Citation Nr: 18141235 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 14-34 922A DATE: October 10, 2018 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for bronchitis is granted. REMANDED The issue of entitlement to service connection for a respiratory condition, to include bronchitis. The issue of entitlement to service connection for a condition manifested by fatigue. The issue of entitlement to service connection for hypertension. The issue of entitlement to service connection for a condition manifested by bilateral arm and leg pain. The issue of entitlement to service connection for a genitourinary condition, to include right epididymis cyst and spermatocele. The issue of entitlement to service connection for a rash of the chest and groin. The issue of entitlement to service connection for a liver condition. FINDINGS OF FACT 1. In a January 1982 rating decision, the RO denied a claim of entitlement to service connection for bronchitis. No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period. 2. Additional evidence received since the RO’s January 1982 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for bronchitis and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bronchitis. CONCLUSIONS OF LAW 1. The January 1982 rating decision is final as to the claim of entitlement to service connection for bronchitis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for bronchitis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to October 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville Kentucky. An April 2013 provisional rating decision denied entitlement to service connection for, in pertinent part, a genitourinary condition, fatigue, a rash of the chest and groin, hypertension, and bilateral arm and leg pain. The Veteran was notified of the provisional rating decision in a May 2013 letter, which also informed him that the decision was not final and that he could request a final decision, submit additional evidence, or request that VA obtain additional evidence it didn’t have. He was not provided with appeal rights, but was told that he if wanted to “receive a final decision with appeal rights before the one-year provisional period ends, send VA a signed statement” requesting that the provisional decision be made final. In July 2013, the Veteran called to “reopen” claims for service connection for (1) a genitourinary condition (2) rash of the chest and groin (3) fatigue (4) hypertension (5) bilateral arm/leg pain. In an April 21, 2014 letter, the RO informed the Veteran that it received his request to reconsider service connection for (1) a genitourinary condition (2) rash of the chest and groin (3) fatigue (4) hypertension and (5) bilateral arm/leg pain. The letter informed the Veteran that those issues were denied in the April 2013 rating decision, that the Veteran was notified in a May 1, 2013 letter, and that the letter included a VA Form 4107, which explained his appeal rights. The letter also informed the Veteran that it would take no further action on his request unless the Veteran submitted new evidence or filed an appeal and that he had one year from the May 1, 2013 letter to do so. In a notice of disagreement form date stamped as received by the RO on May 14, 2014, the Veteran disagreed with, in pertinent part, the denial of entitlement to service connection for a genitourinary condition, fatigue, hypertension, and bilateral arm/leg pain. In a rating decision issued on May 23, 2014, the RO denied service connection for bronchitis and hepatic steatosis and confirmed and continued the denial of service connection for a genitourinary condition, rash of the chest and groin, fatigue, hypertension, and bilateral arm/leg pain. In a notice of disagreement form date stamped as received by the RO on June 14, 2014, the Veteran disagreed with the denial of entitlement to service connection for a liver condition, bronchitis, hypertension, bilateral arm/leg pain, and fatigue. In October 2014, the RO issued a statement of the case for, in pertinent part, entitlement to service connection for a rash of the chest and groin, hypertension, fatigue, bilateral arm/leg pain, a genitourinary condition, and bronchitis. The Veteran filed a VA Form 9 in October 2014 disagreeing with all of the issues listed in the statement of the case. The June 2014 notice of disagreement, which disagreed with the denial of service connection for liver damage, bronchitis, hypertension, bilateral arm/leg pain, and fatigue, is timely as to the May 2014 rating decision. The Veteran was not issued a statement of the case with respect to the issue of entitlement to service connection for a liver condition. Accordingly, the Board must remand this issue, rather than merely refer it. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). With respect to the issues of entitlement to service connection for a genitourinary condition and a rash of the chest and groin, which were listed in the October 2014 statement of the case, the Board notes that the May 2014 notice of disagreement was not timely as to the April 2013 rating decision, which was technically not appealable anyway because it was a provisional rating decision. However, the Board also notes that the April 2014 letter to the Veteran, informing him that the issues of entitlement to service connection for a genitourinary condition and a skin rash had been denied in an appealable April 2013 rating decision and that he had been provided with his appellate rights in connection with that rating decision, was misleading because the April 2013 rating decision was provisional and the Veteran was not provided with appellate rights. Here, although the May 2014 notice of disagreement did not act to place the issues of entitlement to service connection for a genitourinary condition and a rash of the chest and groin into an appellate status for the reasons discussed above and the Veteran did not include these issues on his timely June 2014 notice of disagreement to the finalized May 2014 rating decision, the RO issued a statement of the case listing those issues in October 2014, and the Veteran filed a substantive appeal in October 2014, so within one year of the May 2014 rating decision. In light of the misleading April 2014 letter to the Veteran, and in order to ensure that the Veteran is not prejudiced, the Board finds that the October 2014 substantive appeal should be construed as a timely notice of disagreement with respect to the issues of entitlement to service connection for a genitourinary condition and a rash of the chest and groin. The Veteran has not been issued a statement of the case with respect to those issues. Accordingly, the Board must remand the issues for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). New and Material Evidence The Veteran’s claim of entitlement to service connection for bronchitis was previously denied, and the Veteran seeks to reopen the claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 (a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” 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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran initially filed a claim of entitlement to service connection for hypertension in November 1981. In a January 1982 rating decision, the RO denied the claim on the basis that the evidence failed to show that bronchitis was related to service. The Veteran was notified of the decision and his appellate rights by a letter dated in January 1982. The Veteran did not file a notice of disagreement, nor did he submit any new and material evidence within a year of that rating decision. The January 1982 rating decision therefore became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the RO’s January 1982 rating decision included the Veteran’s service treatment records and VA treatment records. Based on this evidence, the RO concluded that the Veteran’s bronchitis was not incurred during service and denied the Veteran’s claim for service connection. In July 2013, the Veteran requested that his claim of entitlement to service connection for bronchitis be reopened. Relevant additional evidence received since the RO’s January 1992 rating decision includes additional VA treatment records and the Veteran’s assertions regarding experiencing bronchitis in service and continually since service. This evidence was not previously on file at the time of the RO’s January 1992 decision; thus, it is new. Furthermore, this evidence is material because it contributes to a more complete picture concerning the origins of the Veteran’s disability. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claim of entitlement to service connection for bronchitis is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The underlying claim is addressed further in the Remand section below. REASONS FOR REMAND After a thorough review of the Veteran’s claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the remaining issues on appeal. Outstanding Records The record reflects that there may be relevant VA treatment records that have not been associated with the claims file. In this regard, the RO obtained VA treatment records dated through December 1980 and from October 2001 to February 2015. In his June 2011 claim and in other statemens, the Veteran identified additional VA treatment in between 1980 and 2001. In February 2015, the RO requested VA treatment records dated from December 1980 to September 2001. See VA Form 10-7131. There is no indication that any additional records were received by VA or that a negative response by the Nashville VAMC was rendered. There is also no indication that the Veteran was informed of the inability to obtain the records. Upon remand, the AOJ should obtain all outstanding VA treatment records documenting treatment for the issues on appeal, including records dated from December 1980 to September 2001, as well as any current VA treatment records dated from February 2015 to the present. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board’s decision, whether or not filed in the appellant’s claims folder, are in the constructive possession of the Board and must be considered). Service Connection for a Respiratory Condition The Veteran contends he incurred bronchitis in service due to training in cold and damp environments. Service treatment records reflect numerous complaints related to chest congestion and cough. See October 1973 STR (cold, chest pains, coughing up mucous); February 1974 STR (chest congestion); April 1974 (chest congestion); March 1975 (cold syndrome). Post-service treatment records show complaints of mucusy cough. See July 2013 VA Treatment Record. In a June 2014 statement, the Veteran reported that he was first treated for bronchitis in service after sleeping in below-zero weather during boot camp and that he continues to have symptoms of bronchitis to the present day. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. However, the Board finds that there is insufficient evidence of record to decide the claim. To date, the Veteran has not been afforded a VA examination regarding his respiratory condition. Accordingly, remand is required for an examination in order to assess the precise nature and etiology of the Veteran’s respiratory condition. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to Service Connection for Rash of the Chest and Groin, a Genitourinary Condition, and a Liver Condition As discussed above, the RO denied entitlement to service connection for a rash of the chest and groin, a genitourinary condition, and a liver condition in a May 2014 rating decision. The Veteran expressly disagreed with the denial of service connection for a liver condition in his June 2014 notice of disagreement, and his October 2014 substantive appeal has been liberally construed by the Board to be a valid and timely notice of disagreement with the denial of service connection for a rash of the chest and groin and a genitourinary condition. The AOJ, however, has not issued the Veteran a statement of the case with respect to these issues. Where a notice of disagreement has been timely filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the Board finds that a remand is necessary for the issuance of a statement of the case on the issues of entitlement to service connection for rash of the chest and groin, a genitourinary condition, and a liver condition. 38 C.F.R. § 20.201, 20.300-301; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with a statement of the case regarding the issues of entitlement to service connection for rash of the chest and groin, a genitourinary condition, and a liver condition. Advise them of the time period in which to perfect the appeal. If the Veteran perfects his appeal of these issues in a timely fashion, then return the case to the Board for its review, as appropriate. 2. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated from December 1980 to October 2001 and from February 2015 to the present, documenting treatment for the issues on appeal. If any of the records requested remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). Additionally, send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization in order to obtain any additional private treatment records pertinent to the claim on appeal that is not currently of record. All records obtained pursuant to this request must be included in the Veteran’s claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file in accordance with 38 C.F.R. § 3.159 (c)(1). 3. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of any respiratory conditions. The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. After examining the Veteran and reviewing the claims file, the examiner is asked to address each of the following questions: (a.) Identify all respiratory conditions diagnosed during the pendency of the Veteran’s claim (i.e. since July 2013). (b.) For each identified respiratory condition, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the condition had its onset in service or is related to any in-service disease, event, or injury, to include the documented in-service treatment for respiratory symptoms and the Veteran’s reports of sleeping in sub-zero temperatures during boot camp. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence, particularly the VA treatment records from 1976-1980 showing treatment for bronchitis and the Veteran’s statements regarding symptoms in service and since discharge. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel