Citation Nr: 18161057 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-34 869 DATE: December 28, 2018 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for a chest disability, to include pectus excavatum, and the claim remains denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as pleurisy, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for depression, to include as secondary to a service-connected surgical scar, is remanded. Entitlement to service connection for loss of balance is remanded. Entitlement to service connection for sinusitis, claimed as chronic chest colds, is remanded. Entitlement to service connection for left upper extremity disability, claimed as numbness, is remanded. Entitlement to service connection for right upper extremity disability, claimed as numbness, is remanded. Entitlement to service connection for a chest numbness is remanded. Entitlement to an initial rating in excess of 10 percent for a chest surgical scar is remanded. Entitlement to an initial rating in excess of 0 percent for a ventral hernia is remanded. FINDINGS OF FACT 1. A February 1977 RO rating decision denied service connection for a chest disability. 2. The Veteran did not perfect an appeal of the February 1977 RO decision. 3. The evidence received since the February 1977 rating decision is either cumulative or redundant, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a chest disability. CONCLUSIONS OF LAW 1. The February 1977 RO rating decision denied service connection for a chest disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. As new and material evidence has not been received, the claim for service connection for a chest disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 until September 1976. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. New and Material Evidence Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a chest disability, to include pectus excavatum Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Generally, VA rating decisions that are not timely appealed are final. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. §§ 5108, 7105. New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The claim for service connection for pectus excavatum (chest deformity) was previously denied by rating decision, dated February 18, 1977, because the condition is a congenital deformity that was not subject to service connection and was not aggravated by service. The Veteran did not appeal that decision within the one year appeal period. Therefore, the decision became final. The evidence added to the claims file subsequent to the February 1977 rating decision includes duplicate service medical records and statements from the Veteran. However, none of the additional records submitted indicate or suggest that the chest disability is linked to service or was aggravated beyond its natural progression during service. Therefore, the records are cumulative of those already considered at the time of the previous final denial. The records submitted by the Veteran reiterate that the Veteran currently experiences the claimed disability, but that was already established at the time of the previous denial. Thus, as they are cumulative, the treatment records cannot be new and material. Anglin v. West, 203 F.3d 1343 (2000). All of the statements from the Veteran, reiterate the previously considered assertion that he believes disability is related to service. Therefore, those statements merely reiterate contentions that were previously considered by the February 1977 rating decision. Thus, those statements are cumulative and are not material evidence. The Board finds the evidence added to the claims file since the February 1977 rating decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which demonstrates that his chest disability was aggravated by service, which was the basis for the prior determination. The evidence added to the record also does not include any new competent and credible evidence showing any continuity of symptomology from service onward. The Veteran’s lay statements are merely redundant of the evidence previously considered, and the medical reports, duplicate service records, do not relate that disability to the Veteran’s active service. As the information provided in support of the application to reopen the claims for service connection for a chest disability does not include new and material evidence, the appeal as to this issue remains denied, and the claim is not reopened. REASONS FOR REMAND The Board finds that further evidentiary development is necessary before the Board can adjudicate the claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. 1. Entitlement to service connection for loss of balance; sinusitis claimed as chronic chest colds; left and right upper extremity disabilities, claimed as numbness); a chest numbness; and entitlement to increased ratings for a chest surgical scar and a ventral hernia is remanded. A review of the record indicates there are missing VA treatment records. An October 2015 notice of hospitalization shows that the Veteran was hospitalized for psychiatric reasons but the record does not include any treatment records of that treatment. The February 2016 private evaluation reports the hospitalization was a suicide attempt. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). In light of the absence of VA treatment records in the claims file, VA has a duty to attempt to obtain those records on remand. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed a pleurisy; sleep apnea; and hepatitis C is remanded. The Veteran underwent examinations for COPD, sleep apnea, and hepatitis C in March 2014. The Veteran contends those disabilities are secondary to an April 1976 chest operation. Although the March 2014 examiner addressed whether each disability was proximately due to the Veteran’s April 1976 chest surgery, an opinion on direct service connection was not obtained. The Board finds the opinions for those disabilities incomplete. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand is necessary to obtain an adequate VA examination. 3. Entitlement to service connection for depression, to include as secondary to service-connected surgical scar, is remanded. The Veteran was provided an examination in March 2014, nearly four years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, further allegations of a worsening condition regarding the depression have been set forth by the Veteran since those examinations. Specifically, in the October 2015 report of a hospitalization for psychiatric reasons and the February 2016 private mental evaluation that provided a positive nexus opinion. When available evidence is too old for an adequate evaluation of the Veteran’s current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the March 2014 examination remote, but the examination appears to no longer indicate the current level of severity of the Veteran’s depression. Consequently, after all outstanding medical records are associated with the claims file, more contemporaneous examinations are needed to rate the claims for increased ratings for depression. The matters are REMANDED for the following action: 1. Obtain all VA and federal treatment records not already associated with the claims file. 2. After obtaining the Veteran’s outstanding relevant VA and private medical records and associating them with the claims file, review the claims for service connection for loss of balance, sinusitis, bilateral upper extremity disabilities, chest numbness, and increased rating claims for a ventral hernia, and surgical scar disability, and consider whether additional VA examinations are necessary. 3. Then, schedule the Veteran for a VA examination with to determine the nature and etiology of any COPD or sleep apnea. The examiner must review the claims file and should note that review in the report. The examiner should obtain a complete history from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found. The examiner should note the Veteran’s lay statements. If there is another likely etiology for the Veteran’s disabilities, that should be stated and explained. Any opinion expressed should be accompanied by a complete rationale. For each diagnosis, the examiner must provide an opinion as to the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that any COPD or sleep apnea disability was caused by or is related to service or any event during service? The examiner should discuss the significance of the April 1976 chest surgery. (b.) Is it at least as likely as not (50 percent probability or greater) that any COPD or sleep apnea disability was caused by service connected disabilities, to specifically include the service-connected chest scar disability? (c.) Is it at least as likely as not (50 percent probability or greater) that any COPD or sleep apnea disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected disabilities, to specifically include the service-connected chest scar disability? 4. Then, schedule the Veteran for a VA examination with to determine the nature and etiology of hepatitis C. The examiner must review the claims file and should note that review in the report. The examiner should obtain a complete history from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found. The examiner should note the Veteran’s lay statements. If there is another likely etiology for the Veteran’s disabilities, that should be stated and explained. Any opinion expressed should be accompanied by a complete rationale. For each diagnosis, the examiner must provide an opinion as to the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that any disability was caused by or is related to service? The examiner should discuss the significance of the April 1976 chest surgery. The examiner should discuss hepatitis C risk factors and the likelihood hepatitis C was incurred during service. (b.) Is it at least as likely as not (50 percent probability or greater) that any hepatitis C disability was caused by service connected disabilities, to specifically include the service-connected scar disability? (c.) Is it at least as likely as not (50 percent probability or greater) that any hepatitis C disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected disabilities, to specifically include the service-connected scar disability? 5. Schedule the Veteran for a VA examination to determine the etiology of any psychiatric disability, to include depression. The examiner must review the claims file and should note that review in the report. All indicated tests and studies must be performed. The examiner should diagnose every identified psychiatric disability. The examiner must also take a full history from the Veteran. A complete rationale should be provided for all conclusions reached. The examiner must address the March 2014 VA examination and the February 2016 private mental evaluation. The examiner should provide the following information: (a.) Diagnose all mental disorders found and specifically state whether a diagnosis of depressive disorder is warranted. (b.) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disability was caused by or is related to service? The examiner should discuss the significance of the April 1976 chest surgery. (c.) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disability is proximately due to or the result of service-connected disabilities, to specifically include the service-connected scar? The examiner should specifically address the Veteran’s lay statements regarding the onset and increase of psychiatric symptoms. (d.) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disabilities, to specifically include the service-connected scar? (e.) Is it at least as likely as (50 percent or greater probability) not that a psychosis manifested within one year following separation from service? Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel