonary knowledge. Moreover, there is no conflicting medical evidence in that regard and the Board finds that as a pulmonologist, the private physician was qualified to provide that opinion. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached). Based on the foregoing, the Board finds that the additional medical evidence, to include the private nexus opinion is sufficient to reopen the claim, and also supports a finding that the Veteran's current lung disability is related to his in-service herbicide exposure. Therefore, the claim for service connection for a lung disability is reopened and granted. ORDER The appeal as to the issue of entitlement to an increased rating for a skin disability is dismissed. As new and material evidence has been received, the application to reopen a claim of entitlement to service connection for a lung disability is granted. Service connection for a lung disability is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs