Citation Nr: 18148645 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-43 754 DATE: November 8, 2018 ORDER The previously denied claim of entitlement to service connection for bronchitis (also claimed as obstructive airway disease) is reopened. REMANDED The issue of whether new and material evidence was received to reopen the previously denied claim of entitlement to service connection for sinusitis is remanded. The issue of whether new and material evidence was received to reopen the previously denied claim of entitlement to service connection for gastroenteritis (now claimed as a gastrointestinal condition) is remanded. The claim of entitlement to an evaluation in excess of 20 percent for fracture, left proximal humerus with degenerative joint disease prior to June 1, 2015, and in excess of 30 percent thereafter is remanded. The claim of entitlement to an evaluation in excess of 10 percent for fracture, left ankle with degenerative joint disease is remanded. The claim of entitlement to service connection for bronchitis (also claimed as obstructive airway disease) is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A claim of entitlement to service connection for bronchitis (also claimed as obstructive airway disease) was initially denied in a July 1992 rating decision. This claim was denied on the basis that treatment for these conditions was shown in service, but they were not chronic and no disability was shown at the time of the VA examination. 2. Evidence received since the July 1992 rating decision speaks to the reasons for the previous final denial and warrants reopening the Veteran’s claim for service connection. CONCLUSION OF LAW The criteria to reopen the previously denied claim of entitlement to service connection for bronchitis (also claimed as obstructive airway disease) have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1981 to October 1991. The Veteran originally sought service connection for sinusitis and bronchitis (also claimed as obstructive airway disease) in an October 1991 claim. A July 1992 rating decision denied these claims. The Veteran sought service connection for gastroenteritis in a January 2004 claim, which was denied in a February 2005 rating decision. By claim filed in November 2012, the Veteran sought reopening of the claims of entitlement to service connection for sinusitis, bronchitis (also claimed as obstructive airway disease), and requested reopening of the previously denied disability of a “gastrointestinal condition.” He also sought increased evaluations for his service-connected left arm condition and his service connected left ankle condition, as well as other conditions. A November 2013 rating decision addressed these claims. The Veteran’s claim of service connection for hypertension was denied in an April 2014 rating decision, and his claim of entitlement to a TDIU was denied in an October 2014 rating decision. On the Veteran’s September 2016 Form 9 Substantive Appeal, he indicated he only wished to appeal the issues addressed in the July 2016 Statement of the Case of entitlement to (a) an increased rating for the fracture of the left proximal humerus with degenerative joint disease, (b) an increased rating for the left ankle fracture with degenerative joint disease, (c) service connection for bronchitis (also claimed as an obstructive airway disease), (d) service connection for sinusitis, (e) hypertension, and (f) TDIU. Due to this limitation, the appeal is not considered to have been perfected as to the issues of increased ratings for bilateral hearing loss, grand mal seizure, and asthma, and service connection for a right shoulder condition, a neck condition, a lower back condition, cholelithiasis, pancreatitis and cirrhosis (claimed as gastrointestinal condition), right knee sprain, acute lung disease, and sleep apnea, and these issues are not presently before the Board. See 38 C.F.R. §§ 20.200 and 20.202. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bronchitis (also claimed as obstructive airway disease). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered “new” if it was not previously submitted to agency decision makers; “material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. In this case, the Veteran was denied service connection for bronchitis (also claimed as obstructive airway disease) in a July 1992 rating decision. This claim was denied on the basis that treatment for these conditions was shown in service, but they were not chronic and no disability was shown at the time of the VA examination. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence associated with the file includes a March 2016 VA treatment record that provides a diagnosis of “COPD exacerbation.” Additionally, the Veteran, on appeal, contends that he has “continued treatment” for obstructive airway disease and bronchitis since his discharge from service in 1991. This new diagnosis is material, and may relate to several service treatment record entries, including the service treatment record, noting a November 1987 post- pulmonary function test interpretation of moderate to severe obstructive airway disease. The new evidence is considered to have a reasonable possibility of substantiating the claim, and as such, reopening of the claim is warranted. 38 C.F.R. § 3.156(a) REASONS FOR REMAND The issues of (1) entitlement to an evaluation in excess of 20 percent for fracture, left proximal humerus with degenerative joint disease prior to June 1, 2015, and excess of 30 percent thereafter, (2) entitlement to an evaluation in excess of 10 percent for fracture, left ankle with degenerative joint disease is remanded (3) whether new and material evidence was received to reopen the previously denied claim of entitlement to service connection for sinusitis, (4) whether new and material evidence was received to reopen the previously denied claim of entitlement to service connection for gastroenteritis (now claimed as a gastrointestinal condition), (5) entitlement to service connection for bronchitis (also claimed as obstructive airway disease, (6) entitlement to service connection for hypertension, and (7) entitlement to a total disability rating based on individual unemployability are remanded Although the additional delay is regrettable, careful review of the file shows that further development is required before the Board may adjudicate these issues. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159 (c)(2); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). It appears that there are outstanding records. The Veteran stated in his September 2016 VA Form Substantive Appeal to the Board that he was in current receipt of Social Security benefits, and he requested that the VA retrieve all records from the Social Security Administration in support of this appeal. He also suggested that there may be outstanding VA medical records from the VAMC in Hampton, Virginia, which would support his claim for a higher evaluation for his joints. Due to these outstanding Social Security and VA medical records, remand for further development is required. After these documents are obtained, they should be reviewed for any relevant information pertaining to the claims on appeal, any further development warranted should be taken, and thereafter, the claims should be readjudicated. Further, the evidence currently associated with the file shows that additional clarification and development must be performed on specific claims. Regarding the claim of entitlement to service connection for gastroenteritis, the Veteran’s claim sought service connection for “gastrointestinal condition,” which is broader than the previously denied condition of gastroenteritis. The necessary development depends on which condition the Veteran is seeking service connection for. As such, the AOJ should seek any necessary clarification from the Veteran, perform any additionally development deemed necessary, and readjudicate this claim. Regarding the claim of service connection for hypertension, the Veteran was initially scheduled for a VA examination in June 2016, which he did not attend. On appeal, the Veteran contended he was unaware that he had been scheduled for a VA examination for this condition. It is unclear how or when the Veteran was notified of the appointment from the record. As the evidence of record tends to show that the Veteran did not receive notice, the Veteran is considered to have established good cause for his failure to report, and he must be provided another opportunity to attend a VA examination for hypertension. 38 C.F.R. § 3.655. After the outstanding records are associated with the file, the Veteran should be scheduled for a new VA examination. Regarding the claim of entitlement to service connection for bronchitis (also claimed as obstructive airway disease), as noted above, the claim has been reopened. On comprehensive review of the evidence, further development (in addition to the review of outstanding records) is required. As noted above, there is a November 1987 in-service notation that post- pulmonary function test, a clinician provided an interpretation of moderate to severe obstructive airway disease. Further, there is evidence that may support finding a current disability of an obstructive airway disease, as there is a diagnosis of COPD in the VA treatment records. A medical opinion is required to assess the current disability, and to determine if the current disability is related to the condition noted during active service. 38 U.S.C. § 5103A(d). Accordingly, on remand, a VA examination to address the nature and etiology of the Veteran’s bronchitis or obstructive airway disease should be scheduled. The matters are REMANDED for the following action: 1. Perform any required development to obtain such records and to update VA medical records, specifically, any records outstanding from the Hampton, Virginia VAMC. 2. Request clarification from the Veteran as to which gastrointestinal condition service connection is sought. 3. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the record. 4. Schedule the Veteran for an appropriate examination to determine whether he has a current diagnosis of hypertension, and if it is related to his active service. After reviewing the claims file and performing all indicated tests, the examiner is to state whether it is at least as likely as not that any hypertension disability had its onset during or is otherwise related to the Veteran’s active service. 5. Schedule the Veteran for an appropriate examination to determine whether he has a current diagnosis of bronchitis, obstructive airway disease, or COPD, and if it is related to his active service. After reviewing the claims file and performing all indicated tests, the examiner is to state whether it is at least as likely as not that any diagnosed condition had its onset during or is otherwise related to the Veteran’s active service 6. After the development above has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issues on appeal. If the determination remains adverse to the Veteran, the AOJ should furnish an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should be returned to the Board for further appellate consideration, if in order, for further review. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel