Citation Nr: 1754812	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO. 15-08 199	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of histoplasmosis of the lung. 

2. Entitlement to service connection for residuals of histoplasmosis of the lung. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and the Veteran's daughter, L.C. 



ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from May 1944 to June 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. 

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing has been associated with the claims file. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012).

The issue of entitlement to service connection for residuals of histoplasmosis of the lung is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In a September 1957 rating decision, the RO denied the Veteran's claim for service connection for histoplasmosis of the lung. The Veteran did not perfect an appeal to that decision. 

2. Evidence received since the September 1957 decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for residuals of histoplasmosis of the lung, and raises a reasonable possibility of substantiating the claim. 


CONCLUSIONS OF LAW

1. A September 1957 rating decision that denied the Veteran's claim of service connection for histoplasmosis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 

2. Since the prior final denial of the claim of service connection for histoplasmosis, new and material evidence has been received; hence, the requirements to reopen the claim have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§, 5102, 5103, 5103A (2012) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

In light of the favorable decision to reopen the Veteran's claim of entitlement to service connection for histoplasmosis of the lung, any deficiency as to VA's duties to notify and assist, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot.

With respect to the reopened claim, the Board has determined that further development of the record is warranted, so that matter is addressed in the remand that follows this decision.


II. New and Material Evidence

In a September 1957 rating decision, the RO denied the Veteran's claim for service connection for histoplasmosis of the lung. The Veteran did not perfect an appeal, so the decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). In August 2011, the Veteran sought to reopen this claim.

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Regarding petitions to reopen filed on or after August 29, 2001, Title 38, Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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) (2017).

In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, as indicated above, the last final denial pertinent to the claim for service connection for histoplasmosis of the lung was the September 1957 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

The Veteran filed his original application for service connection for histoplasmosis in July 1957. The RO denied the claim for service connection in September 1957 and, in so doing, found that the Veteran had not established a nexus between his current histoplasmosis of the lung diagnosis and service, considering the length of time since service with no evidence of lung pathology during the intervening period. The Veteran now asserts that he is entitled to service connection for residuals of histoplasmosis as a result of medical research in histoplasmosis. In particular, the Veteran contends that medical research now shows that histoplasmosis can, in some cases, take years to manifest and the one infected can be without symptoms during that time. As a result, the Veteran contends that service connection for histoplasmosis of the lung is warranted. 

Evidence of record in 1957 included the Veteran's service treatment records, review of which reflects that they are silent as to any complaints of or treatment for infection of the lungs, and no abnormalities of the respiratory system were noted at his June 1946 separation examination. Post-service medical records of record at the time of the September 1957 decision were treatment records from Dr. J.A.N., Dr. O.M.B., Dr. R.I.D., and State of Oregon Tuberculosis Hospital. These records indicate that the Veteran's symptoms for histoplasmosis began in 1956. 

Relevant evidence added to the record since the RO's September 1957 denial includes two medical opinions from Dr. S.C. and medical articles indicating that histoplasmosis of the lung can have a latent onset and can be asymptomatic.

As such, the Board finds that the evidence, in the form of the medical opinions and medical research articles, is "new" in the sense that it was not previously considered by the agency decision makers. The Board also finds that the newly submitted evidence is not cumulative or duplicative of evidence previously considered and is thus "material" for purposes of reopening the Veteran's claim. 

In this regard, the Board notes that, at the time of the September 1957 rating decision, the RO denied the Veteran's claim for service connection because he had not established that his service caused or aggravated the histoplasmosis of the lung, or that the disorder began in service. Prior to the receipt of the above-identified evidence, the RO had not received or reviewed medical evidence supporting the Veteran's contention that his histoplasmosis was etiologically linked to his time in service. Newly submitted evidence, however, directly addresses facts that had been unestablished at the time of the September 1957 determination-a nexus between service and the Veteran's histoplasmosis of the lung. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran has provided evidence of a link between service and the diagnosis of histoplasmosis of the lung and its residuals. The Board thus finds that the evidence adds to the record in a way that it should be considered new and material. 

The Board finds, therefore, that the identified evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). Accordingly, new and material evidence has been submitted, and the criteria for reopening the previously denied claim of service connection for histoplasmosis of the lung have been met. 


ORDER

New and material evidence to reopen the claim of service connection for histoplasmosis of the lung has been received; to this limited extent, the appeal of this issue is granted. 


REMAND

Although further delay is regrettable, the Board finds that further development is necessary prior to adjudication of the Veteran's claim on appeal. 

The Board is not free to substitute its own judgment for that of an expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Since the Veteran's last VA examination in January 2015, the Veteran has submitted Travel Board hearing testimony and medical literature relating to the latent onset of histoplasmosis. This evidence needs to be evaluated and considered in a medical opinion. Thus, an addendum opinion is necessary to evaluate and consider the testimony from the Veteran' s Travel Board hearing and subsequently submitted medical literature regarding delayed onset of the Veteran's histoplasmosis of the lung and its residuals.  

Accordingly, the case is REMANDED for the following action:

Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.

1. Return the claims file to the January 2015 VA examiner, or to a different qualified examiner if the January 2015 examiner is not available, for a supplemental opinion. The examiner must review the entire claims file, and should note that review in the report. Based on the prior examination results and review of the record, the examiner should provide an addendum opinion. 

The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's histoplasmosis was caused or incurred by exposure to the fungus that causes histoplasmosis while in service. The examiner is to specifically consider the medical literature submitted after the January 2015 VA examination supporting the Veteran's contention of being asymptomatic years after exposure and experiencing a delayed onset of histoplasmosis. The examiner must also consider the testimony from the October 2017 Travel Board hearing. The rationale for all opinions expressed must be provided. 

2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

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. §§ 5109B, 7112 (2012).




______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs