Citation Nr: 1805995 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-23 482A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disorder, to include reactive airway disease. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a kidney disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from November 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The appellant filed a timely Notice of Disagreement (NOD), received in November 2008. A Statement of the Case (SOC) was issued in July 2009. A timely substantive appeal was received in July 2009. The appellant was afforded a travel Board hearing before a Veterans Law Judge in March 2017. He was accompanied by C.C.; however, C.C. did not testify. In a November 2017 letter, the appellant was notified that the Veterans Law Judge before whom he had testified is no longer employed by the Board and was provided the opportunity to have another hearing before the Veterans Law Judge who would ultimately decide his claim. However, in correspondence received in November 2017, the appellant declined an additional Board hearing. Thus, the Board will proceed with adjudication of the claim. The issues of entitlement to service connection for a respiratory disorder, to include reactive airway disease, and entitlement to service connection for a kidney disorder 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 a November 1992 rating decision, the RO denied service connection for a respiratory disorder and a kidney disorder. The appellant was duly notified of the RO's determination and his appellate rights but he did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 2. Evidence received since the final November 1992 rating decision denying service connection for a respiratory disorder relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for a respiratory disorder, to include reactive airway disease. 3. Evidence received since the final November 1992 rating decision denying service connection for a kidney disorder relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for a kidney disorder. CONCLUSIONS OF LAW 1. The November 1992 rating decision denying service connection for a respiratory disorder and a kidney disorder is final. 38 U.S.C. § 7105(c) (1988); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 2. New and material evidence has been received to warrant reopening of the claim of service connection for a respiratory disorder, to include reactive airway disease. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to warrant reopening of the claim of service connection for a kidney disorder. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b) (1). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision. II. Applicable Law In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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 evidence is inherently incredible or beyond competence of witness). 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, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Analysis In a November 1992 rating decision, the RO denied service connection for a respiratory disorder because there was no in-service event, injury, or disease. The RO also denied service connection for a kidney disorder because there was no in-service event, injury, or disease. The appellant was duly informed of this decision in a November 1992 letter, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of such letter. He does not contend otherwise. Thus, the determination is final. The appellant now seeks to reopen these previously denied claims. Despite the finality of a prior adverse decision, 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. § 5108; 38 C.F.R. § 3.156. In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in November 1992. Such includes the appellant's March 2017 testimony that (1) he experienced pneumonia on three occasions in service, he was told that he had a spot on his lungs during an in-service hospitalization for one such sickness, and a private doctor diagnosed him with bronchial asthma in the 1970s, shortly after service; and (2) he was pulled out of basic training by Army clinicians who informed him that he had kidney disease. This evidence is new, as the evidence before the RO at the time of its November 1992 rating decision did not contain evidence of in-service events, injuries, or diseases. Further, presuming its credibility, it is material, as it relates to unestablished facts necessary to substantiate each claim. Service connection was denied for these claims, in part, because there was no in-service event, disease, or injury for either. The Board finds that this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claim and triggers VA's duty to provide medical examinations for these claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination should be provided). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant's previously denied claims of service connection for a respiratory disorder and a kidney disorder are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Although the record is sufficient to warrant reopening of the claims, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. ORDER New and material evidence having been received, the claim of entitlement to service connection for a respiratory disorder, to include reactive airway disease, is reopened. New and material evidence having been received, the claim of entitlement to service connection for a kidney disorder is reopened. REMAND The appellant contends that he developed chronic asthma and airway reactive disease as residuals of his in-service pneumonia episodes because such episodes included asthmatic symptoms, such as wheezing and difficulty breathing. He also contends that he developed a kidney disorder during active service which has led to chronic kidney stones and kidney cysts. With respect to his respiratory disorder claim, during his March 2017 Board hearing, the appellant testified that he had had pneumonia on three occasions while on active duty and was hospitalized for two weeks on one occasion. He reported that he was diagnosed with reactive airway disease at Fort Polk, Louisiana, when he had been hospitalized. He stated that clinicians also discovered a spot on his lungs and that they told him that he would probably have problems later in life. The appellant stated that he saw a private doctor for a chronic cough and was diagnosed with bronchial asthma. This first asthma diagnosis was made in the 1970s and medication was prescribed, which cleared it up. However, it kept returning and a VA hospital eventually told him that he had chronic asthma. He endorsed symptoms of shortness of breath, increased symptomatology if he is in the rain, spring allergies, and head congestion. Such congestion goes down into his lungs and shortens his breath when "crud gets on [his] lungs." He also stated that such appeared to raise his blood pressure. The representative stated that the appellant experienced asthmatic symptoms during his 1968 pneumonia hospitalization and had a 106 degree fever. With respect to his kidney disorder claim, during his March 2017 Board hearing, the appellant testified that he passed his induction physical, but toward the end of basic training, he was told that he had a kidney disease. Because the appellant reported that he felt fine, he was sent back to his barracks. He stated that kidney disease was mentioned again when he contracted pneumonia. The appellant stated that, at one point, he was told that kidney disease was apparent due to the dilation of his eyes. He reported that, while he was in the Army Reserve, he experienced severe pain in his side and was told by a clinician at Lock Haven, or Loch Raven, Hospital that he had kidney disease and many kidney stones. This occurred in the 1970s. He stated that, when he went into the Special Forces, clinicians could tell he had kidney disease by looking at his eyes. Such training was cancelled for a year until he passed his kidney stone. He stated that, a couple of years prior to the Board hearing, private and VA doctors told him that he had cysts in and on his kidneys and liver. He has passed additional small kidney stones and testified that he has been told that such are calcium deposits from dairy products. He explained that he did not consume milk or dairy products very often prior to his active service, but began consuming them regularly while on active duty. The Board observes that nothing was noted on entry regarding any respiratory or kidney problems, per the July 1967 induction Report of Medical Examination. This has not escaped the attention of the appellant's representative, who noted such during the March 2017 hearing. On an August 1973 Report of Medical History completed by the appellant in connection with his Reserve service, he reported experiencing a kidney stone and experiencing pain or pressure in chest. Tuberculosis, asthma, shortness of breath, and chronic cough were denied. The clinician noted the appellant's history of kidney stone at a VA hospital. An April 1975 clinical note states that the appellant presented with right flank and right lower quadrant pain. He had a history of ureteral calculi, which passed spontaneously. The final diagnosis was ureteral calculi. A June 1978 note from Central Medical Center states that the appellant's chest X-ray was negative. Lesions, compatible with cysts, in the kidney and liver were observed in a September 2009 MRI. An August 2011 clinical note from Union Memorial Hospital stated that a March 2011 computed axial tomography scan of the chest revealed polycystic liver and kidneys. Past medical history also included uropathy. Given the evidence of record, the Board finds that a VA medical examination and opinion are necessary for each issue. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a medical examination is necessary when the evidence indicates that a current disability may be associated with service or a service-connected disability but is lacking in specificity to support a decision on the merits). It appears that the referenced March 2011 computed axial tomography scan of the chest may not be associated with the claims file. It is further unclear whether this was performed at a VA or private facility. Upon remand, the appellant should be invited to identify any and all private medical facilities which may have records relevant to the instant claims, and provide appropriate authorization such that VA may request any identified records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the appellant and ask him to submit or identify any additional medical records relevant to his claims, to include the March 2011 computed axial tomography scan of the chest, referenced in an August 2011 clinical note from Union Memorial Hospital. After obtaining any necessary information and authorization from the appellant, the AOJ should undertake the necessary efforts to obtain and additional private medical records pertinent to the appellant's claims. 2. Any and all outstanding VA treatment records should be associated with the claims file. It appears that this was last performed in January 2015. 3. Provide the appellant with an examination to determine the nature and etiology of any and all respiratory disorders present, to include reactive airway disease. After examining the appellant and reviewing the claims file, the examiner should identify all respiratory disorders present, including reactive airway disease. If reactive airway disease is not present, an explanation must be provided. Next, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that each diagnosed respiratory disorder is causally related to the appellant's active service or any incident therein. A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should reference the relevant evidence of record, including (1) the appellant's contention that he developed chronic asthma and airway reactive disease as residuals of his in-service pneumonia bouts; (2) the appellant's three bouts of pneumonia while on active duty, (3) the appellant's March 2017 testimony that a spot on the lungs was discovered and that he was told he would have problems later in life; (4) March 2017 testimony that he was first diagnosed with bronchial asthma in the 1970s; (5) the representative's statement that the appellant experienced asthmatic symptoms during his 1968 pneumonia hospitalization; and (6) a negative chest X-ray from June 1978. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Provide the appellant with an examination to determine the nature and etiology of any and all kidney disorders present. After examining the appellant and reviewing the claims file, the examiner should identify all kidney disorders present. The examiner should note that the appellant and his representative contend that chronic kidney stones and kidney cysts are the result of a kidney disease caused by or incurred in active duty. Next, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that each diagnosed kidney disorder identified is causally related to the appellant's active service or any incident therein. A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should reference the relevant evidence of record, including (1) the appellant's contention that he developed a kidney disorder during active service which has led to kidney stones and cysts; (2) the appellant's March 2017 testimony that he was first told he had kidney disease near the end of basic training; (3) March 2017 testimony that, while in the Army Reserves not long after his active service, he was diagnosed with kidney disease and kidney stones by a clinician at Lock Haven or Loch Raven Hospital; (4) March 2017 testimony that private and VA doctors have recently told him that he has cysts in and on his kidneys and liver; (5) March 2017 testimony that he has passed numerous kidney stones and that he has been told that such kidney stones are due to dairy consumption, which he began while on active duty; (6) an April 1975 diagnosis of ureteral calculi; (7) a September 2009 MRI which revealed lesions, compatible with cysts, in the kidney and liver; and (8) an August 2011 clinical note which states that a March 2011 computed axial tomography scan of the chest revealed polycystic liver and kidneys and that past medical history included uropathy. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. 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 claims must be readjudicated. If the benefits sought on appeal remain denied, a Supplemental Statement of the Case must be provided to the appellant and his representative. After the appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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). 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). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs