Citation Nr: 18143430 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-39 689 DATE: October 19, 2018 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for sarcoidosis (claimed as breathing problems, respiratory condition) is reopened. REMANDED Entitlement to service connection for sarcoidosis (claimed as breathing problems, respiratory condition) is remanded. FINDINGS OF FACT 1. Service connection for sarcoidosis was denied in an August 2013 rating decision from which the Veteran initiated an appeal, but the decision became final after the Veteran failed to perfect a timely appeal to the Board. 2. Evidence received since the August 2013 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. The August 2013 rating decision that denied service connection for sarcoidosis (claimed as breathing problems, respiratory condition) is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. The criteria for reopening the Veteran’s previously denied claim of entitlement to service connection for sarcoidosis (claimed as breathing problems, respiratory condition) have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to October 1988 and from September 1990 to April 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was informed of his right to a personal hearing before the Board, but declined a hearing. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for sarcoidosis (claimed as breathing problems, respiratory condition) At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim of entitlement to service connection for sarcoidosis. As explained below, new and material evidence sufficient to reopen the claim has been submitted. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). The RO originally denied the Veteran service connection for sarcoidosis (claimed as breathing problems, respiratory condition) in August 2013. The Veteran initiated an appeal by filing a notice of disagreement, but the decision became final after the Veteran failed to perfect a timely appeal after a statement of the case was issued in March 2015. The Veteran subsequently filed a claim to reopen the issue, and, in August 2015, the RO declined to reopen the Veteran’s claim. The Veteran appealed. Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. In the August 2013 rating decision, the RO denied the Veteran’s claim, because the evidence of record contained a July 2013 VA examination which indicated that the Veteran’s sarcoidosis was not related to a period of service. The Veteran subsequently submitted a private medical opinion which was completed in May 2015, received by VA in June 2015, which indicated that it is at least as likely as not that the Veteran’s in-service lymphadenopathy and sarcoidosis symptoms mark the onset of the Veteran’s current sarcoidosis. Therefore, the evidence submitted since the last final denial is new and material, and the Veteran’s claim for service connection for sarcoidosis is deemed reopened. REASONS FOR REMAND Entitlement to service connection for sarcoidosis is remanded (claimed as breathing problems, respiratory condition). The Veteran contends that he is entitled to service connection for sarcoidosis. The Veteran submitted a May 2015 private medical opinion indicating that one cannot say exactly how long this condition existed prior to the date of diagnosis or definitively state its cause, but that it is as likely as not that the Veteran’s documented in-service symptoms mark the onset, cause, or contributes to his current sarcoidosis condition. This is insufficient to grant the Veteran service connection, because it is conclusory in nature without identifying which principles and methods it relied upon. Nevertheless, it is sufficient to trigger VA’s duty to assist, and this matter must be remanded for a VA examination in order to discuss the significance of the Veteran’s opinion. The matter is REMANDED for the following action: 1. Updated pertinent treatment records should be obtained and added to the claims file. 2. Following completion of the above, schedule the Veteran for a VA examination in order to determine the date of onset of the Veteran’s sarcoidosis. Following review of the claims file and examination of the Veteran, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sarcoidosis is of service onset, manifested within one year of service discharge or is otherwise related to service. The examiner should specifically consider and discuss the May 2015 private medical opinion indicating in its entirety that “One cannot say exactly how long this condition existed prior to the date of diagnosis or definitively state its cause. However, it is as likely as not that [the Veteran’s] documented in-service Lymphadenopathy and Sarcoidosis symptoms mark the onset, cause[,] or contribute to his current Sarcoidosis condition.” BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel