Citation Nr: 18159345 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-05 250 DATE: December 19, 2018 ORDER VA has received new and material evidence to reopen a claim of service connection for sarcoidosis. To this extent only, the appeal is granted. REMANDED Entitlement to service connection for sarcoidosis is remanded. Entitlement to service connection a respiratory disorder, to include fibrosis and chronic obstructive pulmonary disorder (COPD), is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. VA denied the Veteran’s claim for sarcoidosis in May 2001. The Veteran appealed this denial in January 2002. VA determined that he did not perfect a timely appeal, and the Board concurred in April 2004. Therefore, the decision became final. 2. The Veteran filed a claim for service connection for sarcoidosis in May 2011. He submitted new and material evidence with this claim. CONCLUSIONS OF LAW 1. The May 2011 rating decision denying the claim for service connection for sarcoidosis is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence since that decision has been submitted to allow the reopening of the sarcoidosis claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA). Issue 1: Whether VA has received new and material evidence to reopen a claim of entitlement to service connection for sarcoidosis. New and Material Evidence VA denied the Veteran’s claim for sarcoidosis in May 2001. The Veteran appealed this denial in January 2002. VA determined that he did not perfect a timely appeal, and the Board concurred in April 2004. Therefore, the decision became final. Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, 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). At the time of the May 2001 denial, the record consisted of service treatment records and private medical records. Subsequently, VA received additional private medical records including a medical nexus statement. This evidence was new. This evidence was also material because it helps substantiate his claim, and it relates to a reason VA previously denied his claim. Reopening of the Veteran’s the claim for service connection for sarcoidosis based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). REASONS FOR REMAND Remand is warranted for several reasons. First, in October 1998, the Social Security Administration (SSA) determined the Veteran's sarcoidosis disabled him. VA has not obtained the medical records or adjudication underlying this decision, so it should attempt to obtain them on remand. Second, VA has presumed, as seen in the January 2017 Statement of the Case, that the Veteran was exposed to "herbicide agents," as 38 C.F.R. § 3.307(a)(6) defines that term, during his service in Korea. Accordingly, VA examinations are warranted for his three claimed disorders. The undersigned observes that the Veteran argued both direct and secondary theories of entitlement for his sarcoidosis, so this is reflected below. The matters are REMANDED for the following action: 1. Attempt to obtain the medical records and adjudication from SSA regarding the Veteran's sarcoidosis. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sarcoidosis, respiratory disorder, to include fibrosis and COPD, and hypertension. The examiner must answer these questions: a) Is at least as likely as not (50 percent probability) that the Veteran's sarcoidosis began during or is otherwise related to his military service? Why or why not? b) Is at least as likely as not (50 percent probability) that the Veteran’s respiratory disorder, to include fibrosis and COPD, began during or is otherwise related to his military service? Why or why not? c) Is at least as likely as not (50 percent probability) that the Veteran’s respiratory disorder, to include fibrosis and COPD, CAUSED his sarcoidosis, as argued in an August 2012 statement? Why or why not? d) Is at least as likely as not (50 percent probability) that the Veteran’s respiratory disorder, to include fibrosis and COPD, AGGRAVATED his sarcoidosis, as argued in an August 2012 statement? Why or why not? e) Is at least as likely as not (50 percent probability) that the Veteran’s respiratory disorder, to include fibrosis and COPD, CAUSED his hypertension, as argued in an August 2012 statement? Why or why not? f) Is at least as likely as not (50 percent probability) that the Veteran’s respiratory disorder, to include fibrosis and COPD, AGGRAVATED his hypertension, as argued in an August 2012 statement? Why or why not? In answering these questions, the examiner is advised that VA has presumed, as seen in the January 2017 Statement of the Case, that the Veteran was exposed to “herbicide agents,” as 38 C.F.R. § 3.307(a)(6) defines that term, during his service in Korea. (Continued on the next page)   In answering these questions, the examiner is also advised to expressly comment on the medical nexus opinion from Dr. N.D. dated June 29, 2011 which connects the Veteran's sarcoidosis to his "herbicide agent" exposure. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel